MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               Dec 10 2015, 9:17 am

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Daniel J. Vanderpool                                    Gregory F. Zoeller
Vanderpool Law Firm, PC                                 Attorney General of Indiana
Warsaw, Indiana
                                                        Lyubov Gore
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Demario M. Loston,                                      December 10, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        85A04-1504-CR-153
        v.
                                                        Appeal from the Wabash Circuit
                                                        Court
State of Indiana,
                                                        The Honorable Robert R.
Appellee-Plaintiff.                                     McCallen, III, Judge
                                                        Trial Court Cause No.
                                                        85C01-1407-F5-641



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 85A04-1504-CR-153 | December 10, 2015    Page 1 of 10
[1]   Demario M. Loston was convicted after a jury trial of battery1 as a Class A

      misdemeanor and criminal trespass2 as a Class A misdemeanor. He was given

      a one-year sentence for each offense with the sentences ordered to run

      consecutively for an aggregate sentence of two years executed. Loston appeals

      and raises the following restated issues for our review:


                 I. Whether the continuous crime doctrine applies to Loston’s
                 convictions for Class A misdemeanor battery and Class A
                 misdemeanor criminal trespass; and


                 II. Whether Loston’s consecutive sentences are inappropriate in
                 light of the nature of the offense and the character of the
                 offender.


[2]   We affirm.


                                       Facts and Procedural History
[3]   On July 19, 2014, Leah Neupert was spending time with friends at her

      residence in the Treeway Inn located in Manchester, Indiana and spoke with

      Loston, who was an acquaintance of hers, on the phone. Neupert and Loston

      made plans for Neupert to pick Loston up from a friend’s home in Warsaw.

      Loston, believing that Neupert wanted to have sex with him, gave her




      1
          See Ind. Code § 35-42-2-1.
      2
          See Ind. Code § 35-43-2-2.


      Court of Appeals of Indiana | Memorandum Decision 85A04-1504-CR-153 | December 10, 2015   Page 2 of 10
      directions to the house where he was staying. Neupert and her friend,

      Savannah Baermann, later drove Baermann’s vehicle to pick up Loston.


[4]   When Loston entered the vehicle, he brought a bottle of vodka, juice, and his

      cell phone with him. Loston’s cell phone battery was dead, so he plugged the

      phone into Baermann’s car charger and placed it on the floorboard between the

      driver’s seat and the passenger seat. Baermann drove to three different hotels in

      Warsaw to check room prices because Loston wanted to have sex with

      Neupert. Loston did not have enough money for a hotel room and became

      angry when the plan to get a hotel room was not successful. The three then

      decided to go to the Aloha Bar in Warsaw.


[5]   After sitting and drinking in the bar’s parking lot, Loston met up with some

      friends and went inside, leaving his cell phone and vodka in Baermann’s

      vehicle. Neupert and Baermann went inside the bar also, but did not hang out

      with Loston. Neupert and Baermann were at the bar, drinking and having a

      good time, from 9:00 p.m. until approximately 2:30 a.m. Prior to leaving,

      Baermann went up to Loston and told him they were leaving and asked for gas

      money. Loston shoved Baermann into the women’s restroom, tried to undress

      her, and told her, “just let me see your boobs.” Tr. at 285. Because Loston had

      her cornered in a stall, and she wanted him to leave her alone, Baermann

      showed him her breasts, and Loston threw ten dollars at her.


[6]   Neupert and Baermann left the bar and went back to the Treeway Inn in

      Manchester. They went to the room of Stephen Keirn, who was also living at


      Court of Appeals of Indiana | Memorandum Decision 85A04-1504-CR-153 | December 10, 2015   Page 3 of 10
      the hotel. When Neupert and Baermann reached Manchester, they realized

      that Loston had left his cell phone in the vehicle. They discussed whether to

      return to the bar, but were not able to because they did not have enough gas

      money to drive there. Neupert planned to return the cell phone to Loston the

      next time she saw him and took it and the vodka with her into Keirn’s room.

      Once inside, she placed the cell phone on a coffee table near the door.


[7]   About ten minutes after Neupert and Baermann arrived, Loston, barged into

      Keirn’s room. The door to the room had been closed, but Loston opened it and

      entered without knocking, announcing himself, waiting for permission to enter,

      or having someone open the door for him. Loston was visibly angry and

      headed straight to where Neupert was sitting. He grabbed her and said, “Bitch,

      you want to play games?” Id. at 115, 135, 137, 141. Loston did not given

      Neupert a chance to respond before he pulled her off the bed and began

      punching her in the face with his fist. Loston looked at Keirn, and when Keirn

      did not do anything to stop him, Loston again punched Neupert in the face.

