MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                      Mar 09 2016, 9:14 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
Patricia Caress McMath                                   Gregory F. Zoeller
Marion County Public Defender Office                     Attorney General
Indianapolis, Indiana

                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Johnson,                                         March 9, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1508-CR-1090
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Christina R.
Appellee-Plaintiff.                                      Klineman, Judge
                                                         The Honorable Marshelle
                                                         Broadwell, Commissioner
                                                         Trial Court Cause No.
                                                         49G17-1410-F6-47845



Vaidik, Chief Judge.



Court of Appeals of Indiana | Memorandum Decision 49A05-1508-CR-1090 | March 9, 2016         Page 1 of 9
                                           Case Summary
[1]   Michael Johnson contends that his convictions for strangulation, domestic

      battery, and battery in the presence of a child, each a Level 6 felony, were all

      based on a single act of choking and that two of them must therefore be vacated

      pursuant to the Indiana Constitution’s ban on double jeopardy. We agree and

      remand this matter to the trial court with instructions to vacate the convictions

      and sentences for strangulation and battery in the presence of a child, leaving

      intact only the conviction and sentence for domestic battery.



                             Facts and Procedural History
[2]   On the morning of October 14, 2014, Johnson and his girlfriend, S.W., were

      arguing in a bedroom of the house they shared, while S.W.’s four children were

      in an adjacent bedroom. Tr. p. 118-26. S.W. was seated at the end of an air

      mattress, and Johnson jumped on her and started choking her, which cut off her

      breathing and caused her pain. Id. at 126-31. S.W. was eventually able to get

      out from under Johnson and call 911. Id. at 132-38.


[3]   The State charged Johnson with strangulation, domestic battery, and battery in

      the presence of a child, all as Level 6 felonies.1 The strangulation charge stated:




      1
       The State also charged Johnson with battery of one of S.W.’s children and intimidation. The State
      eventually dismissed the intimidation charge, but Johnson was convicted on the battery charge. Johnson
      does not challenge that battery conviction on appeal, so we do not address it.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1508-CR-1090 | March 9, 2016           Page 2 of 9
        On or about October 14, 2014, the following named defendant,
        Michael Johnson, in a rude, insolent or angry manner, did
        knowingly apply pressure to the throat or neck, or obstruct the
        nose or mouth of [S.W.], another person, in a manner that
        impeded the normal breathing or the blood circulation of the
        other person[.]


Appellant’s App. p. 25. The domestic-battery charge stated:

        On or about October 14, 2014, Michael Johnson did knowingly
        in a rude, insolent or angry manner touch [S.W.], who…was
        living with Michael Johnson as if a spouse of Michael
        Johnson…, and further said touching resulting in bodily injury to
        the other person, specifically pain, furthermore Michael Johnson
        committed said offense in the physical presence of K.W., 13,
        and/or P.W., 12, and/or S.T., 11, and/or H.T., 9, a child less
        than sixteen (16) years of age, knowing that said child was
        present and might be able to see or hear the offense[.]


Id. The battery in the presence of a child charge stated:


        On or about October 14, 2014, Michael Johnson, a person at
        least 18 years of age, did knowingly or intentionally touch
        [S.W.], a family or household member (as defined in Indiana
        Code Section 35-31.5-2-128), in a rude, insolent, or angry
        manner, to-wit: pushing and/or poking and/or choking and said
        offense was committed in the physical presence of K.W., 13,
        and/or P.W., 12, and/or S.T., 11, and/or H.T., 9, a child less
        than sixteen (16) years of age, knowing that said child was
        present and might be able to see or hear the offense[.]


Id.




Court of Appeals of Indiana | Memorandum Decision 49A05-1508-CR-1090 | March 9, 2016   Page 3 of 9
[4]   The case went to a jury trial. After the jury had been selected, the trial court

      gave preliminary instructions that recited verbatim the charges against Johnson.

      Tr. p. 76-78. Then the prosecutor made an opening statement in which he

      described Johnson’s attack on S.W. as follows: “We’re here because on

      October 14, 2014, he pushed [S.W.] back on the bed they shared, straddled her,

      put his hands around her neck and squeezed.” Id. at 100. The State called

      S.W. as its first witness, and she testified that Johnson “jumped on top” of her,

      “straddled” her, and “started choking” her. Id. at 130. She also testified that

      Johnson “hurt” her by “squeezing” her neck. Id. at 131. Later, in the

      prosecutor’s very brief closing argument, he did not separately address the three

      charges. He described Johnson’s attack on S.W. as follows: “[H]e strangled

      her.” Id. at 371.


