MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                               FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    Aug 28 2018, 10:16 am

court except for the purpose of establishing                                         CLERK
                                                                                 Indiana Supreme Court
the defense of res judicata, collateral                                             Court of Appeals
                                                                                      and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jerry T. Drook                                           Curtis T. Hill, Jr.
Marion, Indiana                                          Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian Zachari Bruce,                                     August 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-891
        v.                                               Appeal from the Grant Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey D. Todd,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         27D01-1603-F1-2



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-891 | August 28, 2018                      Page 1 of 10
                                                   Case Summary
[1]   Brian Zachari Bruce (“Bruce”) appeals his convictions, following guilty pleas,

      for neglect of a dependent, as a Level 3 felony,1 and battery, as a Level 5

      felony.2 He raises only one issue on appeal, namely, whether his convictions

      violate the Indiana Double Jeopardy clause.3 We affirm.



                                    Facts and Procedural History
[2]   In March and April of 2016, the State charged Bruce with the following: count

      I, child molesting, as a Level 1 felony;4 count II, neglect of a dependent

      resulting in serious bodily injury, as a Level 3 felony; count III, battery resulting

      in serious bodily injury to a person less than fourteen years of age, as a Level 3

      felony;5 count IV, battery resulting in serious bodily injury to a person less than

      fourteen years of age, as a Level 3 felony;6 count V, battery on a person less

      than fourteen years old, as a Level 5 felony; count VI, possession of marijuana,




      1
          Ind. Code § 35-46-1-4(a)(1) and (2).
      2
          I.C. § 35-42-2-1(b)(1) and (f)(5)(B).
      3
        Generally, when a defendant pleads guilty, he waives his right to challenge his convictions on double
      jeopardy grounds. Mapp v. State, 770 N.E.2d 332, 334 (Ind. 2002). However, where, as here, the defendant
      pleads guilty without the benefit of a plea agreement, there is no waiver. McElroy v. State, 864 N.E.2d 392,
      396 (Ind. Ct. App. 2007), trans. denied.
      4
          I.C. § 35-42-4-3(a)(1).
      5
          I.C. § 35-42-2-1(b)(1) and (i) (2016).
      6
          Id.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-891 | August 28, 2018                   Page 2 of 10
      as a Class B misdemeanor;7 and count VII, possession of paraphernalia, as a

      Class C misdemeanor.8 The victim in Counts I through V was the

      developmentally-delayed, three-year-old son (“K.L.”) of Bruce’s girlfriend, with

      whom Bruce had been living since January 2016.


[3]   On September 27, 2017, the State filed an “Information to the Trial Court” in

      which it indicated that the State agreed that the sentences under counts II, III,

      and IV should run concurrently. App. Vol. II at 49.


[4]   At a November 27, 2017 guilty plea hearing, Bruce pled guilty to all charges,

      without the benefit of a plea agreement. Regarding count II, neglect of a

      dependent resulting in serious bodily injury, Bruce testified as follows:


                 Defense Counsel: In regards to Count 2. Um, on or about the
                 dates between [January 1, 2016,]9 and March 21, 2016, in Grant
                 County, Indiana[, d]id you [at] anytime during this period have
                 the care of K.L.?


                 Bruce: Yes, ma’am.




      7
          I.C. § 35-48-4-11(a)(1).
      8
          I.C. § 35-48-4-8.3(b)(1).
      9
        We note that defense counsel erroneously stated that the beginning date of the relevant time-period for
      count II was February 1, 2016, rather than January 1, 2016. Tr. at 10. However, it is clear from the
      Information (App. Vol. II at 21-22), the presentence investigation report (App. Vol. III at 4), and Bruce’s own
      appeal brief (Appellant’s Br. at 7), that the correct time-period was January 1, 2016, to March 21, 2016.
      Moreover, even if the beginning date for count II was February 1, 2016, that fact would have no effect on our
      analysis of Bruce’s contentions on appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-891 | August 28, 2018                    Page 3 of 10
              Counsel: And while you had care of him, he was therefore a
              dependent of yours. … Is that correct?


              Defendant: Yes.


              Counsel: During that time, did you knowingly place [K.L.] in a
              situation that may have endangered his life or health[?] Such as,
              did you commit multiple batteries against him?


              Bruce: Yes.


