MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              Jan 29 2016, 9:44 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ronald K. Smith                                          Gregory F. Zoeller
Public Defender                                          Attorney General of Indiana
Muncie, Indiana
                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Douglas L. Wilson, Jr.,                                  January 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A04-1506-CR-689
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Marianne Vorhees,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         18C01-1410-F3-3



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A04-1506-CR-689| January 29, 2016      Page 1 of 6
                                       Statement of the Case
[1]   Douglas L. Wilson, Jr. appeals his conviction for burglary, as a Level 3 felony,

      and battery, as a Level 6 felony, following a jury trial. Wilson raises two issues

      for our review, namely, whether the State presented sufficient evidence to

      support each of his convictions. We affirm Wilson’s convictions, but we

      remand with instructions for the trial court to clarify whether Wilson continues

      to have two judgments of conviction entered against him.


                                 Facts and Procedural History
[2]   On September 25, 2014, Wilson got into an argument with his brother-in-law,

      Christopher Taylor. Wilson told Taylor that Taylor “better sleep with one eye

      open.” Tr. at 4. That night, after Taylor had gone to bed in his house, he

      “woke up being drug out of bed by [his] ankles” by Wilson and two other men.

      Id. at 6. Wilson then “stomped” on Taylor’s face and hands, the back and side

      of Taylor’s head, “just anywhere he could.” Id. at 8. Taylor’s wife (and

      Wilson’s sister), Misty, awoke to Taylor “screaming for help.” Id. at 9. After

      some time, the men gave up their attack and left. Taylor then called 9-1-1.

      Taylor was “[v]ery much” in pain. Id. at 13. Taylor later noticed that one of

      his home’s windows had been forced open.


[3]   On October 6, 2014, the State charged Wilson with burglary, as a Level 3

      felony, on the grounds that he “did break and enter the dwelling of [Taylor]

      with the intent to commit a felony[] therein.” Appellant’s App. at 12. The

      State also charged Wilson with battery, as a Level 6 felony. Following the close


      Court of Appeals of Indiana | Memorandum Decision 18A04-1506-CR-689| January 29, 2016   Page 2 of 6
      of evidence, the jury found Wilson guilty on both counts, and the trial court

      “enter[ed] judgment of conviction as to Count 1 [burglary] and Count 2

      [battery].” Tr. at 98.1 However, in its sentencing order, the court ordered

      “Count 2 [battery] merge[] into Count 1 [burglary].” Appellant’s App. at 125.

      This appeal ensued.


                                          Discussion and Decision
                                     Issue One: Sufficiency of the Evidence

[4]   On appeal, Wilson challenges the sufficiency of the State’s evidence against

      him. Our standard for reviewing the sufficiency of the evidence needed to

      support a criminal conviction is as follows:

                 First, we neither reweigh the evidence nor judge the credibility of
                 witnesses. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).



      1
          Following the close of evidence, the transcript reads as follows:

                 (Final Instructions read.)


                 (Final argument by the State of Indiana.)


                 (Final argument by Defense.)


                 (Summation by the State.)


      Tr. at 97. This is completely unacceptable. Information stated audibly in a courtroom before a jury must be
      transcribed to facilitate appellate review. For example, here, having a record of the State’s closing argument
      could have made the confusion regarding merger of the two convictions, discussed below, more clear and
      enabled us to give the trial court more guidance on this issue. See, e.g., Lee v. State, 892 N.E.2d 1231, 1234
      (Ind. 2008) (“In determining the facts used by the fact-finder to establish the elements of each offense, it is
      appropriate to consider the charging information, jury instructions, and arguments of counsel.”).

      Court of Appeals of Indiana | Memorandum Decision 18A04-1506-CR-689| January 29, 2016                Page 3 of 6
              Second, we only consider “the evidence supporting the judgment
              and any reasonable inferences that can be drawn from such
              evidence.” Id. (quoting Henley v. State, 881 N.E.2d 639, 652 (Ind.
              2008)). A conviction will be affirmed if there is substantial
              evidence of probative value supporting each element of the
              offense such that a reasonable trier of fact could have found the
              defendant guilty beyond a reasonable doubt. Id. “It is the job of
              the fact-finder to determine whether the evidence in a particular
              case sufficiently proves each element of an offense, and we
              consider conflicting evidence most favorably to the trial court’s
              ruling.” Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005)
              (citations omitted).