      She fell to the floor, and Loston looked at Keirn again before stomping on

      Neupert’s face and knocking her unconscious.


[8]   Baermann attempted to stop Loston by grabbing his arm, and he punched her

      in the jaw. Loston then retrieved his cell phone from the table and ran from the

      room. Keirn and Baermann followed Loston outside. Baermann was worried

      that Loston might vandalize her vehicle. Loston lunged at Keirn, asking him

      “if [he] wanted some,” and Keirn told Loston that he “was not in it” and

      stepped to the side. Id. at 166. Loston then hit Keirn, and Keirn responded by

      Court of Appeals of Indiana | Memorandum Decision 85A04-1504-CR-153 | December 10, 2015   Page 4 of 10
       punching Loston. Loston began to lift a cement block off the ground and

       threatened to smash Baermann’s vehicle with it. Loston’s friends told him to

       stop because the police were coming. Loston jumped into his friends’ vehicle,

       and they quickly drove away.


[9]    Baermann went back to Keirn’s room and called police. Neupert regained

       consciousness about three minutes after being stomped in the face. Neupert

       bled heavily from her face and nose, and as a result of the battery, her eyes

       remained black and blue for almost a month and a half afterwards.


[10]   The State charged Loston with Level 5 felony battery, two counts of Class A

       misdemeanor battery, one count of Class B misdemeanor battery, and Class A

       misdemeanor criminal trespass. Loston was also alleged to be a habitual

       offender. Prior to trial, the Class B misdemeanor battery was dismissed. After

       a three-day jury trial, Loston was found guilty of one count of Class A

       misdemeanor battery and Class A misdemeanor criminal trespass and was

       acquitted of the other charges. The habitual offender allegation was also

       subsequently dismissed. Loston was sentenced to one year for each of his

       convictions and ordered to serve the sentences consecutively, for a total

       sentence of two years executed. Loston now appeals.


                                      Discussion and Decision

                                 I. Continuous Crime Doctrine
[11]   Loston argues that his convictions for battery and criminal trespass cannot both

       stand because the continuous crime doctrine applies. The continuous crime

       Court of Appeals of Indiana | Memorandum Decision 85A04-1504-CR-153 | December 10, 2015   Page 5 of 10
       doctrine is a category of Indiana’s prohibition against double jeopardy. Walker

       v. State, 932 N.E.2d 733, 736 (Ind. Ct. App. 2010). He contends that the

       continuous crime doctrine applies when “actions which are sufficient in

       themselves to constitute separate criminal offenses may be so compressed in

       terms of time, place, singleness of purpose, and continuity of action as to

       constitute a single transaction.” Seal v. State, 38 N.E.3d 717, 724 (Ind. Ct.

       App.), trans. denied. Loston asserts that, because he was involved in “one

       purposeful criminal act . . . the physical retrieval of his cell phone from another

       individual,” his actions mirror the above elements to establish “one ‘continuous

       crime.’” Appellant’s Br. at 10.


[12]   Our Supreme Court recently held that the continuous crime doctrine “applies

       only where a defendant has been charged multiple times with the same

       ‘continuous’ offense.” Hines v. State, 30 N.E.3d 1216, 1220 (Ind. 2015). The

       Hines Court specified that,


               The continuous crime doctrine is a rule of statutory construction
               and common law limited to situations where a defendant has
               been charged multiple times with the same offense. The
               continuous crime doctrine does not seek to reconcile the double
               jeopardy implications of two distinct chargeable crimes; rather, it
               defines those instances where a defendant’s conduct amounts
               only to a single chargeable crime. The Legislature, not this Court,
               defines when a criminal offense is “continuous,” e.g. not
               terminated by a single act or fact but subsisting for a definite
               period and covering successive, similar occurrences.


       Id. 1219 (citations and quotations omitted).


       Court of Appeals of Indiana | Memorandum Decision 85A04-1504-CR-153 | December 10, 2015   Page 6 of 10
[13]   Here, the continuous crime doctrine does not apply to Loston’s convictions

       because his convictions are for two distinct chargeable crimes. He was

       convicted of one count of Class A misdemeanor battery and one count of Class

       A misdemeanor criminal trespass. Loston was not convicted of multiple

       charges of the battery, nor multiple charges of criminal trespass.


[14]   Additionally, battery is not a crime for which all of the elements necessary to

       impose criminal liability are also elements found in criminal trespass, or vice

       versa. As charged, the elements of Loston’s conviction for Class A

       misdemeanor battery were that he knowingly or intentionally touched Neupert

       in a rude, insolent, or angry manner that resulted in bodily injury to Neupert.

