MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any
court except for the purpose of establishing                              Jul 27 2017, 10:20 am

the defense of res judicata, collateral                                        CLERK
                                                                           Indiana Supreme Court
estoppel, or the law of the case.                                             Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jane H. Conley                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Elizabeth M. Littlejohn
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Varques Lamarr Johnson,                                  July 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1702-CR-288
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Angela Dow
Appellee-Plaintiff.                                      Davis, Judge
                                                         Trial Court Cause No.
                                                         49G16-1607-F6-28853



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1702-CR-288 | July 27, 2017                Page 1 of 10
                                        Statement of the Case
[1]   Varques Johnson (“Johnson”) appeals his convictions for Level 6 felony

      domestic battery committed in the presence of a child1 and Class A

      misdemeanor domestic battery.2 Johnson argues that the victim’s testimony

      that Johnson had hit her did not amount to substantive evidence to prove that

      he had committed domestic battery against her. Johnson also contends that the

      trial court violated his right to be free from double jeopardy when it merged his

      Level 6 felony domestic battery and his Class A misdemeanor battery

      conviction without vacating his Class A misdemeanor conviction. Concluding

      that Johnson’s first argument is merely a request that we reweigh the evidence

      and witness credibility, we deny this request and affirm his convictions.

      Because the circumstances in the record reveal that the trial court entered

      judgment of conviction on both domestic battery convictions before merging

      them, we remand to the trial court to vacate Johnson’s Class A misdemeanor

      domestic battery conviction.


[2]   We affirm and remand with instructions.


                                                     Issues
                 1. Whether sufficient evidence supports Johnson’s convictions.




      1
          IND. CODE § 35-42-2-1.3.
      2
          Id.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1702-CR-288 | July 27, 2017   Page 2 of 10
              2. Whether the trial court violated Johnson’s right to be free
                 from double jeopardy.


                                                     Facts
[3]   On July 18, 2016, Johnson and Tayllor Nevarez (“Nevarez”) were in Johnson’s

      home with their seven-month-old daughter and decided to get something to eat.

      They left his house and drove separately to the restaurant, with their daughter

      in the car with Nevarez. In the restaurant parking lot, the two had an

      argument. Johnson grabbed Nevarez’s phone and wallet and began looking

      through her wallet. He then “ripp[ed] up all of [her] papers” that contained “a

      lot of stuff for [her] and [her] daughter, like [their] socials, insurance cards, stuff

      like that.” (Tr. 8). Nevarez “begg[ed] and plead[ed] for [Johnson]” to return

      her belongings, and the two continued “screaming at each other in the parking

      lot.” (Tr. 8). At some point during the argument, Johnson removed Nevarez’s

      glasses from her face and broke them.


[4]   Johnson then sat in the backseat of Nevarez’s car with their daughter and began

      going through Nevarez’s phone and text messages. Nevarez was seated in the

      driver’s seat. Johnson read a text in which Nevarez had said “something about

      him.” (Tr. 9). Johnson then “hit [her] in [the] face.” (Tr. 10). Specifically, he

      struck her eye. Nevarez then ran into the restaurant and asked to use their

      phone. The restaurant refused, and she ran back to the parking lot where she

      found that Johnson had “pulled off and . . . left [their] daughter just in the back

      seat.” (Tr. 13). Nevarez knocked on the car window of Gurline Jones

      (“Jones”) and asked to borrow her phone to call the police. Jones stayed with

      Court of Appeals of Indiana | Memorandum Decision 49A04-1702-CR-288 | July 27, 2017   Page 3 of 10
      Nevarez until the police arrived. She noticed that Nevarez “had a mark on her

      face” and that Nevarez’s glasses were on the ground by her car. (Tr. 22).

      When Officer Cory Taylor (“Officer Taylor”) of the Indianapolis Metropolitan

      Police Department arrived at the restaurant, he noticed that Nevarez “had

      slight redness and bruising . . . to the left side of her face.” (Tr. 29).


[5]   The State charged Johnson with Level 6 felony domestic battery in the presence

      of a child, Class A misdemeanor domestic battery, and Class A misdemeanor

      battery causing bodily injury. A bench trial was held where Nevarez, Jones,

      and Officer Taylor testified to the above. Johnson testified and denied that he

      had hit Nevarez. During closing arguments, Johnson’s attorney argued that

      Nevarez’s and Johnson’s testimony had resulted in “two believable stories”

      from which the trial court needed to decide. (Tr. 47). The trial court found

      “the [State’s] witnesses and the complaining witness, Ms. Nevarez’s testimony

      credible,” noting specifically that her account “was corroborated by the witness

      that [Johnson] did touch her in a rude, insolent, or angry manner and that [he]

      did so in the presence of [their] seven-month-old child.” (Tr. 48).


