MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                        Feb 15 2019, 9:21 am
regarded as precedent or cited before any
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
Rory Gallagher                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Kelly A. Loy
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jonathan Young,                                          February 15, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1480
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G04-1611-F5-45927



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 18A-CR-1480 | February 15, 2019               Page 1 of 14
[1]   Jonathan Young appeals his conviction for Level 5 felony criminal confinement

      and Level 6 felony domestic battery. He presents two issues for our review: 1)

      whether his retrial following a mistrial was barred by double jeopardy and 2)

      whether his sentence is inappropriate.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Young and Andrea Hubbard began living together in 2013. They have two

      daughters – Ev. Y., born March 20, 2014, and El. Y., born October 31, 2016.

      The family lived together in Young’s home in Marion County.


[4]   On the evening of November 28, 2016, Young came home and began arguing

      with Hubbard as she was cooking dinner. Ev. Y. was sitting in a highchair in

      the kitchen, and El. Y., a newborn, was on a couch in the living room. Young

      was very upset and angry. Eventually, the argument turned physical when

      Young ripped off Hubbard’s jewelry and her clothing and began punching her

      repeatedly in the face and head. Ev. Y. was screaming and crying in her

      highchair during the attack.


[5]   Young grabbed Hubbard by the hair and forced her into the basement. As he

      directed her down the steps, he said, “You’re never coming out of this

      basement. You’re never going to breastfeed again.” Transcript Vol. II at 81.

      Young then took Hubbard into a dark room in the basement and closed the

      door. He threw punches in the dark, striking Hubbard a couple times as she


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1480 | February 15, 2019   Page 2 of 14
      crouched down on the ground. Young moved Hubbard to a bed in the room

      and sat on her back. After forcing her mouth open and removing her prosthetic

      tooth, Young whipped Hubbard with an extension cord on her bare back about

      five times, leaving stinging and painful wounds. He used the cord to hogtie her

      before he headed back upstairs and left her in the dark.


[6]   Once alone, Hubbard was able to loosen the cord and free herself. She

      searched the basement for something to use for protection but was unable to

      find anything. She then quietly climbed the stairs and opened the basement

      door. Hubbard ran and grabbed a knife out of the kitchen as Young came after

      her again. She inched closer to the back door while struggling with Young.

      Somehow, she managed to open the back door and escape. Young followed

      her, as did Ev. Y. Hubbard, still naked, picked up Ev. Y. and ran to a

      neighbor’s house, where she called 911.


[7]   Hubbard suffered injuries over her entire body, including to her head, face,

      arms, legs, back, wrists, and ankles. Photographs depicted bruises, welts,

      abrasions, a bloodied lip, and whip/ligature marks. Emergency responders

      offered to take Hubbard to the hospital, but she declined. Police arrested

      Young at the scene.


[8]   On November 30, 2016, the State charged Young with four counts of criminal

      confinement, two counts of battery, and four counts of domestic battery. The

      charges were amended on November 28, 1017, with half of the charges

      dismissed on the State’s motion. The following charges remained: Count I,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1480 | February 15, 2019   Page 3 of 14
       Level 5 felony criminal confinement; Count III, Level 6 felony domestic

       battery; Count IV, Level 6 felony criminal confinement; Count VI, Level 6

       felony domestic battery; and Count X, Level 6 felony criminal confinement.


[9]    Within days of his arrest, Young was released on bond. He was initially

       represented by private counsel but decided to proceed pro se beginning in

       March 2017. Thereafter, Young failed to appear for a hearing on July 10, 2017,

       and the trial court issued a warrant for his arrest. The warrant was served on

       October 12, 2017, and Young has been incarcerated since that time. New

       private counsel filed an appearance on Young’s behalf following the arrest.


[10]   Young’s first jury trial commenced on May 7, 2018. After the jury was sworn

       and during the first witness’s testimony, the trial court declared a mistrial due to

       improper questioning by defense counsel on cross-examination.


[11]   Thereafter, on May 10, 2018, Young’s second jury trial was held, and the jury

       found him guilty as charged. At sentencing on July 1, 2018, the trial court

       entered convictions only on Counts I (criminal confinement resulting in bodily

       injury) and VI (domestic battery in the presence of a child less than sixteen

       years of age) and vacated the remaining counts. The trial court imposed

       concurrent prison sentences of six years with one year suspended to probation

       on Count I and one year on Count VI. Young now appeals. Additional

       information will be provided below as needed.