[5]   The jury found Johnson guilty of all three charges, and the trial court entered

      convictions on all three counts and imposed identical 365-day sentences for

      each conviction, to run concurrently. Id. at p. 391, 449-451; Appellant’s App.

      p. 14.



                                Discussion and Decision
[6]   Johnson argues that his separate convictions for strangulation, domestic

      battery, and battery in the presence of a child violate Article 1, Section 14 of the

      Indiana Constitution, which provides, in part, that “[n]o person shall be put in

      jeopardy twice for the same offense.” Johnson, who represented himself at trial

      and at sentencing, does not assert that he raised this claim with the trial court.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1508-CR-1090 | March 9, 2016   Page 4 of 9
      However, because double-jeopardy violations constitute fundamental error,

      they may be raised for the first time on appeal. Garcia v. State, 686 N.E.2d 883,

      884 (Ind. Ct. App. 1997).

[7]   For purposes of Article 1, Section 14, two or more offenses constitute the “same

      offense” if, with respect to either the statutory elements of the challenged crimes

      or the actual evidence used to obtain convictions, the essential elements of one

      challenged offense also establish the essential elements of another challenged

      offense. Frazier v. State, 988 N.E.2d 1257, 1262 (Ind. Ct. App. 2013). Johnson

      contends that his convictions fail the actual-evidence test.

[8]   “Under the actual-evidence test, we examine the actual evidence presented at

      trial in order to determine whether each challenged offense was established by

      separate and distinct facts.” Id. “To find a double-jeopardy violation under this

      test, we must conclude that there is ‘a reasonable possibility that the evidentiary

      facts used by the fact-finder to establish the essential elements of one offense

      may also have been used to establish the essential elements of a second

      challenged offense.’” Id. (quoting Richardson v. State, 717 N.E.2d 32, 53 (Ind.

      1999)). “In determining the facts used by the fact-finder, it is appropriate to

      consider the charging information, jury instructions, arguments of counsel and

      other factors that may have guided the jury’s determination.” Hines v. State, 30

      N.E.3d 1216, 1222 (Ind. 2015) (formatting altered).

[9]   Johnson argues that the convictions for strangulation, domestic battery, and

      battery in the presence of a child were all based on the same exact evidence—


      Court of Appeals of Indiana | Memorandum Decision 49A05-1508-CR-1090 | March 9, 2016   Page 5 of 9
       the choking—and that two of them must be vacated. In response, the State

       does not dispute that multiple convictions based on the choking would fail the

       actual-evidence test. Instead, it asserts that, while the strangulation conviction

       was based on the choking, the domestic battery and battery in the presence of a

       child convictions were based on a separate “touching” by Johnson, specifically,

       “pushing” S.W. back onto the mattress as he went to choke her. Appellee’s Br.

       p. 7, 9. The State purports to concede that the latter two convictions violate the

       actual-evidence test, see Appellee’s Br. p. 9 n.9, but otherwise would have us

       affirm the domestic-battery conviction (based on the alleged “pushing”) and the

       strangulation conviction (based on the choking).

[10]   The first problem with the State’s position is that the domestic-battery

       conviction could not have been based on the alleged “pushing.” The domestic-

       battery statute requires that a touching result in bodily injury, see Ind. Code §

       35-42-2-1.3(a), and the State does not assert that anything other than the

       choking caused injury (pain) to S.W. See Tr. p. 131. Therefore, the domestic-

       battery conviction had to have been based on the same choking as the

       strangulation conviction. As noted above, the State does not dispute that this

       constitutes a double-jeopardy violation that requires the vacating of one of the

       convictions. The State asks that we preserve the domestic-battery conviction if

       we find any double-jeopardy problems, and Johnson does not argue otherwise

       in his reply brief. Therefore, we will remand this matter to the trial court to

       vacate the conviction and sentence for strangulation.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1508-CR-1090 | March 9, 2016   Page 6 of 9
[11]   But first we must return to the State’s argument that the battery in the presence

       of a child conviction was based on the alleged “pushing” and should be

       affirmed notwithstanding any conviction based on the choking. We disagree

       with the State and conclude that there is a very reasonable possibility that all of

       the convictions were based on the choking, so that only one conviction can

       stand. See Frazier, 988 N.E.2d at 1262.


