Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law                    Jun 26 2014, 6:58 am
of the case.




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

STANLEY L. CAMPBELL                                  GREGORY F. ZOELLER
Fort Wayne, Indiana                                  Attorney General of Indiana

                                                     ANGELA N. SANCHEZ
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

SHAWN P. ENGLISH,                                    )
                                                     )
        Appellant-Defendant,                         )
                                                     )
               vs.                                   )      No. 02A03-1311-CR-457
                                                     )
STATE OF INDIANA,                                    )
                                                     )
        Appellee-Plaintiff.                          )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Wendy W. Davis, Judge
                             Cause No. 02D06-1306-FD-697


                                            June 26, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                     Case Summary

       Shawn English appeals his convictions for Class D felony resisting law

enforcement and Class D felony battery. We affirm and remand.

                                          Issue

       English raises one issue, which we restate as whether his convictions violate

double jeopardy principles because the same bodily injury was used to elevate both

offenses.

                                          Facts

       On June 15, 2013, a Fort Wayne police officer responded to a complaint about a

man in a parking lot yelling and screaming. The man, later identified as English, would

not calm down and continued to yell and scream. The police officer encouraged English

to walk away. Although English finally started to walk away, he stopped and began

shaking a “No Parking” sign until he broke the post. English threw the sign toward the

officer. Ex. 1.

       The officer called for backup, and Officer Darrell Caudill of the Fort Wayne

Police Department arrived at the scene. English repeatedly refused to follow the officers’

instructions and physically struggled with Officer Caudill as he tried to restrain English.

After tasing English, the officers were able to get him into the back of squad car, and

Officer Caudill transported English to a hospital. As Officer Caudill was getting English

out of the squad car, English hit Officer Caudill on the head with his own head, and

Officer Caudill “saw stars.” Tr. p. 26. English was eventually restrained and taken into

the hospital.

                                            2
        On June 20, 2013, the State charged English with Class D felony resisting law

enforcement, Class D felony battery, Class B misdemeanor criminal mischief, and Class

B misdemeanor disorderly conduct. Both Class D felony charges were based on the

bodily injury caused to Officer Caudill. At the bench trial, Officer Caudill testified that

the battery and the injury during the resisting were based on the same blow to the head.

The trial court found English guilty as charged.1 English was sentenced to three years on

each of the Class D felonies and to 180 days on each of the Class B misdemeanors. The

trial court ordered the sentences to be served concurrently. English now challenges the

Class D felony convictions.

                                               Analysis

        English argues it was improper to elevate both the resisting law enforcement

charge and the battery charge to Class D felonies based on the same bodily injury to

Officer Caudill, and the State agrees. Our supreme court has acknowledged 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 v. State,

717 N.E.2d 32 (Ind. 1999). Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002). This

includes the prohibition against elevating two convictions for the same bodily injury. See

id.   “To remedy a double jeopardy violation, a court may reduce the sentencing

classification on one of the offending convictions.” Strong v. State, 870 N.E.2d 442, 443




1
  The written judgment of conviction refers to two counts of Class D felony resisting law enforcement
instead of one count of Class D felony resisting law enforcement and one count of Class D felony battery.
                                                   3
(Ind. 2007). The State contends that to remedy the double jeopardy violation the resisting

law enforcement conviction should be reduced to a Class A misdemeanor, and we agree.2

                                            Conclusion

       Because the same bodily injury was used to elevate the resisting law enforcement

and battery charges to Class D felonies, we remand for the trial court to reduce the Class

D felony resisting law enforcement conviction to Class A misdemeanor resisting law

enforcement.

       Affirmed and remanded.

BAKER, J., and CRONE, J., concur.




2
  Because the three-year sentences were ordered to be served concurrently, it is unnecessary to remand
for resentencing.
                                                  4
