MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             FILED
this Memorandum Decision shall not be                          Jun 24 2020, 9:12 am
regarded as precedent or cited before any
                                                                   CLERK
court except for the purpose of establishing                   Indiana Supreme Court
                                                                  Court of Appeals
the defense of res judicata, collateral                             and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Brooklyn, Indiana                                        Attorney General of Indiana
                                                         Tina L. Mann
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Andrew D. Hunter,                                        June 24, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2987
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Kelli Fink,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1901-F5-564



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2987 | June 24, 2020          Page 1 of 7
                                             Case Summary
[1]   Andrew Hunter appeals his conviction for criminal confinement, a Level 5

      felony. We affirm.


                                                     Issue
[2]   Hunter raises one issue, which we restate as whether his conviction for criminal

      confinement, a Level 5 felony, violates the prohibition against double jeopardy.


                                                     Facts
[3]   On January 21, 2019, Hunter punched his girlfriend, Sarah Nernberger, in the

      eye and the mouth after she refused to “take him places and give him money.”

      Tr. Vol. II p. 80. Hunter grabbed Nernberger, took her into the bathroom, and

      shut the door. Hunter then grabbed Nernberger’s hair and slammed her head

      against the toilet. Hunter strangled Nernberger with his hands around her neck

      until she was “gasping for air.” Id. at 83. Hunter then took a shower but told

      Nernberger: “If you get up and leave this bathroom I’ll kill you” and “I’ll come

      after your family and I’ll go to your daughter’s school.” Id.


[4]   After Hunter finished his shower, he allowed Nernberger to leave the

      bathroom. Hunter screamed at Nernberger to leave the apartment and said, “if

      you call the cops, I’ll kill you and come after your family.” Id. at 84.

      Nernberger left the apartment and went to her sister’s house, and Nernberger’s

      family called the police. Officers arrested Hunter and placed him in handcuffs

      in a police car. On the way to the police station, Hunter complained that the

      handcuffs were on too tight, so the officer stopped the vehicle to loosen the
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2987 | June 24, 2020   Page 2 of 7
      handcuffs. As the officer was trying to adjust the handcuffs, Hunter began

      struggling with the officer, and a citizen helped secure Hunter until other

      officers could arrive.


[5]   The State charged Hunter with criminal confinement, a Level 5 felony;

      attempted escape, a Level 5 felony; intimidation, a Level 6 felony;

      strangulation, a Level 6 felony; and domestic battery, a Class A misdemeanor.

      The State also alleged that Hunter was a habitual offender. The State later

      added an additional charge of invasion of privacy, a Class A misdemeanor.


[6]   Hunter pleaded guilty to the invasion of privacy charge, and a jury found

      Hunter guilty of criminal confinement, a Level 5 felony; resisting law

      enforcement, a Class A misdemeanor; intimidation, a Level 6 felony;

      strangulation, a Level 6 felony; and domestic battery, a Class A misdemeanor.

      Hunter admitted that he is an habitual offender. The trial court sentenced

      Hunter to concurrent terms of: five years for the criminal confinement

      conviction, enhanced by three years due to Hunter’s status as an habitual

      offender; two years on the intimidation and strangulation convictions; and ten

      months on the misdemeanor convictions, for an aggregate sentence of eight

      years in the Department of Correction. Hunter now appeals.


                                                  Analysis
[7]   Hunter argues that his conviction for criminal confinement, a Level 5 felony,

      violates the prohibition against double jeopardy. The Indiana Constitution

      provides that “[n]o person shall be put in jeopardy twice for the same offense.”

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2987 | June 24, 2020   Page 3 of 7
      Ind. Const. art. 1, § 14. The Indiana Supreme Court has held that “two 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.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). “On

      appeal, the defendant bears the burden to show that his convictions violated his

      constitutional right to be free from double jeopardy.” Johnston v. State, 126

      N.E.3d 878, 889 (Ind. Ct. App. 2019), trans. denied.


[8]   Hunter presents no argument that his conviction violates the statutory elements

      test; rather, Hunter contends that his conviction violates the actual evidence

      test.


              In order to find a double jeopardy violation under the actual
              evidence test, a reviewing court must conclude there is a
              reasonable possibility that the evidentiary facts used by the
              factfinder to establish the essential elements of an offense for
              which the defendant was convicted or acquitted may also have
              been used to establish all the essential elements of a second
              challenged offense.


      Hines v. State, 30 N.E.3d 1216, 1222 (Ind. 2015). “Application of this test

      requires the court to ‘identify the essential elements of each of the challenged

      crimes and to evaluate the evidence from the jury’s perspective. . . .’” Id.

