MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be
                                                                    May 07 2020, 6:26 am
regarded as precedent or cited before any
court except for the purpose of establishing                             CLERK
                                                                     Indiana Supreme Court
the defense of res judicata, collateral                                 Court of Appeals
                                                                          and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark K. Leeman                                          Curtis T. Hill, Jr.
Leeman Law Office and                                   Attorney General of Indiana
Cass County Public Defender
Logansport, Indiana                                     Marjorie Lawyer-Smith
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Jessie Hatcher,                                         May 7, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2613
        v.                                              Appeal from the Cass Superior
                                                        Court
State of Indiana,                                       The Honorable Richard A.
Appellee-Plaintiff                                      Maughmer, Judge
                                                        The Honorable Thomas C.
                                                        Perrone, Senior Judge
                                                        Trial Court Cause No.
                                                        09D02-1301-FB-2



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020                   Page 1 of 15
                                            Case Summary
[1]   A jury found Jessie Hatcher guilty of class B felony rape, class D felony

      criminal confinement, class D felony strangulation, and class A misdemeanor

      domestic battery. On appeal, Hatcher argues that his convictions violate both

      federal and state double jeopardy principles. We disagree and therefore affirm.


                                 Facts and Procedural History
[2]   Hatcher became romantically involved with C.L. and moved into an upstairs

      apartment in Logansport with her and her two-year-old son in November 2012.

      Both Hatcher’s and C.L.’s names were on the lease. Hatcher was unemployed,

      and C.L. had a second-shift job at a meatpacking plant. In January 2013,

      Hatcher told C.L. that “he was tired of the bull crap and that he was moving

      out.” Tr. Vol. 2 at 159. He left the apartment, and C.L. did not think that he

      would return. Later that day, however, C.L. heard Hatcher “screaming”

      outside the apartment, “telling [her] to open the door and then [she] heard the

      downstairs window shatter out of [her] front door.” Id. at 160. C.L. called law

      enforcement, who asked Hatcher to leave, which he did.


[3]   The next morning, Hatcher returned to the apartment “in a bad mood” and

      “want[ing] to argue.” Id. at 162. C.L. became nervous and went to her

      mother’s house, where her son was staying. She then went to work and

      returned to her apartment around 2:30 a.m. Hatcher was not there. C.L. took

      a shower and went to bed. At some point, Hatcher entered the apartment,

      drunk and “really mad.” Id. at 166. He saw a text from C.L.’s ex-boyfriend on


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020   Page 2 of 15
      her phone, started calling her names, and eventually “pulled [her] out of [her]

      bed and started beating [her] head off the floor.” Id. at 167. C.L. “crawled up

      on the little baby mattress that [she] had on the floor[,]” and Hatcher beat her

      head against the brick wall. Id. He punched her, kicked her, and ripped hair off

      the sides and back of her head. C.L. told Hatcher that she “just wanted to

      leave” and be with her son at her mother’s house, and he told her that “he

      didn’t care, that if [her] son was around, he’d be doing the same thing to [her]

      kid.” Id. at 168.


[4]   C.L. kept “trying to get away[,]” which “made it worse.” Id. She tried to hide

      her phone in her bra, but Hatcher ripped her shirt, grabbed the phone, and

      threw it “against the brick wall and shattered it.” Id. At some unspecified

      point, Hatcher “had his arm around [C.L.’s] neck[.]” Id. at 170. He pulled off

      her pants, ripped off her underwear, threw her on the bed, and forced her to

      have sexual intercourse. She was “afraid he was going to keep beating [her]” if

      she did not comply. Id. Hatcher then pulled C.L. off the bed, punched her,

      kicked her, stomped on her ankles, and choked her “to the point where [she]

      felt like [she] was dying.” Id. at 171. Hatcher threw the mattress off the bed

      and told C.L. to get back on the bed. She told him that she did not want to be

      on the box springs, so he pulled the mattress onto the bed, threw her on top of

      it, and forced her to have sex again. When he was finished, he “told [her she]

      needed to lay down and get some rest because he knew [she] had to go to

      work.” Id. at 175. She told him that she “couldn’t go to sleep because [she]

      was afraid that [she] wouldn’t wake up.” Id.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020   Page 3 of 15
[5]   Eventually, C.L. took a shower. Hatcher stood in the bathroom and watched,

      stating that “[h]e didn’t want [her] to escape out of the bathroom window.” Id.

      at 176. C.L. told Hatcher that she had an appointment to get food stamps. He

      told her that she “could go as long as he went.” Id. at 177. They went to the

      food stamp office, and she “wasn’t allowed to leave his side.” Id. They

      returned to the apartment, and Hatcher told C.L. she “needed to lay down and

      rest, and [she] couldn’t do that.” Id. at 178. Despite her pain and injuries, C.L.

      drove to work because she was in danger of losing her job if she did not go.

      After she got to work, she started crying and was taken to human resources,

      where she “told them everything.” Id. at 182. Her parents took her to the

      emergency room, where she was examined by staff and interviewed by police.


