MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                          FILED
regarded as precedent or cited before any
court except for the purpose of establishing                          Jul 31 2017, 7:39 am

the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bruce W. Graham                                          Curtis T. Hill, Jr.
Graham Law Firm P.C.                                     Attorney General of Indiana
Lafayette, Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jacob T. McDaniel,                                       July 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A04-1612-CR-2877
        v.                                               Appeal from the
                                                         Tippecanoe Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Randy J. Williams, Judge
                                                         Trial Court Cause No.
                                                         79D01-1602-F2-2



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-2877 | July 31, 2017          Page 1 of 15
[1]   Jacob T. McDaniel (“McDaniel”) was convicted after a jury trial of robbery1 as

      a Level 2 felony, criminal confinement2 as a Level 5 felony, battery3 as a Level 5

      felony, auto theft4 as a Level 6 felony, theft5 as a Class A misdemeanor,

      possession of marijuana6 as a Class B misdemeanor, and four counts of invasion

      of privacy,7 each as a Class A misdemeanor. He was sentenced to an aggregate

      thirty-seven years with five years suspended. McDaniel raises the following

      restated issues for our review on appeal:


                 I.        Whether McDaniel’s convictions for robbery, criminal
                           confinement, and battery violate double jeopardy;


                 II.       Whether the trial court committed fundamental error in
                           giving certain jury instructions to the jury; and


                 III.      Whether sufficient evidence was presented to support
                           McDaniel’s conviction for robbery.


[2]   We affirm.




      1
          See Ind. Code § 35-42-5-1.
      2
          See Ind. Code § 35-42-3-3(a), (b)(1)(C).
      3
          See Ind. Code § 35-42-2-1(b)(1), (f)(1).
      4
          See Ind. Code § 35-43-4-2.5(b).
      5
          See Ind. Code § 35-43-4-2(a).
      6
          See Ind. Code § 35-48-4-11(a).
      7
          See Ind. Code § 35-46-1-15.1.


      Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-2877 | July 31, 2017   Page 2 of 15
                                  Facts and Procedural History
[3]   Kenneth Nice (“Nice”) was an elderly man who lived in Lafayette, Indiana and

      would occasionally help young people who were having difficulty with life get

      back on their feet. One of the young people that Nice helped was McDaniel.

      Nice allowed McDaniel to live with him from November 2015 through early

      February 2016. During this time, Nice provided McDaniel with food and a

      bedroom and private bath to use at Nice’s home. In February of 2016, Nice

      asked McDaniel to move out because he believed McDaniel was using drugs.


[4]   On February 8, 2016, after he had moved out of Nice’s home, McDaniel called

      Nice and asked him for money for groceries. Nice told McDaniel that he was

      preparing a meal and invited McDaniel to come to the house and eat.

      McDaniel accepted the invitation, and when McDaniel arrived, Nice let him in

      and then went back to the kitchen. McDaniel went downstairs and apparently

      noticed a bedspread on a bed which he had not seen before. McDaniel yelled

      for Nice to come downstairs, and Nice did so. After Nice explained the

      meaning of the quilt to McDaniel, he turned around to leave, and McDaniel

      grabbed him from behind. Nice struggled to get away and yelled for McDaniel

      to let go of him. McDaniel then struck Nice in the head and “knocked [him]

      out.” Tr. Vol. II at 115-16.


[5]   After being unconscious for an unknown amount of time, Nice regained

      consciousness and found himself lying in a spare bedroom downstairs. Nice

      discovered that his ankles, hands, face, neck, and head had been wrapped in

      duct tape, and he was unable to move. Nice could only see through a tiny hole
      Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-2877 | July 31, 2017   Page 3 of 15
      in the tape by his left eye. Sometime after Nice regained consciousness,

      McDaniel returned to the spare bedroom and sprinkled something on Nice,

      which Nice later learned was bleach. Id. at 116-17. Nice did not move, hoping

      that McDaniel would believe he was still unconscious. Nice waited until he

      thought that McDaniel had left the residence, and then began working on

      extricating himself from the duct tape. Nice discovered that McDaniel had

      blocked the door to the spare bedroom with a table, but Nice was able to push

      the door open.


[6]   Nice went into the kitchen and used a knife to cut the tape from his ankles.

