      MEMORANDUM DECISION                                                    FILED
                                                                        Feb 28 2018, 8:36 am
      Pursuant to Ind. Appellate Rule 65(D),
                                                                             CLERK
      this Memorandum Decision shall not be                              Indiana Supreme Court
                                                                            Court of Appeals
      regarded as precedent or cited before any                               and Tax Court

      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Ryan P. Dillon                                           Curtis T. Hill, Jr.
      Maritza K. Webb                                          Attorney General of Indiana
      Dillon Legal Group, P.C.
                                                               Kelly A. Loy
      Franklin, Indiana                                        Supervising Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Nansee J. Crawford,                                      February 28, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               55A05-1708-CR-1880
              v.                                               Appeal from the Morgan Superior
                                                               Court 2
      State of Indiana,                                        The Honorable Brian H. Williams,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               55D02-1611-F6-1782



      Mathias, Judge.

[1]   Following a jury trial in Morgan Superior Court, Nansee J. Crawford

      (“Crawford”) was convicted of Level 6 felony strangulation and two counts of


      Court of Appeals of Indiana | Memorandum Decision 55A05-1708-CR-1880 | February 28, 2018   Page 1 of 12
      Level 6 felony intimidation. Crawford appeals and presents two issues, which

      we consolidate and restate as whether the State presented evidence sufficient to

      support Crawford’s convictions. We hold that there was sufficient evidence to

      support all of Crawford’s convictions. However, we conclude sua sponte that

      Crawford’s convictions for two counts of intimidation based on the same threat

      constitute impermissible double jeopardy. Accordingly, we affirm in part,

      reverse in part, and remand.


                                 Facts and Procedural History
[2]   At some point during the summer of 2016, Dora Summers (“Summers”) was

      looking for someone to help care for her elderly mother. Summers posted a

      message to her Facebook page that she was looking for a caregiver and received

      a response from Crawford, with whom Summers was already acquainted.

      Thereafter, Crawford began to work part-time, three days a week, as a caregiver

      for Summers’s mother.


[3]   Toward the end of September, Summers’s mother was hospitalized. In mid-

      October, Summers expected her mother to be released from the hospital and

      attempted to contact Crawford to see if she could resume her job as a caregiver.

      Crawford was not terribly responsive to Summers’s offers, claiming to be sick or

      asleep, and she finally stopped responding at all. Summers then contacted the

      agency through which she had hired Crawford and informed them that

      Crawford had not responded. This agency then provided Summers with

      another caregiver who could watch her mother four days a week.


      Court of Appeals of Indiana | Memorandum Decision 55A05-1708-CR-1880 | February 28, 2018   Page 2 of 12
[4]   Relations between Crawford and Summers soured after this. Although they did

      not see each other, they exchanged online messages in which Crawford

      expressed anger over being removed as Summers’s mother’s caregiver and

      threatened Summers. Summers eventually blocked Crawford from contacting

      her on Facebook.


[5]   On November 20, 2016, Summers moved her mother to a nursing home. She

      became upset as she packed her mother’s belongings and decided to run to the

      store to pick up cleaning supplies. On her way to the store, however, Summers

      decided to stop by the local Veterans of Foreign Wars post (“VFW”) to have a

      drink at the bar and relax. After receiving her second glass of wine, Summers

      noticed Crawford and her husband enter the club and sit at the other end of the

      bar. Shortly thereafter, Summers went to the restroom.


[6]   When Summers went to the restroom, she did not notice anyone else inside and

      entered a stall. Inside the stall, she heard the restroom door close and looked

      through the crack in the stall door and saw that Crawford had entered the

      restroom. Summers asked Crawford if she wanted to talk, and, when she exited

      the stall, the two spoke. Crawford told Summers that she thought that Summers

      had gotten her removed as her mother’s caregiver. Summers responded that this

      had been the agency’s decision, not hers. Crawford was angry, and Summers

      became upset and started to weep and walk away. At this point, Crawford said,

      “don’t cry on me, bitch[.] I’ll f**king kill you.” Jury Trial Tr. p. 102. Crawford

      pushed Summers up against the restroom wall, blocking her from leaving.

      Crawford also put at least one of her hands on Summers’s neck, and squeezed,

      Court of Appeals of Indiana | Memorandum Decision 55A05-1708-CR-1880 | February 28, 2018   Page 3 of 12
      which “strangled” and “choked” her. Id. at 102, 128. At this point, Julie

      Lanham (“Lanham”), a bartender at the VFW, came in the restroom and

      separated the two.


[7]   Summers left the restroom and sat back down at the bar. Lanham and

      Crawford then left the restroom, and as they walked by Summers, Crawford

      again threatened her.1 Summers texted her son and informed him of what had

      happened, and her son told her to call the police to report the attack. Summers

      then called the police. Summers also noticed that Crawford’s attack had left her

      with a scratch running down the left side of her face towards her neck, which

      was bleeding. Her neck was also red from where Crawford had grabbed her.