      (quoting Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008)). “In determining the

      facts used by the fact-finder, ‘it is appropriate to consider the charging


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2987 | June 24, 2020   Page 4 of 7
       information, jury instructions, [ ] arguments of counsel’ and other factors that

       may have guided the jury’s determination.” Id. (quoting Lee, 892 N.E.2d at

       1234).


[9]    First, we note that Hunter argues his conviction for criminal confinement

       “cannot stand” and “should be vacated.” Appellant’s Br. pp. 8, 12, 13. “A

       violation of double jeopardy principles requires that we vacate the conviction

       with the less severe penal consequences.” Johnston, 126 N.E.3d at 890 (emphasis

       added). Hunter, however, argues that we should vacate the conviction with the

       most severe penal consequences. Hunter’s argument fails.


[10]   Next, we will address whether Hunter’s convictions for criminal confinement,

       battery, strangulation, and intimidation violate the actual evidence test. Hunter

       argues:


                Nernberger testified she felt unable to leave the bathroom, even
                though Hunter had not physically restrained her, because Hunter
                had hit, choked, and threatened her. In order to prove Hunter
                had confined Nernberger, the jury had to rely on the same
                evidentiary facts that established Hunter had battered, choked,
                and intimidated Nernberger. Otherwise, it would have appeared
                as if Nernberger was simply sitting in the bathroom,
                unrestrained, while Hunter showered.


       Appellant’s Br. p. 12.


[11]   The criminal confinement charging information provided: “Andrew D. Hunter

       did knowingly or intentionally confine Sarah Nernberger without the consent of

       Sarah Nernberger, said act resulting in bodily injury to Sarah Nernberger . . . .”

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2987 | June 24, 2020   Page 5 of 7
       Appellant’s App. Vol. II p. 20; see Ind. Code § 35-42-3-3. The intimidation

       charging information provided: “Andrew D. Hunter did communicate a threat

       to commit a forcible felony to Sarah Nernberger, with the intent that said Sarah

       Nernberger engage in conduct against the will of said other person . . . .”

       Appellant’s App. Vol. II p. 20; see Ind. Code § 35-45-2-1. The strangulation

       charging information provided: “Andrew D. Hunter in a rude, insolent or angry

       manner, did knowingly or intentionally apply pressure to the throat or neck of

       Sarah Nernberger and/or obstruct the nose or mouth of Sarah Nernberger

       and/or apply pressure to the torso of Sarah Nernberger in a manner that

       impeded normal breathing or blood circulation of Sarah Nernberger . . . .”

       Appellant’s App. Vol. II p. 20; see Ind. Code § 35-42-2-9. The battery charging

       information provided: “Andrew D. Hunter did knowingly or intentionally

       touch Sarah Nernberger, a family or household member[,] in a rude, insolent or

       angry manner by striking, grabbing, squeezing and/or pushing said victim . . .

       .” Appellant’s App. Vol. II pp. 20-21; see Ind. Code § 35-42-2-1.3.


[12]   In closing arguments, the State delineated the separate evidence that supported

       each of the charges. The State argued that the criminal confinement charge was

       supported by evidence that Hunter confined Nernberger in the bathroom and

       hit her head on the toilet. The State argued that the intimidation charge was

       supported by Hunter telling Nernberger “if you call the cops I’m going to kill

       your . . . family.” Tr. Vol. III pp. 18-19. The State argued that the

       strangulation charge was supported by evidence showing that Hunter grabbed

       Nernberger by the throat and squeezed until her breathing was impeded.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2987 | June 24, 2020   Page 6 of 7
       Finally, the State argued that the domestic battery charge was proved by

       evidence that Hunter hit Nernberger in the eye and mouth.


[13]   The State did not rely on the evidence supporting the charges of battery,

       strangulation, or intimidation as the evidence that Hunter confined Nernberger.

       There was evidence of criminal confinement that went beyond the evidence

       used to prove the commission of the other offenses. We conclude there is no

       reasonable probability that the jury used the same evidentiary facts to support

       Hunter’s conviction for criminal confinement that the jury used to support

       Hunter’s convictions for intimidation, strangulation, and battery. Hunter’s

       double jeopardy argument fails.


                                                 Conclusion
[14]   Hunter has failed to demonstrate that his conviction for criminal confinement

       violates the prohibition against double jeopardy. We affirm.


[15]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2987 | June 24, 2020   Page 7 of 7