      When Nice tried to use the phone to call for help, he found that McDaniel had

      disabled it, so Nice went to a neighbor’s house to get help. The neighbor called

      911, and Lafayette Police Department Officer Robert Petillo (“Officer Petillo”)

      was dispatched to the neighbor’s home. Officer Petillo observed that Nice’s

      head was “covered in blood” and that there was swelling of Nice’s right eye.

      Id. at 24. Nice was still bound with duct tape around his wrists and still had

      tape around his face area. It was difficult for Officer Petillo to assess the extent

      of Nice’s injuries because of the amount of blood. Nice provided Officer Petillo

      with the name of his attacker, and when officers learned that Nice’s Nissan

      Maxima was missing, a description of the vehicle and license plate number was

      broadcast to law enforcement.


[7]   As the investigation proceeded, officers learned that a television, a jewelry box,

      a gold watch, a wallet, some tax papers, and Nice’s dog had been taken from

      his home. Later that afternoon, Lafayette Police Department Officer Arron

      Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-2877 | July 31, 2017   Page 4 of 15
      Dobrin (“Officer Dobrin”) was on patrol and observed the stolen Nissan. The

      Nissan evaded the officer, but Officer Dobrin noticed that the driver was

      wearing a red hat. Shortly thereafter, officers located the Nissan in a parking

      lot at the River’s Edge apartments. Officer Dobrin had previously obtained a

      photograph of McDaniel and noticed McDaniel walking away from the

      apartments. Officer Dobrin also observed that McDaniel was wearing a red hat

      and matched the photo of the suspect. Officer Dobrin stopped McDaniel and

      placed him under arrest at that time. The Nissan was searched, and the officers

      found several of the items stolen from Nice in the car. The police also found

      other items not belonging to Nice in the vehicle, and two of the items contained

      DNA that matched McDaniel. Id. at 92, 245-48.


[8]   Meanwhile, Nice was taken to the hospital and treated by Lindsey Spurgeon

      (“Spurgeon”), a registered nurse. When Spurgeon encountered Nice, she

      noticed that he was “covered in blood.” Id. at 168. Spurgeon also observed

      that Nice had “visible injuries and deformities to the face” and that “his clothes

      smelled of bleach.” Id. Nice told Spurgeon that someone “had repeatedly

      kicked him and hit him in the head and that he believed that he had lost

      consciousness.” Id. at 169. Spurgeon observed that Nice “had a deformity to

      the nose, bleeding from the nose, bruising and swelling to the right eye, . . .

      [and] an open actively bleeding laceration to the right side of his face.” Id. at

      171. Spurgeon also saw that Nice “had visible injury to the left side of his

      head.” Id. Additionally, Spurgeon noticed “injuries to [Nice’s] wrist and

      ankles [that] were consistent with being duct taped.” Id. at 172.


      Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-2877 | July 31, 2017   Page 5 of 15
[9]    A CT scan was performed on Nice’s head and showed that he had a “left

       subdural hematoma,” which was “classified as a traumatic brain injury” and

       can be a life-threatening injury. Id. at 173, 175. A CT scan of Nice’s face

       showed that he had multiple facial injuries, which included “bilateral non-

       displaced superial nasal bone fractures,” a “displaced nasal septil fracture,” a

       “displaced anterial wall sinus fracture,” an “intra-sinus hemorrhage,” and “soft

       tissue hematoma” “under his right nasal region.” Id. at 175-77. Nice also “had

       an elevated serum lactate,” which can cause a person to go into “shock,” and

       was admitted to the hospital. Id. at 177.


[10]   On February 12, 2016, the State charged McDaniel with Level 2 felony

       robbery, Level 5 felony criminal confinement, Level 5 felony battery, Level 6

       felony auto theft, Class A misdemeanor theft, and Class B misdemeanor

       possession of marijuana.8 After McDaniel’s arrest, a no contact order was

       issued, ordering McDaniel to not have contact with Nice. While incarcerated,

       McDaniel placed several phone calls to Nice. As a result, the State additionally

       charged McDaniel with five counts of Class A misdemeanor invasion of

       privacy. A jury trial was held, and at the conclusion, McDaniel was found

       guilty on all counts. The trial court sentenced him to a thirty-seven-year

       aggregate sentence with five years suspended, for a total of thirty-two years

       executed. McDaniel now appeals.