[8]   Mooresville Police Department Officer Lindsay Hayden (“Officer Hayden”)

      responded to a report of a possible battery at the VFW and arrived on the scene,

      where she spoke with Summers. Summers was “[v]ery distraught [and] crying.”

      Id. at 147. Officer Hayden also observed the bleeding scratch on Summers’s

      face and neck and the redness on her neck. Officer Hayden also spoke with

      Crawford, who was agitated and was “[n]ot happy to be speaking with [police]

      officers.” Id. at 151. Crawford claimed that she and Summers had engaged in a

      “civil conversation” in the restroom. Id. at 150. She also claimed, unprompted,

      that Summers had scratched her own face. Since Officer Hayden had not




      1
       Summers testified, “And when she passes me, she threatens me again and says, if I catch . . when I catch
      you outside of this place, your ass is .. I don’t know exactly how she said that, but she threatened me again.”
      Jury Trial Tr. p. 103.

      Court of Appeals of Indiana | Memorandum Decision 55A05-1708-CR-1880 | February 28, 2018           Page 4 of 12
       mentioned any injuries, she thought this statement odd. Crawford denied

       having choked Summers.


[9]    Mooresville Police Officer David Schultz (“Officer Schultz”) also responded to

       the scene and spoke with the bartender, Lanham. According to Officer Schultz,

       Lanham told him that she had seen Summers and Crawford go into the

       restroom and knew they had “issues with each other.” Id. at 182. Lanham then

       heard a commotion and went into the restroom where she saw Crawford with

       her hands around Summers’s neck and separated the two.2 Officer Hayden

       ultimately arrested Crawford and took her to jail.


[10]   As a result of this incident, the State charged Crawford on November 21, 2016

       as follows: Count 1, Level 6 felony strangulation; Count 2, Level 6 felony

       intimidation; Count 3, Level 6 felony intimidation; Count 4, Class A

       misdemeanor battery; and Count 5, Class B misdemeanor disorderly conduct.

       A jury trial was held on May 2, 2017, at the conclusion of which the jury found

       Crawford guilty as charged. At a sentencing hearing held on July 20, 2017, the

       trial court determined that the two misdemeanor counts “merged” into the

       strangulation conviction and entered judgment of conviction only on the three

       felony counts. The court then imposed concurrent advisory sentences of one

       and one-half years on each count, with all but six days suspended to probation.

       The trial court also noted that, if Crawford successfully completed probation, it



       2
        Lanham testified as a witness for the defense and denied having told Officer Schultz that she witnessed
       Crawford attacking Summers. She instead testified that she only observed Crawford yelling at Summers.

       Court of Appeals of Indiana | Memorandum Decision 55A05-1708-CR-1880 | February 28, 2018        Page 5 of 12
       would “consider and likely grant an alternative misdemeanor conviction in

       these cases.” Sentencing Tr. p. 19. Crawford now appeals.


                                      Discussion and Decision
[11]   Crawford claims on appeal that the State failed to present evidence sufficient to

       support all three of her felony convictions. When reviewing a claim that the

       evidence is insufficient to support a conviction, we neither reweigh the evidence

       nor judge the credibility of the witnesses. Harrison v. State, 32 N.E.3d 240, 247

       (Ind. Ct. App. 2015), trans. denied. We instead respect the exclusive province of

       the jury to weigh any conflicting evidence. Id. We consider only the probative

       evidence supporting the verdict and any reasonable inferences which may be

       drawn from this evidence, and we will affirm if the probative evidence and

       reasonable inferences drawn therefrom could have allowed a reasonable trier of

       fact to find the defendant guilty beyond a reasonable doubt. Id.


       A. Strangulation

[12]   The statute defining the crime of strangulation provides in relevant part:


               A person who, in a rude, angry, or insolent manner, knowingly
               or intentionally:
                   (1) applies pressure to the throat or neck of another person;
                                                         ***
               in a manner that impedes the normal breathing or the blood
               circulation of the other person commits strangulation, a Level 6
               felony.




       Court of Appeals of Indiana | Memorandum Decision 55A05-1708-CR-1880 | February 28, 2018   Page 6 of 12
       Ind. Code § 35-42-2-9(b) (2014).3


[13]   Thus, to convict Crawford of Level 6 felony strangulation, the State had to

       prove that she knowingly or intentionally applied pressure to the throat or neck

       of Summers in a rude, angry, or insolent manner, and in such a manner that

       impeded Summers’s normal breathing or blood circulation. Crawford claims

       that there is no evidence that Summers’s normal breathing or blood circulation

       was impeded by her grabbing Summers’s throat. We disagree.