[6]   The State charged Hatcher with class B felony rape, class D felony criminal

      confinement, class D felony strangulation, class A misdemeanor interference

      with the reporting of a crime, and class A misdemeanor domestic battery. The

      trial court issued an arrest warrant, which remained outstanding until Hatcher

      was arrested in Chicago in 2018. A two-day jury trial was held in August 2019.

      The trial court entered a directed verdict on the interference charge, and the jury

      found Hatcher guilty of the remaining charges. The trial court imposed

      consecutive executed sentences of twenty years for rape, three years for criminal

      confinement, and three years for strangulation, and a concurrent executed

      sentence of one year for domestic battery, for an aggregate sentence of twenty-

      six years. Hatcher now appeals. Additional facts will be provided as necessary.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020   Page 4 of 15
                                     Discussion and Decision

      Section 1 – Hatcher has not established a violation of the U.S.
                  Constitution’s double jeopardy clause.
[7]   We first address Hatcher’s assertion that his convictions violate federal double

      jeopardy principles. “The Double Jeopardy Clause of the Fifth Amendment to

      the United States Constitution, applicable to the states through the Fourteenth

      Amendment, provides: ‘Nor shall any person be subject for the same offence to

      be twice put in jeopardy of life or limb.’” Rexroat v. State, 966 N.E.2d 165, 168

      (Ind. Ct. App. 2012), trans. denied. “The Double Jeopardy Clause protects

      against successive prosecutions following conviction, reprosecution after

      acquittal, and multiple punishments for the same offense.” Games v. State, 684

      N.E.2d 466, 473 (Ind. 1997), modified on reh’g on other grounds, 690 N.E.2d 211,

      cert. denied (1998). “Where consecutive sentences are imposed at a single

      criminal trial, the role of the constitutional guarantee is limited to assuring that

      the court does not exceed its legislative authorization by imposing multiple

      punishments for the same offense.” Brown v. Ohio, 432 U.S. 161, 165 (1977).

      Hatcher contends that he received multiple punishments—consecutive

      sentences for rape and criminal confinement—for what he alleges was the same

      offense. “Whether convictions violate double jeopardy is a pure question of

      law, which we review de novo.” Rexroat, 966 N.E.2d at 168. Hatcher bears the

      burden of establishing that a double jeopardy violation has occurred. Bennett v.

      State, 883 N.E.2d 888, 893 (Ind. Ct. App. 2008), trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020   Page 5 of 15
[8]   “In the context of multiple punishments imposed in a single criminal

      proceeding, the [U.S. Supreme] Court has declared that the sole purpose of the

      Double Jeopardy Clause is to ensure that a court imposes no more punishment

      on a defendant than the legislature intended.” Games, 684 N.E.2d at 474

      (citing, inter alia, Brown, 432 U.S. at 165). “Whether multiple punishments

      may be imposed against a defendant in a single proceeding is, thus, solely a

      matter of legislative intent.” Id. “While the legislature ‘ordinarily does not

      intend to punish the same offense under two different statutes,’ the legislature is

      constitutionally permitted to do so, as long as the intent of the legislature is

      clear.” Id. (quoting Whalen v. United States, 445 U.S. 684, 692 (1980)); see also

      Brown, 432 U.S. at 165 (“The legislature remains free under the Double

      Jeopardy Clause to define crimes and fix punishments; but once the legislature

      has acted courts may not impose more than one punishment for the same

      offense and prosecutors ordinarily may not attempt to secure that punishment

      in more than one trial.”). “Where legislative intent is clear that multiple

      punishment is intended, double jeopardy is not violated and further inquiry into

      the statutory elements is not appropriate.” Games, 684 N.E.2d at 474 (citing

      Albernaz v. United States, 450 U.S. 333, 340 (1981)). “It is only when legislative

      intent to impose multiple punishments is uncertain that further inquiry is

      required.” Id. at 475.


[9]   “This further inquiry, known as the ‘same elements’ test, determines whether or

      not a legislature intended to impose separate punishments for multiple offenses

      arising in the course of a single act or transaction[.]” Id. “The applicable rule is

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020   Page 6 of 15
       that, where the same act or transaction constitutes a violation of two distinct

       statutory provisions, the test to be applied to determine whether there are two

       offenses or only one is whether each provision requires proof of an additional

       fact which the other does not.” Id. (quoting Blockburger v. United States, 284 U.S.

       299, 304 (1932)). “If Blockburger is satisfied, the court assumes that the statutes

       are not punishing the same offense and multiple punishment is constitutionally

       permitted. If the test is not satisfied, double jeopardy is violated.” Id. (footnote

       omitted). In Games, the Indiana Supreme Court abrogated contrary Indiana

       precedent and clarified that, consistent with controlling federal jurisprudence, in

       applying the same elements test, “we look only to the statutory elements of the

       offenses, not to the charging information, the jury instructions outlining the

       elements of the crime, or the underlying proof needed to establish the

       elements.” Id. at 477.