[12]   Looking first at the charging information, the State based the battery in the

       presence of a child count on Johnson’s alleged “pushing and/or poking and/or

       choking” of S.W. Appellant’s App. p. 25 (emphasis added). This charge’s

       specific reference to “choking” obviously left open the possibility that the jury

       could find Johnson guilty of battery in the presence of a child based on the

       choking. The trial court’s instructions to the jury did nothing to eliminate this

       possibility; the instructions simply incorporated the charging information

       verbatim. Tr. p. 77-78. The only time that the prosecutor arguably

       distinguished the choking and the alleged “pushing” was during his opening

       statement, when he said that Johnson “pushed [S.W.] back on the bed they

       shared, straddled her, put his hands around her neck and squeezed.” Id. at 100.

       However, the State does not contend that it actually presented any evidence to

       the jury that Johnson “pushed” S.W. separately from choking her. It cites two

       pages of the trial transcript that include S.W.’s description of the attack, see id.

       at 129-130, but nowhere in that description did S.W. use the word “push” or

       any variations of the word “push.” To the contrary, the transcript pages cited

       by the State establish that any contact before or during the choking was


       Court of Appeals of Indiana | Memorandum Decision 49A05-1508-CR-1090 | March 9, 2016   Page 7 of 9
       incidental to and part of the act of choking. Finally, the prosecutor emphasized

       the centrality of the choking during his closing argument, when he used just

       three words to describe Johnson’s attack on S.W.: “[H]e strangled her.” Id. at

       371.

[13]   Having reviewed the record as a whole, we are convinced that there is a

       reasonable possibility that the jury found Johnson guilty of both domestic

       battery and battery in the presence of a child based on the choking. As such,

       one of the convictions must be vacated. The State again asks us to preserve the

       domestic-battery conviction, and Johnson again lodges no objection to that

       result. Therefore, in remanding this matter, we also instruct the trial court to

       vacate the conviction and sentence for battery in the presence of a child.



                                                 Conclusion
[14]   We affirm Johnson’s conviction for domestic battery but remand this matter to

       the trial court with instructions to vacate his convictions and sentences for

       strangulation and battery in the presence of a child.2




       2
         After he was sentenced, Johnson accepted the trial court’s offer to appoint an attorney to represent him on
       appeal. Tr. p. 451. However, Johnson himself has sent the Clerk of this Court several documents in which
       he complains about the performance of the attorney and asks for a different attorney or permission to proceed
       without counsel: a “Motion for Extension of Time to Prepare Brief” postmarked December 23, 2015, a
       “Motion for Appellant to Proceed Pro-Se” postmarked January 19, 2016, a “Motion for Appellant’s Counsel
       to Send a Copy of the Records of Proceedings & Transcripts” postmarked January 19, 2016, a “Petition by
       Rule 66. Relief Available on Appeal” postmarked February 3, 2016, and a “Motion by Second Rendering
       Requesting to Remove Appellant Counsel and Proceed as Pro-Se or Appoint a New Appellant Counsel”
       postmarked February 16, 2016. For a variety of reasons, we decline to grant Johnson any of the relief he
       seeks. First, because the trial court appointed the attorney, Johnson should have directed these requests to
       the trial court. Second, he waited almost five months after his attorney was appointed—in fact, until after

       Court of Appeals of Indiana | Memorandum Decision 49A05-1508-CR-1090 | March 9, 2016             Page 8 of 9
Bailey, J., and Crone, J., concur.




she filed her opening brief—to ask to have her removed. Third, Johnson does not have a constitutional right
to represent himself on appeal. See, e.g., Stroud v. State, 809 N.E.2d 274, 281 (Ind. 2004). Fourth, if Johnson
believes that his attorney has performed deficiently and that he has been prejudiced as a result, he has the
option of filing a petition for post-conviction relief. Fifth, and most importantly, Johnson has not presented a
coherent argument that would justify removal of his current attorney. Therefore, by a separate order issued
today, we (1) direct the Clerk of this Court to mark the motions and the petition as filed but (2) deny all of the
relief requested.

Court of Appeals of Indiana | Memorandum Decision 49A05-1508-CR-1090 | March 9, 2016                  Page 9 of 9