       Ind. Code § 35-42-2-1(b)(1), (c); Appellant’s App. at 16. As charged, the elements

       of Loston’s conviction for Class A misdemeanor criminal trespass were that he

       (1) not having a contractual interest in the property, knowingly or intentionally

       entered the real property of Keirn after having been denied entry by Keirn or

       Keirn’s agent, or (2) knowingly or intentionally interfered with the possession

       or use of the property of Keirn without Keirn’s consent. Ind. Code § 35-42-2-

       2(b)(1), (4); Appellant’s App. at 17. Loston completed his criminal trespass when

       he angrily entered Keirn’s room without knocking on the closed door, waiting

       for permission to enter, or having anyone open the door for him. He completed

       his battery when he punched Neupert in the face multiple times and stomped

       her face. We, therefore, conclude that the continuous crime doctrine does not

       apply in the present case.




       Court of Appeals of Indiana | Memorandum Decision 85A04-1504-CR-153 | December 10, 2015   Page 7 of 10
                                    II. Inappropriate Sentence
[15]   Under Indiana Appellate Rule 7(B), “we may revise any sentence authorized by

       statute if we deem it to be inappropriate in light of the nature of the offense and

       the character of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct.

       App. 2014). 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). It is the defendant’s burden on appeal to persuade the reviewing court

       that the sentence imposed by the trial court is inappropriate. Chappell v. State,

       966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.


[16]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.

       2008). The principal role of appellate review is to attempt to “leaven the

       outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

       end of the day turns on “our sense of the culpability of the defendant, the

       severity of the crime, the damage done to others, and myriad other facts that

       come to light in a given case.” Id. at 1224.


[17]   Loston contends that his sentence is inappropriate in light of the nature of the

       offense and the character of the offender. Specifically, he asserts that his

       sentence is inappropriate because his sentences were ordered to be served

       consecutively. He argues that, as to the nature of the offense, because he was


       Court of Appeals of Indiana | Memorandum Decision 85A04-1504-CR-153 | December 10, 2015   Page 8 of 10
       only convicted of misdemeanor battery, and not the Level 5 felony with which

       he was charged, the “charges for which he was convicted were not, by their nature,

       extremely serious.” Appellant’s Br. at 11. As to his character, Loston claims

       that, although he has a criminal history, it is not significant because many of the

       offenses were dismissed, and the convictions are not recent in time. He further

       contends that he has a child for whom he provides care, and he has

       employment available.


[18]   Loston was convicted of one count of Class A misdemeanor battery and one

       count of Class A misdemeanor criminal trespass. “A person who commits a

       Class A misdemeanor shall be imprisoned for a fixed term of not more than one

       (1) year.” Ind. Code § 35-50-3-2. The trial court sentenced Loston to one year

       for each of his convictions and ordered the sentences to be served consecutively,

       for an aggregate sentence of two years executed.


[19]   As to the nature of the offense, after Loston was unable to secure a room to

       have sex with Neupert, he spent the night drinking with Neupert and Baermann

       and, later, other friends at a bar. When Baermann told Loston that she and

       Neupert were leaving the bar and asked for gas money, Loston forced

       Baermann into a restroom stall and attempted to undress her. Later, after

       Neupert and Baermann had left and went to Keirn’s hotel room, Loston

       showed up and barged into the room without announcing himself, knocking,

       waiting for permission to enter, or having someone open the door for him. He

       angrily entered a stranger’s residence and headed straight for Neupert, grabbed

       her, and began punching her in the face until she fell to the floor. Loston then

       Court of Appeals of Indiana | Memorandum Decision 85A04-1504-CR-153 | December 10, 2015   Page 9 of 10
       stomped on Neupert’s face, causing her to lose consciousness for several

       minutes and to have black and blue eyes for several weeks thereafter. When

       Baermann attempted to intervene, Loston punched her in the face. He then ran

       out of the room, and Baermann and Keirn followed him. After lunging at

       Keirn, Loston punched him in the face. We do not find Loston’s sentence

       inappropriate in light of the nature of the offense.


[20]   As to his character, Loston has a significant criminal history. As a juvenile,

       Loston was adjudicated delinquent at least ten times for illegal consumption,

       criminal confinement, sexual battery, battery, theft, and carrying a handgun

       without a license. As an adult, has been arrested and charged with crimes

       approximately eighteen times. He has approximately six misdemeanor

       convictions and five felony convictions for offenses that include armed robbery,

       domestic battery, battery resulting in bodily injury, criminal recklessness,

       invasion of privacy, residential entry, and resisting law enforcement. Loston

       also has numerous probation violations. We conclude that Loston’s

       consecutive sentences are not inappropriate in light of his character.


[21]   Affirmed.




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




       Court of Appeals of Indiana | Memorandum Decision 85A04-1504-CR-153 | December 10, 2015   Page 10 of 10