       8
           McDaniel was also charged with Class A misdemeanor possession of marijuana, which was later dismissed.


       Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-2877 | July 31, 2017          Page 6 of 15
                                      Discussion and Decision

                                          I.       Double Jeopardy
[11]   McDaniel argues that his convictions for robbery, criminal confinement, and

       battery violate the double jeopardy provision of the Indiana Constitution. The

       Indiana Double Jeopardy Clause provides, “No person shall be put in jeopardy

       twice for the same offense.” Ind. Const. art. I, § 14. We analyze alleged

       violations of this clause pursuant to our Supreme Court’s opinion in Richardson

       v. State, 717 N.E.2d 32 (Ind. 1999). In Richardson, our Supreme Court held that

       “two or more offenses are the ‘same offense’ in violation of Article I, 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.” 717 N.E.2d at 49 (emphasis in original).


[12]   Under the “actual evidence” test, a 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 all of the

       essential elements of a second challenged offense. Bunch v. State, 937 N.E.2d

       839, 845-46 (Ind. Ct. App. 2010) (citing Richardson, 717 N.E.2d at 53), trans.

       denied. Double jeopardy 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. Moore v. State, 882 N.E.2d

       788, 794 (Ind. Ct. App. 2008) (citing Smith v. State, 872 N.E.2d 169, 176 (Ind.

       Ct. App. 2007), trans. denied).
       Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-2877 | July 31, 2017   Page 7 of 15
[13]   McDaniel first contends that his convictions for both robbery and criminal

       confinement violate double jeopardy. He asserts that criminal confinement is a

       lesser included offense of robbery because the force element of robbery

       constitutes confinement, which is defined as a substantial interference with a

       person’s liberty. McDaniel argues that, in the present case, Nice was struck in

       the head, rendered unconscious, and confined with duct tape, and based on this

       evidence, the confinement was the force used to complete the robbery.


[14]   McDaniel relies on Wethington v. State, 560 N.E.2d 496 (Ind. 1990) for his

       contention that criminal confinement is a lesser included offense of robbery. In

       Wethington, our Supreme Court found a double jeopardy violation where “the

       factual basis underlying the criminal confinement charge was the same conduct

       alleged by the State to establish the ‘by force’ element necessary to support its

       charge of robbery.” Id. at 507. However, the Court noted that its holding was

       limited to cases similar to Wethington’s “where criminal confinement is

       charged along with another crime, the commission of which inherently involves

       a restraint on the victim’s liberty,” and where the language of the charging

       instrument “makes no distinction between the factual basis for the confinement

       charge and the facts necessary to the proof of an element of the other crime.”

       Id. at 508.


[15]   Here, unlike in Wethington, the charging informations for robbery and criminal

       confinement did make a factual distinction between the factual basis for the

       criminal confinement charge and the facts necessary to prove an element of the

       robbery charge. The criminal confinement charge mentioned the fact that “duct

       Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-2877 | July 31, 2017   Page 8 of 15
       tape [was] used on Nice’s head, hands, and legs,” while the robbery charge

       focused on the serious bodily injury that Nice suffered, which included

       “unconsciousness, subdural hematoma, and/or sinus and nasal bone fractures.”

       Appellant’s App. at 28-29. Therefore, to convict McDaniel of the robbery charge,

       the State was required to prove that Nice sustained serious bodily injury of

       unconsciousness, subdural hematoma, and sinus and nasal fractures, which the

       criminal confinement charge did not require, and the criminal confinement

       charge required the State to prove that Nice suffered bodily injury from being

       bound with duct tape on his head, ankles, and hands. Id. at 28-29. “[A]s long

       as ‘each conviction require[s] proof of at least one unique evidentiary fact,’ no

       violation of the actual evidence test occurs.” Weddle v. State, 997 N.E.2d 45, 47

       (Ind. Ct. App. 2013) (quoting Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002)),

       trans. denied. Because McDaniel’s convictions for robbery and criminal

       confinement required proof of at least one unique evidentiary fact, they do not

       violate double jeopardy.


[16]   McDaniel next argues that his convictions for robbery and for battery violate

       double jeopardy under the actual evidence test. He claims that the evidence

       required to prove battery, the fact that McDaniel struck Nice in the head, was

       the same evidence required to prove the force alleged to support robbery.

       McDaniel, therefore, asserts that the same evidence would have been used and

       relied on by the jury to convict him of battery and robbery.