      Willis v. State, 27 N.E.3d 1065, 1066-67 (Ind. 2015).


[5]   We first consider Wilson’s assertion that the State failed to prove he committed

      burglary, as a Level 3 felony, because the State did not show that he intended to

      commit a felony in Taylor’s home. Wilson’s argument on this issue does not

      actually discuss the evidence presented by the State. Indeed, Taylor’s testimony

      made clear that, prior to the attack, he and Wilson had had an argument and

      Wilson had told Taylor to “sleep with one eye open.” Tr. at 4. Taylor’s

      testimony then thoroughly demonstrated that Wilson battered Taylor inside

      Taylor’s home later that night. We reject Wilson’s argument that the State

      failed to present sufficient evidence that Wilson intended to commit a felony

      inside Taylor’s home.


[6]   We next consider Wilson’s argument that the State failed to prove he

      committed battery, as a Level 6 felony, because it did not show that he had

      “inflicted moderate bodily injury upon” Taylor. Appellant’s Br. at 6. But


      Court of Appeals of Indiana | Memorandum Decision 18A04-1506-CR-689| January 29, 2016   Page 4 of 6
      Wilson’s four-sentence argument on this issue is without cogent reasoning.

      Indeed, Wilson merely asserts that “Taylor’s alleged injuries did not arise [sic]

      to the level of moderate bodily injury.” Id. The jury had Taylor’s description of

      his own injuries before it and was free to reject Wilson’s argument. We affirm

      on this issue as well.


                           Issue Two: “Merger” of the Two Convictions

[7]   We next address, sua sponte, the trial court’s statement in its sentencing order

      that “Count 2 [battery] merge[] into Count 1 [burglary].” Appellant’s App. at

      125. Merger of two guilty verdicts is an oft-used tool by our trial courts to avoid

      double jeopardy violations. E.g., Payton v. State, 818 N.E.2d 493, 497 (Ind. Ct.

      App. 2004), trans. denied. However, “the trial court’s act of merging, without

      also vacating, the convictions is not sufficient” to avoid such violations. Id.

      “Indeed, a double jeopardy violation occurs when judgments of conviction are

      entered and cannot be remedied by the ‘practical effect’ of concurrent sentences

      or by merger after conviction has been entered.” Id.


[8]   Here, the trial court entered judgment of conviction against Wilson for both

      burglary and battery. The State asserts that the trial court’s order that the

      offenses be merged was based on double jeopardy concerns. But we cannot say

      that definitively. As noted above, see footnote 1, parts of the transcript are

      totally missing, and the trial court’s sentencing order does not explain the basis

      for the merger language. Indeed, the sentencing order says that the two counts

      are merged but also explicitly reaffirms that two judgments of conviction have


      Court of Appeals of Indiana | Memorandum Decision 18A04-1506-CR-689| January 29, 2016   Page 5 of 6
      been entered against Wilson.2 Accordingly, we remand with instructions for

      the court to clarify its order that “Count 2 [battery] merge[] into Count 1

      [burglary].” Appellant’s App. at 125; see, e.g., Hayden v. State, 19 N.E.2d 831,

      842 (Ind. Ct. App. 2014), trans. denied. If the basis for the court’s merger of the

      two counts was to avoid double jeopardy concerns, then we instruct the court to

      vacate the judgment of conviction on Count 2, the Level 6 felony battery.


[9]   Affirmed and remanded with instructions.


      Riley, J., and May, J., concur.




      2
        Further, while it is true that double jeopardy violations can be addressed by this court sua sponte as
      fundamental error, “[t]he issue of fundamental error is . . . determined on a case by case basis.” Taylor v.
      State, 717 N.E.2d 90, 95 n.7 (Ind. 1999). Given the record on appeal, we think the most prudent course
      going forward on whether the entry of conviction against Wilson for both burglary and battery violates his
      double jeopardy rights first requires the trial court to clarify the language in its sentencing order that “Count 2
      [battery] merge[] into Count 1 [burglary].” Appellant’s App. at 125.

      Court of Appeals of Indiana | Memorandum Decision 18A04-1506-CR-689| January 29, 2016                  Page 6 of 6