                                           Discussion & Decision



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1480 | February 15, 2019   Page 4 of 14
                                                     1. Mistrial


[12]   The trial court declared a mistrial near the beginning of the evidence in Young’s

       first trial. This occurred after defense counsel cross-examined Hubbard as

       follows:


               Q.       And the second argument, the one I’m referring to after he
                        came back, that was – that was about some accusations of
                        infidelity, correct?


               A.       What?


               Q.       About you having an affair possibly?


               A.       No.


               Q.       Okay. Was it about some stolen pills?


               A.       Yes.


               Q.       Okay. And you were arguing about some stolen Vicodin,
                        in particular, correct?


               A.       Yes.


       Transcript Vol. II at 50. The State objected to this line of questioning, and the

       trial court held a hearing outside the presence of the jury. During a lengthy

       colloquy with counsel, the trial court stated in regard to the accusations of

       infidelity and drug theft, “we don’t baldly assassinate character without

       something to back it up, right?” Id. at 53. Defense counsel argued that the
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1480 | February 15, 2019   Page 5 of 14
accusations were based on discussions with Young, who was not planning to

testify, and that the evidence was admissible to impeach Hubbard’s credibility.

The trial court ultimately determined that the accusations were inadmissible

and violated a motion in limine.1 Accordingly, the trial court stated:


         Something has to be said because this is not – I can’t leave it like
         this. So there has to be some agreed upon remedy if we’re going
         to go forward. Otherwise, I’m just going to mistry the case. I’m
         going to think about it for a minute. I’ll be back.


Transcript Vol. II at 55. After a brief break, the trial court returned and stated on

the record, still outside the presence of the jury:


         I’ve conferred with the attorneys and it’s my opinion that the
         damage done by the question asked that was in violation of the
         Motion in Limine puts the State in a position of peril. And in a
         position of peril that’s unfair.


         Because I had said that if anyone was going to ask any questions
         about this alleged drug use or alleged theft of a Vicodin pill, drug
         use at all, anything like that, that there had to be a hearing
         outside the presence of the jury before anybody asked that
         question. Because I don’t think there’s any way I can wipe that
         out of the mind of the jury. And we could just go on, but they’re
         still going to have that sitting there thinking, well, was she
         unfaithful? Did she use drugs? Did she steal? And those things




1
  Earlier that day, the trial court had granted a motion in limine filed by the State. It provided, in part, that
the defense not “mention, refer to, interrogate concerning, or attempt to convey to the jury in any manner, either
directly or indirectly,” without first obtaining permission of the court, “[a]ny questions, testimony, or evidence
of any drug use by the victim”. Appellant’s Appendix Vol. III at 16 (emphasis supplied).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1480 | February 15, 2019                     Page 6 of 14
               aren’t admissible and don’t matter for whether or not this took
               place.


               And so it isn’t fair to ask this jury to try to get it out of their head.
               There’s some things people just can’t do. And I don’t think it’s
               fair to go forward with jurors that have a question mark in their
               mind that I can’t erase.


       Id. at 55-56. Accordingly, the trial court declared a mistrial, discharged the

       jury, and scheduled a new trial date for three days later.


[13]   On appeal, Young argues that the trial court erred in declaring a mistrial

       because the evidence was admissible and did not violate the motion in limine.

       He also asserts that no manifest necessity existed and that the trial court failed

       to consider “alternative steps short of declaring a mistrial to cure any potential

       prejudice.” Appellant’s Brief at 13. Because the mistrial was improperly granted,

       Young contends that his second trial violated double jeopardy.


[14]   The Fifth Amendment to the United States Constitution prohibits the State

       from placing a defendant in jeopardy twice for the same offense. Jackson v.

       State, 925 N.E.2d 369, 372 (Ind. 2010). Jeopardy attaches when a jury has been

       selected and sworn. Id. at 373. The protection against double jeopardy does

       not bar a retrial, however, if the defendant consents to the mistrial or if there

       was a “manifest necessity” for the mistrial. See Brock v. State, 955 N.E.2d 195,

       200 (Ind. 2011), cert. denied; see also Jackson, 925 N.E.2d at 373 (“Once jeopardy

       has attached, the trial court may not grant a mistrial over a defendant’s

       objection unless it finds a ‘manifest necessity’ for the mistrial.”). If the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1480 | February 15, 2019   Page 7 of 14
       defendant consents to the mistrial, “then retrial is permitted as a matter of

       course, unless the defendant can prove that the government intentionally

       goaded him or her into consenting to the mistrial….” Brock, 955 N.E.2d at 200.


[15]   Thus, determining whether the State was permitted to retry Young after his first

       trial ended in a mistrial involves a multi-step analysis. See id. “We first

       consider whether he consented to the trial judge’s declaration of a mistrial…. If

       he did not consent to the mistrial, then we consider whether it was justified by a

       ‘manifest necessity.’” Id.