[6]   The trial court then stated that Johnson was “[g]uilty on Count 1, guilty on

      Count 2, not guilty on Count 3.”3 (Tr. 49). After entering its verdicts, the trial

      court proceeded directly to sentencing. At the sentencing hearing, the trial

      court imposed a 365-day sentence, with 363 days suspended to probation. After



      3
       Nevarez testified that she did not experience pain after Johnson hit her because “at the time . . . [her]
      adrenaline was rushing.” (Tr. 10).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1702-CR-288 | July 27, 2017                 Page 4 of 10
      informing Johnson that he had the right to appeal, the trial court stated that

      “Count 1 and Count 2, they will merge for the purposes of sentencing so it will

      be the same on Count 1 and Count 2.” (Tr. 58).4 Johnson now appeals.


                                                  Decision
[7]   Johnson argues that: (1) there was insufficient evidence to support his

      convictions, and (2) that a double jeopardy violation occurred when the trial

      court merged Count 1 and Count 2 for sentencing without vacating Count 2.

      We will address each of these arguments in turn.


      1. Insufficient Evidence


[8]   Johnson argues that the evidence was insufficient to support his convictions for

      domestic battery.

              When reviewing the sufficiency of the evidence to support a
              conviction, appellate courts must consider only the probative
              evidence and reasonable inferences supporting the verdict. It is
              the fact-finder’s role, not that of appellate courts, to assess
              witness credibility and weigh the evidence to determine whether
              it is sufficient to support a conviction. To preserve this structure,
              when appellate courts are confronted with conflicting evidence,
              they must consider it most favorably to the trial court’s ruling.
              Appellate courts affirm the conviction unless no reasonable fact-
              finder could find the elements of the crime proven beyond a
              reasonable doubt. It is therefore not necessary that the evidence
              overcome every reasonable hypothesis of innocence. The



      4
       The Chronological Case Summary (“CCS”) and Sentencing Order indicate that the trial court entered a
      365-day sentence with 303 days suspended to probation for Count 1.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1702-CR-288 | July 27, 2017         Page 5 of 10
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks

       and citations omitted) (emphasis in original). “In general, the uncorroborated

       testimony of one victim is sufficient to sustain a conviction.” Holeton v. State,

       853 N.E.2d 539, 541 (Ind. Ct. App. 2006).


[9]    The domestic battery statute provides that “a person who knowingly or

       intentionally . . . touches a family or household member in a rude, insolent, or

       angry manner” commits Class A misdemeanor domestic battery. I.C. § 35-42-

       2-1.3(a)(1). The charge increases to a Level 6 felony if “[t]he person who

       committed the offense is at least eighteen (18) years of age and committed the

       offense against a family or household member in the physical presence of a

       child less than sixteen (16) years of age, knowing that the child was present and

       might be able to see or hear the offense.” I.C. § 35-42-2-1.3(b)(2). To convict

       Johnson as charged, the State was required to prove beyond a reasonable doubt

       that Johnson knowingly touched Nevarez in a rude, insolent, or angry manner

       in the presence of their seven-month old child.


[10]   Johnson argues that there was insufficient evidence to show that he touched

       Nevarez because her testimony was “self-contradicting [sic], improbable, and




       Court of Appeals of Indiana | Memorandum Decision 49A04-1702-CR-288 | July 27, 2017   Page 6 of 10
       vacillating.” (Appellant’s Br. 8)5. In support, Johnson likens Nevarez’s

       testimony to the testimony of the victim in Gaddis v. State, 251 N.E.2d. 658, 253

       Ind. 73 (Ind. 1969). In Gaddis, our Indiana Supreme Court reversed a

       defendant’s conviction where the victim’s testimony regarding the defendant’s

       identity was “vacillating, contradictory and uncertain.” Gaddis, 251 N.E.2d.

       658 at 661.


[11]   However, unlike Gaddis, here, Nevarez positively identified the defendant and

       unequivocally testified that he hit her in the face. Johnson’s argument is merely

       a request to reweigh the evidence. We will not reweigh the evidence or judge

       the credibility of witnesses. See Drane, 867 N.E.2d at 146. When entering its

       verdict, the trial court stated that it found Nevarez’s testimony credible. We

       will not disturb the trial court’s credibility determination. Based on the trial

       court’s finding that Nevarez’s testimony that the defendant hit her was credible,

       there was sufficient evidence to substantiate Johnson’s conviction. See Holeton,

       853 N.E.2d at 542 (explaining that a victim’s testimony is sufficient to sustain a

       conviction).