[14]   The evidence favorable to the jury’s verdict reveals that Crawford was angry

       with Summers, threatened to kill her, pushed her up against a wall, grabbed her

       by the throat, and squeezed her neck. Crawford claims that there was no

       evidence that this interfered with Summers’s breathing. But Summers described

       what Crawford did to her as being “strangled” and “choked.” Jury Trial Tr. pp.

       102, 128. Moreover, Crawford squeezed Summers’s neck with enough force

       that it was still red when the police arrived. From this, the jury could

       reasonably infer that Crawford squeezed Summers’s throat with enough force

       to impede her normal breathing. See Perry v. State, 956 N.E.2d 41, 61 (Ind. Ct.

       App. 2011) (concluding that there was sufficient evidence to support

       defendant’s conviction for strangulation, and therefore there were no double

       jeopardy issue concerns on retrial, where victim had abrasions on her neck and




       3
        We cite to the version of the statute in effect at the time of the commission of the offense. The statute has
       subsequently been amended in a manner that does not affect the current case, though the above-cited
       provision is now delineated as subsection (c). See P.L. 252-2017 § 11 (effective July 1, 2017).

       Court of Appeals of Indiana | Memorandum Decision 55A05-1708-CR-1880 | February 28, 2018            Page 7 of 12
       stated that she had been “strangled” and that defendant grabbed her around the

       neck).4


[15]   Crawford complains that Officer Schultz’s testimony regarding what Lanham

       told him she saw was hearsay. However, Crawford made no hearsay objection

       to this testimony at trial and does not claim evidentiary error on appeal.5 When

       reviewing the sufficiency of the evidence, “‘[o]therwise inadmissible hearsay

       evidence may be considered for substantive purposes and is sufficient to

       establish a material fact at issue when the hearsay evidence is admitted without

       a timely objection at trial.’” Marcum v. State, 725 N.E.2d 852, 863 (Ind. 2000)

       (quoting Humphrey v. State, 680 N.E.2d 836, 840 (Ind. 1997)).


[16]   Crawford also notes that Officer Schultz did not record his interview of

       Lanham. Although this might be the better practice, and we encourage such

       recordings as they eliminate any question regarding what a witness said, there is

       no requirement that such interviews be recorded. The failure to record

       Lanham’s statement might have been relevant to the weight to be given to


       4
         The State notes that Summers apparently demonstrated to the jury her reaction to what Crawford did to
       her, testifying, “I remember she did it, and I kind of went . . and I was thinking what was I going to do.” Jury
       Trial Tr. p. 102. In response to Crawford’s motion for a directed verdict, the prosecuting attorney described
       Summers’s description as “a type of gasping.” Id. at 197. On appeal, Crawford claims that there is no support
       for the prosecutor’s characterization in the transcript. We do not have access to any audio recording of the
       testimony and are unable to judge the State’s characterization of Summers’s testimony. Still one might
       reasonably infer that when Summers testified “I kind of went . . .” she demonstrated her reaction to being
       grabbed by the throat. However, even if we agreed with Crawford that the prosecutor’s characterization of
       Summers’s testimony was unsupported, the remaining evidence, and the reasonable inferences to be drawn
       therefrom, are sufficient to support Crawford’s conviction for strangulation.
       5
         Crawford’s trial counsel did note the inconsistency between Officer Schultz’s testimony regarding what
       Lanham told him and Lanham’s actual testimony as a defense witness. But the jury was not required to
       credit Lanham’s trial testimony over Officer Schultz’s testimony regarding what Lanham told him on the
       night of the incident.

       Court of Appeals of Indiana | Memorandum Decision 55A05-1708-CR-1880 | February 28, 2018           Page 8 of 12
       Officer Schultz’s testimony, but we may not reweigh evidence on appeal. See

       Harrison, 32 N.E.3d at 247.


       B. Intimidation

[17]   Crawford also claims that the State failed to produce evidence sufficient to

       support either of her convictions for Level 6 felony intimidation. The statute

       defining the crime of intimidation provides in relevant part:

               (a) A person who communicates a threat to another person, with
               the intent:
                   (1) that the other person engage in conduct against the other
                   person’s will; [or]
                   (2) that the other person be placed in fear of retaliation for a
                   prior lawful act;
                                                       ***
               commits intimidation, a Class A misdemeanor.


       Ind. Code § 35-45-2-1. However, the offense is a Level 6 felony if the threat is to

       commit a forcible felony. Id. at § 1(b)(1)(A).