[16]   A defendant may consent to a mistrial in several ways. Typically, consent

       involves the defendant successfully requesting “termination of the proceedings

       on grounds unrelated to guilt or innocence” or “expressly agreeing to be tried

       again.” Id. A defendant, though, may impliedly consent to be retried by failing

       to “raise a timely objection when the government moves for a mistrial or when

       the trial court declares a mistrial sua sponte.” Id. at 202-03. Our Supreme Court

       has explained:


               This allows the defendant to control the decision whether to go
               to the first jury or to forego that option and have a different jury
               decide his or her fate. As a corollary, trial courts should allow
               time for such an objection prior to discharging the jury. This will
               give the trial court an opportunity to rethink its position and
               correct any error before discharging the jury, thereby avoiding a
               scenario in which the judge grants a mistrial but later realizes that
               there was no manifest necessity and precludes the State from
               achieving its interests in prosecuting offenders in fair trials.
               Requiring the defendant to make a choice also avoids
               transforming the protection against double jeopardy into an

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1480 | February 15, 2019   Page 8 of 14
               abusive weapon used by a defendant to avoid prosecution,
               particularly when, as here, the mistrial is precipitated by defense
               counsel’s conduct.


       Id. at 203 (citations omitted).


[17]   In this case, the trial court gave Young ample opportunity to raise a timely

       objection to a mistrial prior to the jury’s discharge. Defense counsel argued that

       the questions regarding infidelity and stolen drugs were admissible, but the trial

       court found otherwise. After determining that defense counsel’s cross-

       examination of Hubbard violated the motion in limine and was improper, the

       trial court stated:


               Something has to be said because this is not – I can’t leave it like
               this. So there has to be some agreed upon remedy if we’re going
               to go forward. Otherwise, I’m just going to mistry the case. I’m
               going to think about it for a minute. I’ll be back.


       Transcript Vol. II at 55. At this point, Young did not object on the record to a

       possible mistrial or propose alternative means to address the matter short of a

       mistrial. The trial court took a brief recess and then returned on the record

       without the jury present. The court indicated that it had conferred with the

       attorneys and had come to the conclusion that the improper questions placed

       the State in a position of unfair peril. The trial court then informed the parties

       that it was going to call a mistrial. Young did not object. Nor did Young object

       when the court proceeded to set the retrial for later that week. The trial court

       then called the jury into the courtroom and excused the jury.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1480 | February 15, 2019   Page 9 of 14
[18]   As set forth above, we first consider whether the defendant consented to the

       mistrial. Only when there was no consent (actual or implied) do we then

       consider “the propriety of defense counsel’s comments” and whether any

       “improper comments constituted a manifest necessity for declaring a mistrial.”

       Brock, 955 N.E.2d at 204, 206. We agree with the State that Young consented

       to the mistrial by failing – despite ample opportunity – to timely object to the

       trial court’s stated intention to call a mistrial.2 Accordingly, Young waived his

       double jeopardy claim. See Jester v. State, 551 N.E.2d 840, 842 (Ind. 1990)

       (defendant waived double jeopardy claim “where he made no objection to the

       court’s declaration of the mistrial”).


                                                         Sentence


[19]   Young challenges his sentence as inappropriate. Article 7, section 4 of the

       Indiana Constitution grants our Supreme Court the power to review and revise

       criminal sentences. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014), cert.

       denied. Pursuant to Ind. Appellate Rule 7, the Supreme Court authorized this

       court to perform the same task. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

       2008). Per App. R. 7(B), we may revise a sentence “if after due consideration

       of the trial court’s decision, the Court finds that the sentence is inappropriate in

       light of the nature of the offense and the character of the offender.” Inman v.




       2
        In his reply brief, Young asserts that by arguing at trial that he did not violate the motion in limine or
       Indiana Rules of Evidence, he not only objected to the trial court’s basis for declaring a mistrial but also the
       mistrial itself. The case he cites to, however, does not support this proposition.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1480 | February 15, 2019                   Page 10 of 14
       State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7). “Sentencing review

       under Appellate Rule 7(B) is very deferential to the trial court.” Conley v. State,