              ***


              Prosecutor: Want to direct your attention to Count 2[,] Neglect[.
              U]h, when you was [sic] watching him, did he suffer the injuries
              of multiple fractures and did he suffer extreme physical pain
              because of your neglect?


              Bruce: Yes.


      Tr. at 10-11, 14-15.


[5]   Regarding count V, battery on a person less than fourteen years old, Bruce

      testified as follows:


              Defense Counsel: On or about January 1, 2016[,] and March 19,
              2016, Grant County, Indiana—sorry[,] between those days[,
              w]ere you again thirty years old?


              Bruce: Yes, ma’am.


              Counsel: Was K.L. again three years old?

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-891 | August 28, 2018   Page 4 of 10
              Bruce: Yes, ma’am.


              Counsel: Did you knowingly and/or intentionally touch him in
              a rude, insolent, or angry manner?


              Bruce: Yes, ma’am.


              Counsel: Did that result in bodily injury, such as bruises and/or
              physical pain?


              Bruce: Yes, ma’am.


      Id. at 13.


[6]   The trial court found that Bruce understood the nature of, and possible

      penalties for, the crimes charged, and that Bruce’s guilty plea was knowing and

      voluntary. The trial court also found there was a factual basis for Bruce’s plea.

      The court took the plea under advisement, ordered a presentence investigation

      report, and set a sentencing hearing.


[7]   At the March 12, 2018, sentencing hearing, the State presented State’s Exhibit

      1, a Riley Hospital report related to K.L.’s injuries, and it was admitted without

      objection. The report, dated March 21, 2016, stated that K.L. was “a near 4

      year old male with global developmental delay who has been [a] victim of child

      maltreatment in the form of repetitive episodes of physical abuse and sexual

      abuse as reportedly confessed by [K.L.’s mother and Bruce,] resulting in

      extensive near total body soft tissue injuries, spinal column vertebral body

      fractures, and intracranial hemorrhage.” Ex. at 8. The report noted fifty-six

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-891 | August 28, 2018   Page 5 of 10
      soft tissue injuries, multiple spinal column fractures, and brain injuries. Id. at 8-

      10. The report concluded that K.L.’s “extensive and life-threatening injuries are

      the result of child abuse/abusive head trauma.” Id. at 11.


[8]   “Pursuant to [Bruce’s] pleas of guilty,” the trial court entered judgment on all

      counts. Tr. at 60. In issuing its sentence, the court noted that it found that

      Bruce’s actions against K.L. were “not a single episode of criminal conduct.”

      Id. at 63. It sentenced Bruce to thirty-nine years executed in the Department of

      Correction for count I, child molesting; fifteen years for count II, neglect of a

      dependent; fifteen years for each of counts III and IV, battery causing serious

      bodily injury; six years for count V, battery causing bodily injury; 180 days for

      count VI, possession of marijuana; and sixty days for count VII, possession of

      paraphernalia. The trial court ordered that counts I, V, VI, and VII be

      consecutively served and that counts II, III, and IV be concurrently served with

      the other counts. This appeal ensued.



                                 Discussion and Decision
[9]   Bruce maintains that his convictions for count II, neglect, and count V, battery,

      violate the Double Jeopardy Clause10 of the Indiana Constitution. Specifically,




      10
         Indiana’s Double Jeopardy clause provides: “No person shall be put in jeopardy twice for the same
      offense.” Ind. Const. art. 1, § 14.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-891 | August 28, 2018                 Page 6 of 10
       Bruce contends that the convictions 11 violate the “actual evidence” test

       articulated in Richardson v. State, 717 N.E.2d 32 (Ind. 1999):


               [T]wo or more offenses are the “same offense” in violation of
               Article 1, Section 14 of the Indiana Constitution, if, with respect
               to either the statutory elements of the challenged crimes or the
               actual evidence used to convict, the essential elements of one
               challenged offense also establish the essential elements of another
               challenged offense.


       Id. at 49 (emphasis in original). We review de novo a claim under either prong

       of the “same offense” standard. E.g., Jones v. State, 976 N.E.2d 1271, 1275 (Ind.

       Ct. App. 2012), trans. denied.


[10]   To show a double jeopardy violation under the actual evidence test, the

       “defendant must demonstrate a reasonable possibility that the evidentiary facts

       used by the fact-finder to establish the essential elements of one offense may

       also have been used to establish the essential elements of a second challenged

       offense.” Richardson, 717 N.E.2d at 53 (emphasis added). Under this test, the

       reviewing court looks at the actual evidence presented to the fact-finder. Id.