[17]   Under the “actual evidence” test, double jeopardy is not violated when the

       evidentiary facts establishing the essential elements of one offense also establish

       Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-2877 | July 31, 2017   Page 9 of 15
       only one or even several, but not all, of the essential elements of a second

       offense. Moore, 882 N.E.2d at 794. In the present case, the crimes of battery

       and robbery do not share all the same facts or all the same elements. The crime

       of robbery required proof of the taking of another’s property, which is an

       element not required for the crime of battery. The evidence presented to

       support McDaniel’s robbery conviction included that McDaniel took personal

       property, a car, and a dog from Nice. Evidence that McDaniel took these items

       was not necessary to prove that he committed battery. The evidence further

       showed that McDaniel used force on Nice on more than one instance as Nice

       testified that McDaniel “repeatedly kicked him and hit him in the head.” Tr.

       Vol. II at 169. Additionally, although both crimes required proof of serious

       bodily injury, the evidence at trial established that Nice sustained multiple

       injuries that qualified as serious bodily injury, specifically loss of consciousness,

       sinus and nasal fractures, and a subdural hematoma. Id. at 169, 173-77. We,

       therefore, conclude that there was no reasonable possibility that the evidentiary

       facts used by the jury to establish the essential elements of robbery were also

       used to establish all of the essential elements of battery. Bunch, 937 N.E.2d at

       845-46. McDaniel’s convictions for both robbery and battery do not violate

       double jeopardy.


                                           II.      Jury Instruction
[18]   Instructing the jury lies within the sole discretion of the trial court. Eberle v.

       State, 942 N.E.2d 848, 861 (Ind. Ct. App. 2011), trans. denied. We review a trial

       court’s decision to give or refuse to give an instruction for an abuse of

       Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-2877 | July 31, 2017   Page 10 of 15
       discretion. Williams v. State, 891 N.E.2d 621, 630 (Ind. Ct. App. 2008). An

       abuse of discretion occurs where the decision is clearly against the logic and

       effect of the facts and circumstances before the trial court. Eberle, 942 N.E.2d at

       861.


[19]   McDaniel contends that the jury instruction given by the trial court invaded the

       province of the jury and deprived him of his right to a trial by jury. Because he

       failed to object during trial, McDaniel concedes that he must establish

       fundamental error. Kadrovach v. State, 61 N.E.3d 1241, 1243 (Ind. Ct. App.

       2016), trans. denied. The fundamental error exception to the contemporaneous

       objection rule is extremely narrow and applies only when an error constitutes a

       blatant violation of basic due process principles and the harm or potential for

       harm is substantial. Isom v. State, 31 N.E.3d 469, 490 (Ind. 2015), cert. denied,

       136 S. Ct. 1161 (2016). “When determining whether fundamental error has

       occurred with respect to an allegedly improper jury instruction, we do not

       examine the instruction in isolation but rather in the context of all relevant

       information presented to the jury, including closing argument and other

       instructions.” Kadrovach, 61 N.E.3d at 1243. Where all such information,

       considered as a whole, does not mislead the jury as to a correct understanding

       of the law, there is no due process violation, and thus, no fundamental error has

       occurred. Id.


[20]   In the present case, McDaniel asserts that the trial court committed

       fundamental error when it gave the following instructions to the jury, which

       both relate to the crime of robbery:

       Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-2877 | July 31, 2017   Page 11 of 15
               “From the person of another” is not limited to taking from the
               body of the person wronged, but includes taking from his
               personal presence or personal protection.


               The victim’s immediate or actual presence to the taking of the
               property is not required.


       Appellant’s App. 119-20. McDaniel does not argue that these instructions were

       an incorrect statement of the law; he claims that the instructions remove the

       burden of proof from the State “to demonstrate that property was taken from

       the person of, or the presence of” Nice, which is a factual determination that

       the jury must make. Appellant’s Br. at 20. “The purpose of a jury instruction is

       to inform the jury of the law applicable to the facts without misleading the jury

       and to enable it to comprehend the case clearly and arrive at a just, fair, and

       correct verdict.” Isom, 31 N.E.3d at 484 (internal quotations omitted).


[21]   The challenged instructions in the present case were a correct statement of the

       law and provided the jury with a full, correct statement of the law regarding the

       element of taking property from another person or from the presence of another

       person. The instructions helped fully define the taking element of robbery.

       Without such instructions, the jury would have been unsure if, under Indiana

       law, the taking element could apply to situations presented in the instant case,

       where the victim was unconscious for an unknown amount of time. Contrary

       to McDaniel’s assertion, the challenged instructions did not constitute an

       improper mandatory presumption that relieved the State of its burden of

       persuasion.


       Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-2877 | July 31, 2017   Page 12 of 15
[22]   McDaniel also contends that it was error for the trial court to use the language

       contained in the challenged instructions because it was improper to rely on

       language from a prior appellate opinion. While Indiana courts have stated,

       “[t]he mere fact that certain language or expression [is] used in the opinions of

       this Court to reach its final conclusion does not make it proper language for

       instructions to the jury,” Newbill v. State, 884 N.E.2d 383, 393 (Ind. Ct. App.

       2008), trans. denied, there is no blanket prohibition against the use of appellate

       decision language in jury instructions. Munford v. State, 923 N.E.2d 11, 15 (Ind.

       Ct. App. 2010). Therefore, the challenged instructions were not error, let alone

       fundamental error.


                                        III. Sufficient Evidence
[23]   The deferential standard of review for sufficiency claims is well settled. When

       we review the sufficiency of evidence to support a conviction, we do not

       reweigh the evidence or assess the credibility of the witnesses. Boggs v. State,

       928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We consider only the

       evidence most favorable to the verdict and the reasonable inferences that can be

       drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.

       2014), trans. denied. We also consider conflicting evidence in the light most

       favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct.

       App. 2013), trans. denied. We will not disturb the jury’s verdict if there is

       substantial evidence of probative value to support it. Fuentes, 10 N.E.3d at 75.

       We will affirm unless no reasonable fact-finder could find the elements of the

       crime proven beyond a reasonable doubt. Lock v. State, 971 N.E.2d 71, 74 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-2877 | July 31, 2017   Page 13 of 15
       2012). As the reviewing court, we respect “the jury’s exclusive province to

       weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).


[24]   McDaniel argues that the State failed to present sufficient evidence to support

       his conviction for robbery. In order to convict McDaniel of robbery as a Level

       2 felony, the State was required to prove beyond a reasonable doubt that he

       knowingly or intentionally took property from Nice or from the presence of

       Nice by using or threatening the use of force on any person or by putting Nice

       in fear, resulting in serious bodily injury to Nice. Ind. Code § 35-42-5-1.

       McDaniel concedes that the evidence at trial suggested that he entered Nice’s

       residence then struck Nice on the head, rendering him unconscious and that the

       evidence was sufficient to prove that he took property from Nice’s residence.


[25]   McDaniel specifically, contends that insufficient evidence was presented to

       prove that property was taken by force from Nice or the presence of Nice.

       McDaniel asserts that, because Nice was unconscious for an undetermined

       amount of time, there was not sufficient evidence to support an inference that

       McDaniel used force to “accomplish the intent to remove property.” Appellant’s

       Br. at 26. Because there was not sufficient evidence presented to prove that he

       took Nice’s property from Nice’s person or Nice’s presence, McDaniel claims

       that insufficient evidence existed to support his robbery conviction.


[26]   Our Supreme Court has previously upheld a robbery conviction and held that

       property can be removed from someone’s presence during a robbery even if the

       person was in a different room and not able to exercise control over the


       Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-2877 | July 31, 2017   Page 14 of 15
       property at the time it was taken. Ortiz v. State, 716 N.E.2d 345, 351-52 (Ind.

       1999). In Ortiz, credit cards were taken from the victim’s purse, which was

       located in another room, and the victim’s car was taken from the garage. Id. at

       351. The defendant argued that the victim was killed in her bedroom, most

       likely when she slept, and that the property was, therefore, not taken from the

       victim’s person or presence. Id. The Court did not agree and held that the

       defendant’s beating of the victim prevented her from retaining control over her

       property and that “a sufficiency challenge will not prevail merely because the

       taking of property and the use of force occurred in different rooms.” Id. at 352.


[27]   Here, the evidence presented at trial showed that McDaniel entered Nice’s

       home and struck Nice on the head, rendering him unconscious. He then bound

       Nice’s ankles, hands, face, neck, and head with duct tape and left Nice in a

       spare bedroom. McDaniel then took property from Nice’s residence that

       included Nice’s car, a jewelry box, jewelry, a television, a gold watch, a wallet,

       some tax papers, and Nice’s dog. We conclude that sufficient evidence was

       presented to support McDaniel’s conviction for robbery.


[28]   Affirmed.


[29]   Mathias, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1612-CR-2877 | July 31, 2017   Page 15 of 15