       972 N.E.2d 864, 876 (Ind. 2012). “Such deference should prevail unless

       overcome by compelling evidence portraying in a positive light the nature of the

       offense (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[20]   It is not our goal in this endeavor to achieve the perceived “correct” sentence in

       each case. Knapp, 9 N.E.3d at 1292. Accordingly, “the question under

       Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,

       the question is whether the sentence imposed is inappropriate.” King v. State,

       894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original). Further, on

       appeal, Young bears the burden of persuading us that his sentence is

       inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[21]   We initially address Young’s multiple assertions that he received the maximum

       sentence. He did not. Young was convicted of Level 5 felony criminal

       confinement, which carries a sentencing range of one to six years with an

       advisory sentence of three years. See Ind. Code § 35-50-2-6(b). He was also

       convicted of Level 6 felony domestic battery, which carries a sentencing range

       of between six months and two and one-half years with an advisory sentence of

       one year. See I.C. § 35-50-2-7(b). Thus, Young faced a maximum sentence of

       seven years in prison. See I.C. § 35-50-1-2(d)(2) (placing a limit of seven years

       for consecutive terms of imprisonment arising out of an episode of criminal

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1480 | February 15, 2019   Page 11 of 14
       conduct where defendant’s most serious crime is a Level 5 felony). The trial

       court imposed an aggregate sentence of six years in prison with one of those

       years suspended to probation.


[22]   With respect to his character, Young asserts that he has a history of stable

       employment, significant family support, and no history of violence as an adult.

       Young also implies that he suffers from mental illness, involving paranoia and

       delusional thinking. We initially observe that Young’s claims of mental illness

       and history of stable employment are not clearly supported by the record.

       Following a psychiatric evaluation in 2018, the psychiatrist found: “Young did

       not appear to meet criteria for diagnosis with any serious mental disorder, such

       as schizophrenia, bipolar disorder or major depression. He also did not meet

       criteria for diagnosis with any personality disorder.” Appellant’s Appendix Vol.

       III at 5-6. Additionally, the only evidence regarding Young’s past employment

       was that he worked for a friend’s company as a painter for about six months

       while out on bond in this case. His friend reported that Young was a good

       employee and had a job waiting for him upon his release.


[23]   The record reveals that at thirty-five years of age Young had a significant

       criminal history. Starting as early as age fourteen, Young had multiple

       encounters with the juvenile system, including allegations of battery, forgery,

       disorderly conduct, and multiple counts of theft. His adult criminal history

       began at the age of eighteen. Young accumulated eight misdemeanor

       convictions from 2002 through 2014, in six different Indiana counties.

       Additionally, in 2009, Young was found in violation of probation, resulting in

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1480 | February 15, 2019   Page 12 of 14
       an extension of his probation by six months. Although his adult convictions are

       for non-violent crimes (i.e., drug possession, OWI, and driving while

       suspended), their sheer number and breadth are indicative of his general

       disregard for the law and poor character.


[24]   We find particularly telling of Young’s character the fact that he attacked

       Hubbard in front of their toddler. Instead of being swayed to stop by hearing

       Ev. Y.’s screaming and crying, he simply moved Hubbard to the basement to

       continue and escalate the attack. Further, the record shows that Young has no

       remorse for his actions. In fact, at sentencing, he continued to portray himself

       as the victim, indicating that he had “been thrown through the ringer” and

       describing the situation as “water under the bridge.” Transcript Vol. II at 199.

       Young stated, “I wish to move on with my life. I obviously have priorities that

       are set beyond roomiating (sic) on my relationship with Andrea.” Id.


[25]   Turning to the nature of Young’s offense, we observe that his drawn-out,

       violent attack on Hubbard was particularly horrific and went well beyond that

       necessary to establish the underlying offenses. As noted above, the couple’s

       toddler had a front-row view of the attack as she sat in her highchair crying.

       Young stripped Hubbard of her jewelry and clothing and proceeded to punch

       her multiple times about the head and face. Hubbard did not fight back. He

       then dragged Hubbard by her hair to the basement, where he threatened her

       and continued the violence by punching her and whipping her multiple times

       with an electrical cord. He then hogtied Hubbard with the cord and left her in

       the dark basement. When Hubbard eventually freed herself and crept upstairs,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1480 | February 15, 2019   Page 13 of 14
       Young struggled with her to keep her from leaving. Hubbard managed to

       escape out of the back door and ran naked with Ev. Y. to a neighbor’s home for

       help. Aside from the emotional toll, Hubbard suffered multiple physical

       injuries. She described at trial the stinging pain she endured from being

       whipped across her bare back, injuries from which are pictured in the record.


[26]   In sum, we conclude that Young’s sentence of five years executed in prison and

       one year on probation is not inappropriate in light of the nature of his offense or

       his character. Accordingly, the sentence imposed by the trial court was not

       inappropriate.


[27]   Judgment affirmed.


       Najam, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1480 | February 15, 2019   Page 14 of 14