       2. Double Jeopardy


[12]   Johnson also argues that his conviction for Count 2, Class A misdemeanor

       domestic battery, should be vacated because a double jeopardy violation




       5
        He also makes a passing reference to incredible dubiosity, but he neither cites the standard nor makes any
       cogent argument regarding the doctrine’s application.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1702-CR-288 | July 27, 2017              Page 7 of 10
       occurred when the trial court entered judgment of conviction on that conviction

       before merging it into his Count 1 conviction. The State contends a double

       jeopardy violation did not occur because the trial court only entered judgment

       and sentenced Johnson on Count 1, Level 6 felony domestic battery.


[13]   “[A] defendant’s constitutional rights are violated when a court enters judgment

       twice for the same offense.” Green v. State, 856 N.E.2d 703, 703 (Ind. 2006).

       “A double jeopardy violation occurs when judgments of convictions are entered

       for the same criminal act and cannot be remedied by the practical effect of

       concurrent sentences or by merger after conviction has been entered.” West v.

       State, 22 N.E.3d 872, 875 (Ind. Ct. App. 2014) (internal quotations omitted).

       “A trial court’s act of merging, without also vacating the conviction is not

       sufficient to cure a double jeopardy violation.” Id.


[14]   In West, after a bench trial, the trial court found “West guilty of Count I,

       Operating While Intoxicated, a Class D felony, and Count II, Operating With a

       Blood Alcohol Content of .15 or More, a Class D Felony.” Id. at 874 (internal

       quotations omitted). The court reiterated West’s guilty findings at sentencing

       and “determined that for sentencing purposes Count II shall be merged with

       Count I.” Id. at 875 (internal quotations omitted). The trial court, in a

       document titled “Judgment,” stated that West was “guilty” on Count I and

       Count II before determining that Count II merged into Count I. Id. On appeal,

       this Court concluded that “[u]nder these circumstances” the trial court had

       “entered judgment on the convictions,” and subsequently held that “merger

       was insufficient to remedy the double jeopardy violation.” Id. Our Court then

       Court of Appeals of Indiana | Memorandum Decision 49A04-1702-CR-288 | July 27, 2017   Page 8 of 10
       remanded to the trial court with instructions to vacate West’s Count II

       conviction. Id.


[15]   Similarly, in Bass v. State, 75 N.E.3d 1100 (Ind. Ct. App. 2017), we remanded to

       the trial court where the trial court had entered judgments of conviction before

       merging the convictions. Following a bench trial, the trial court found Bass

       “guilty both of the A and C misdemeanor[s] [OWI].” Id. at 1102. Thereafter,

       the trial court then entered a written order, “simply titled ‘Judgment,’” in which

       it “acknowledged that Bass had been found guilty of both the Class A

       misdemeanor and Class C misdemeanor before then declaring that the two

       counts merged for the purpose of sentencing.” Id. at 1103 (emphasis added).

       This Court held that the merger “was not a sufficient remedy to the apparent

       double jeopardy concern[,]” and we remanded with instructions to vacate

       Bass’s Class C misdemeanor OWI conviction. Id.


[16]   The circumstances in Bass and West mirror those in this case. At the end of the

       bench trial, the trial court found that Johnson was “[g]uilty on Count 1, guilty

       on Count 2 [and] not guilty on Count 3.” (Tr. 49). At sentencing, the trial

       court entered a sentence and then applied it to both Counts 1 and 2.

       Specifically, it then entered a 365-day suspended sentence and stated that

       “Count 1 and Count 2, they will merge for the purposes of sentencing so it will

       be the same on Count 1 and Count 2.” (Tr. 58). Additionally, under a section

       titled “Judgment” in the CCS, the trial court listed that the Count 2 “conviction

       merged.” (App. 11).



       Court of Appeals of Indiana | Memorandum Decision 49A04-1702-CR-288 | July 27, 2017   Page 9 of 10
[17]   Based on the specific record before us and our holding in West, we find the trial

       court entered a judgment for Count 2 before merging it into Count 1, which

       constituted a double jeopardy violation. Accordingly, we remand to the trial

       court with instructions to vacate the judgment entered for Count 2.6


[18]   Affirmed and remanded with instructions.


       May, J., and Brown, J., concur.




       6
        We recognize that the CCS section titled “Sentenced” and trial court’s Sentencing Order show that the trial
       court entered the 365-day on Count 1 only. However, the remainder of the record indicates that the trial
       court found defendant guilty and entered judgment on Count 2 before merging that.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1702-CR-288 | July 27, 2017            Page 10 of 10