       The “reasonable possibility” standard requires substantially more than a logical

       possibility; rather, “it turns on a practical assessment of whether the [fact-finder]

       may have latched on to exactly the same facts for both convictions.” Lee v.

       State, 892 N.E.2d 1231, 1234 (Ind. 2008); see also Spivey v. State, 761 N.E.2d 831,




       11
          We note that a double jeopardy violation “cannot be remedied by the practical effect of concurrent
       sentences.” Hines v. State, 30 N.E.3d 1216, 1221 (Ind. 2015) (quotations and citations omitted).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-891 | August 28, 2018                  Page 7 of 10
       833 (Ind. 2002) (“[T]he Indiana Double Jeopardy Clause is not violated when

       the evidentiary facts establishing the essential elements of one offense also

       establish only one or even several, but not all, of the essential elements of a

       second offense.”).


[11]   Bruce pled guilty to neglect and battery. However, the factual basis for his

       guilty pleas consisted merely of Bruce admitting the elements of each offense.

       On the neglect charge, he admitted that, over a period of almost three months,

       he had the care of three-year-old K.L. and knowingly placed K.L. in a situation

       that endangered K.L.’s life or health—i.e., multiple batteries—which resulted in

       bodily injury that caused extreme pain. Tr. at 10-11, 14-15. These are the

       precise elements of neglect of a dependent resulting in serious bodily injury, as a

       Level 3 felony. See I.C. § 35-46-1-4(a)(1) and (2) (neglect); I.C. § 35-31.5-2-292

       (defining “serious bodily injury”); I.C. § 35-46-1-1 (defining “dependent”). On

       the battery charge, Bruce admitted that, over a period of almost three months,

       he knowingly and/or intentionally touched three-year-old K.L. in a rude,

       insolent, or angry manner which caused K.L. bodily injury. Tr. at 13. Again,

       these are simply the elements of battery on a person less than fourteen years of

       age. See I.C. § 35-42-2-1(b)(1) and (f)(5)(B) (battery); I.C. § 35-31.5-2-29

       (defining bodily injury).


[12]   While these admissions provide a sufficient factual basis for the guilty plea, they

       provide no basis upon which we can conclude there was a double jeopardy

       violation under the actual evidence test. See Kunberger v. State, 46 N.E.3d 966,

       972 and n.2 (Ind. Ct. App. 2015) (holding the defendant failed to show that the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-891 | August 28, 2018   Page 8 of 10
fact-finder used the same facts for two different convictions where the only

factual basis for the guilty pleas was the defendant’s admissions to the elements

of each crime); see also Lumbley v. State, 74 N.E.3d 234, 242 (Ind. Ct. App. 2017)

(same), trans. denied. Here, as in Kunberger, it is “practically impossible” to

make a double jeopardy determination because the factual basis for Bruce’s

guilty pleas consists merely of Bruce’s admissions to the elements of the crimes.

46 N.E.3d at 972. And, even if we consider the facts contained in the charging

information, the presentence investigation report, and the Riley report filed at

the sentencing hearing, we still cannot say with any certainty that the same acts

were the basis for both crimes. Id. This is especially true because Bruce

admitted the crimes were committed over an extended period of time—i.e.,

almost three months—but there is no evidence as to exactly when Bruce

committed the neglect and when he committed the count V battery.12 The only

evidence regarding the timing of K.L.’s injuries is contained in the Riley report,

which concludes that the injuries were caused by “repetitive episodes” of abuse.

Ex. at 8. Thus, the two offenses in counts two and five could have been

established by separate and distinct facts, given the time span. Kunberger, 46

N.E.3d at 972 (finding it “not unreasonable to believe” the offenses could have

been established by separate and distinct facts “[g]iven the time span” of a few

hours within the same day).




12
   Compare counts III and IV, where there was evidence that the batteries occurred on two different,
specified dates. Tr. at 11-12.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-891 | August 28, 2018                  Page 9 of 10
[13]   Since a “reasonable possibility” requires “substantially more than a logical

       possibility” that the same evidentiary facts were used for both convictions, we

       cannot conclude that Bruce’s convictions violated the Double Jeopardy clause.

       Kunberger, 46 N.E.3d at 972 (citing Lee, 892 N.E.2d at 1236).


[14]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-891 | August 28, 2018   Page 10 of 10
