MEMORANDUM DECISION                                                            FILED
                                                                           Jul 10 2018, 8:15 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                                   CLERK
                                                                           Indiana Supreme Court
precedent or cited before any court except for the                            Court of Appeals
                                                                                and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                     Curtis T. Hill, Jr.
Marion County Public Defender Agency                   Attorney General of Indiana
Indianapolis, Indiana
                                                       J.T. Whitehead
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jason Humphrey,                                            July 10, 2018

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-335

        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Christina R.
                                                           Klineman, Judge
Appellee-Plaintiff.
                                                           The Honorable Marshelle Broadwell,
                                                           Magistrate
                                                           Trial Court Cause No.
                                                           49G17-1710-F6-41998




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-335 | July 10, 2018                       Page 1 of 4
                                           Case Summary
[1]   In October of 2017, Jason Humphrey argued with his domestic partner, put his

      hands around her neck, and pushed her, causing her head to strike a car door.

      The State charged Humphrey with, and he was convicted of, Level 6 felony

      domestic battery and Class A misdemeanor domestic battery. Because the

      parties agree that Humphrey’s misdemeanor conviction must be vacated, we

      affirm in part, reverse in part, and remand with instructions.



                            Facts and Procedural History
[2]   A.J. and Humphrey have been romantically involved for many years and have

      one son together. On October 28, 2017, Humphrey was driving with A.J. as a

      passenger in the front seat and their son was in back. As it happened, A.J. was

      convinced that Humphrey was cheating on her, and, when they arrived at their

      Marion County home, A.J. told Humphrey that if he could cheat then she

      could cheat as well. Humphrey ran around to the passenger side of the vehicle,

      put his hands around A.J.’s neck, and pushed her head back into the car seat,

      causing A.J.’s head to bang against the inside of the car door. Humphrey’s and

      A.J.’s son was still in the car.


[3]   On October 30, 2017, the State charged Humphrey Level 6 felony domestic

      battery (committed in the presence of a child below the age of sixteen) and

      Class A misdemeanor domestic battery. On January 30, 2018, the trial court

      found Humphrey guilty as charged and sentenced him to 180 days of


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-335 | July 10, 2018   Page 2 of 4
      incarceration with 166 suspended for felony conviction and fourteen days for

      the misdemeanor, to be served concurrently.



                                               Discussion
[1]   Humphrey argues that his convictions violate Indiana’s prohibitions against

      double jeopardy. Whether multiple convictions violate Indiana’s constitutional

      or common-law prohibitions against double jeopardy is a question of law that is

      reviewed de novo. Goldsberry v. State, 821 N.E.2d 447, 458 (Ind. Ct. App. 2005)

      (citing Spears v. State, 735 N.E.2d 1161, 1166 (Ind. 2000)). Two or more

      offenses are the “same offense” in violation of Article 1, Section 14 of the

      Indiana Constitution where, with respect to either the statutory elements of the

      challenged offense or the actual evidence used to convict, the essential elements

      of one offense also establish the essential elements of another offense.

      Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).


[2]   Humphrey contends, and the State concedes, that the same actual evidence

      established the facts needed to prove Counts I and II both domestic battery

      offenses. While we agree with the parties that one of Humphrey’s convictions

      must be vacated, it is on a slightly different basis. As Justice Sullivan

      recognized in his Richardson concurrence, Indiana common law prohibits

      “‘[c]onviction and punishment for a crime which is a lesser-included offense of

      another crime for which the defendant has been convicted and punished.’”

      Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quoting Richardson, 717

      N.E.2d at 56 (Sullivan, J., concurring)). Humphrey’s conviction for Level 6

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-335 | July 10, 2018   Page 3 of 4
      felony domestic battery conviction required proof of all of the elements of Class

      A misdemeanor domestic battery plus proof that he was over eighteen years old

      and the offense was committed in the presence of a child below the age of

      sixteen, knowing that the child was present and might be able to see and hear

      the offense. See Ind. Code §§ 35-42-2-1.3(a); -1.3(b)(2). In other words, as

      charged and proved in this case, the Class A misdemeanor domestic battery is a

      lesser-included offense of the Level 6 felony. We therefore remand with

      instructions to vacate Humphrey’s conviction and sentence for Class A

      misdemeanor domestic battery. See Richardson, 717 N.E.2d at 55 (“Because

      both convictions therefore cannot stand, we vacate the conviction with the less

      severe penal consequences and leave standing the robbery conviction.”).


[3]   We reverse the judgement of the trial court in part and remand with instructions

      to vacate Humphrey’s Class A misdemeanor domestic battery conviction.


      Baker, J., and Kirsch, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-335 | July 10, 2018   Page 4 of 4