[18]   With regard to her conviction for intimidation under Count 2, Crawford claims

       that the State failed to prove that she threatened Summers with the intent that

       Summers engage in conduct against her will. Again, we disagree. The State

       presented evidence that Crawford yelled and screamed at Summers because

       Crawford thought Summers had caused her termination as caregiver for

       Summers’s mother. Summers testified that when she began to cry and

       attempted to walk away from Crawford, Crawford stated, “don’t cry on me,


       Court of Appeals of Indiana | Memorandum Decision 55A05-1708-CR-1880 | February 28, 2018   Page 9 of 12
       bitch[.] I’ll f**king kill you.” Jury Trial Tr. p. 102. She then pushed Summers

       up against the restroom wall, blocking her from leaving. From this, the jury

       could reasonably infer that Crawford threatened Summers to stop her from

       leaving the restroom. This is sufficient to prove that Crawford threatened

       Summers with the intent that Summers engage in conduct against her will, i.e.,

       remain in the restroom.


[19]   With regard to her conviction for intimidation under Count 3, Crawford claims

       that the State failed to prove that she threatened Summers with the intent that

       Summers be placed in fear of retaliation for a prior lawful act. I.C. § 35-45-2-

       1(a)(2). We, however, agree with the State that the jury could reasonably infer

       that Crawford also threatened Summers with the intent to place Summers in

       fear of retaliation for her role in having removed Crawford as the caregiver to

       Summers’s mother. Indeed, this was the root of the dispute between the two

       women.


       C. Double Jeopardy

[20]   Although we conclude that there was sufficient evidence to support Crawford’s

       convictions, we also conclude sua sponte that Crawford’s two convictions for

       intimidation are based upon the one act of threatening Summers and therefore

       constitute common law double jeopardy.


               In addition to the instances covered by Richardson [v. State, 717
               N.E.2d 32 (Ind. 1999)], “we have long adhered to a series of rules
               of statutory construction and common law that are often
               described as double jeopardy, but are not governed by the
               constitutional test set forth in Richardson.” One of these
       Court of Appeals of Indiana | Memorandum Decision 55A05-1708-CR-1880 | February 28, 2018   Page 10 of 12
               categories prohibits “conviction and punishment for a crime
               which consists of the very same act as another crime for which
               the defendant has been convicted and punished.”


       Phillips v. State, 25 N.E.3d 1284, 1291 (Ind. Ct. App. 2015) (internal quotations

       omitted) (citing Guyton v. State, 771 N.E.2d 1141, 1143)).


[21]   Here, the State did not allege that Crawford committed two separate acts of

       intimidation. It simply alleged that “Nansee Crawford did communicate a

       threat to commit a forcible felony to Dora Summers, with the intent that said

       Dora Summers engage in conduct against his/her will,” and that “Nansee

       Crawford did communicate a threat to commit a forcible felony to Dora

       Summers, with the intent that said Dora Summers be placed in fear of

       retaliation for a prior lawful act.” Appellant’s App. p. 4. The trial court’s final

       instructions similarly did not distinguish between the allegations of

       intimidation. Id. at 57–58. And the prosecuting attorney’s closing argument

       clearly referred to the one threat Crawford made to Summers in the restroom as

       the basis for both convictions. Jury Trial Tr. pp. 221–22.


[22]   Under these facts and circumstances, we can only conclude that Crawford was

       convicted of two counts of intimidation based on one act—threatening to kill

       Summers in the restroom. Although there may have been sufficient evidence to

       support both of these convictions, Crawford cannot properly be convicted of

       both counts because they are based on the same act. See Chappell v. State, 966

       N.E.2d 124, 132 (Ind. Ct. App. 2012) (concluding sua sponte that defendant’s

       convictions for Class A felony burglary and Class B felony burglary constituted

       Court of Appeals of Indiana | Memorandum Decision 55A05-1708-CR-1880 | February 28, 2018   Page 11 of 12
       impermissible double jeopardy where both convictions were based on the same

       act of breaking and entering into one house), trans. denied. The remedy for a

       double jeopardy conviction is to vacate the problem conviction. See Orta v. State,

       940 N.E.2d 370, 377 (Ind. Ct. App. 2011) (noting that the remedy for a double

       jeopardy violation is to vacate one of the offenses if reducing either conviction

       to a less serious form of the same offense will not suffice), trans. denied. Here,

       both of the convictions at issue were for Level 6 felony intimidation. We choose

       to reverse Crawford’s conviction on Count 3.


                                                 Conclusion
[23]   The State presented evidence sufficient to support Crawford’s convictions for

       strangulation and intimidation. However, because both convictions for

       intimidation were based on the same threat, they constitute double jeopardy.

       We therefore reverse Crawford’s conviction for intimidation under Count 3 and

       remand with instructions that the trial court vacate the judgment and sentence

       thereon.


[24]   Affirmed in part, reversed in part, and remanded.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 55A05-1708-CR-1880 | February 28, 2018   Page 12 of 12