[10]   When Hatcher committed his offenses in January 2013, Indiana Code Section

       35-42-4-1 defined class B felony rape in pertinent part as follows:


               (a) [A] person who knowingly or intentionally has sexual
               intercourse with a member of the opposite sex when:


                       (1) the other person is compelled by force or imminent
                       threat of force;

                       …


               commits rape, a Class B felony.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020   Page 7 of 15
       Indiana Code Section 35-42-3-3(a) defined class D felony criminal confinement

       in pertinent part as follows:


               (a) A person who knowingly or intentionally:


                        (1) confines another person without the other person’s
                        consent; …


               commits criminal confinement[,] … a Class D felony.


       And Indiana Code Section 35-42-3-1 defined “confine” as “to substantially

       interfere with the liberty of a person.”


[11]   In asserting that Indiana Code Sections 35-42-4-1 and 35-42-3-3 define the same

       offense for purposes of the federal double jeopardy clause, Hatcher purports to

       dive straight into an application of the same elements test without first

       examining whether legislative intent is clear that multiple punishment was

       intended, contrary to Albernaz and Games. 1 And instead of actually determining

       whether each statute requires proof of an additional fact which the other does

       not, Hatcher simply attempts to analogize this case to Brown, which involved

       joyriding and auto theft statutes, and says, “the rape occurred during a single

       continuous confinement.” Appellant’s Br. at 23. We find this analysis

       unpersuasive.




       1
         Because Hatcher does not make a separate argument regarding legislative intent, we do not address that
       issue.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020                      Page 8 of 15
[12]   Clearly, the rape statute requires proof of at least one additional fact that the

       criminal confinement statute does not, i.e., a knowing or intentional act of

       sexual intercourse, and the criminal confinement statute requires proof of at

       least one additional fact that the rape statute does not, i.e., substantial

       interference with another person’s liberty. The evidence offered to prove the

       force or threat of force used to commit a rape may be substantially similar to

       that offered to prove a substantial interference with the victim’s liberty, but that

       is irrelevant for purposes of federal double jeopardy analysis. See Iannelli v.

       United States, 420 U.S. 770, 775 n.17 (1975) (“As Blockburger and other decisions

       applying its principle reveal, the Court’s application of the test focuses on the

       statutory elements of the offense. If each requires proof of a fact that the other

       does not, the Blockburger test is satisfied, notwithstanding a substantial overlap

       in the proof offered to establish the crimes.”) (citations omitted). Accordingly,

       we conclude that Hatcher has failed to establish a violation of the federal

       double jeopardy clause. 2


           Section 2 – Hatcher has failed to establish a violation of the
                 Indiana Constitution’s double jeopardy clause.
[13]   Next, Hatcher contends that his convictions violate the Indiana Constitution’s

       double jeopardy clause, and therefore his criminal confinement, strangulation,



       2
         Hatcher also argues that the rape and criminal confinement offenses are the same offense for federal double
       jeopardy purposes because the latter is allegedly a lesser included offense of the former. This argument is
       inapposite because it relies on how the offenses are charged and proved, which Hatcher himself
       acknowledges are improper considerations in a federal double jeopardy analysis.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020                       Page 9 of 15
       and domestic battery convictions must be vacated. Article 1, Section 14 of the

       Indiana Constitution provides that “[n]o person shall be put in jeopardy twice

       for the same offense.” Despite its similar wording, “Indiana’s Double Jeopardy

       Clause is not coterminous with its federal counterpart.” Martin v. State, 740

       N.E.2d 137, 140 (Ind. Ct. App. 2000), trans. denied (2001). Our supreme court

       has explained that two or more offenses are the same offense in violation of

       Indiana’s double jeopardy clause “if, with respect to either the statutory

       elements of the challenged crimes or the actual evidence used to convict, the

       essential elements of one challenged offense also establish the essential elements

       of another challenged offense.” Richardson v. State, 717 N.E.2d 32, 49 (Ind.

       1999).


[14]   Hatcher does not contend that his offenses are the same offense under

       Richardson’s statutory elements test. Instead, he relies on the actual evidence

       test, pursuant to which “we examine the actual evidence presented at trial in

       order to determine whether each challenged offense was established by separate

       and distinct facts.” Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013). “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, 717 N.E.2d at 53). “The actual evidence test is applied to all the

       elements of both offenses.” Id. “In other words … the Indiana Double

       Jeopardy Clause is not violated when the evidentiary facts establishing the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020   Page 10 of 15
       essential elements of one offense also establish only one or even several, but not

       all, of the essential elements of a second offense.” Id. (quoting Spivey v. State,

       761 N.E.2d 831, 833 (Ind. 2002)). “Our precedents ‘instruct that a “reasonable

       possibility” that the jury used the same facts to reach two convictions requires

       substantially more than a logical possibility.’” Id. (quoting Lee v. State, 892

       N.E.2d 1231, 1236 (Ind. 2008)). “The existence of a ‘“reasonable possibility”

       turns on a practical assessment of whether the [fact finder] may have latched on

       to exactly the same facts for both convictions.’” Id. (quoting Lee, 892 N.E.2d at

       1236) (alteration in Garrett). “We evaluate the evidence from the jury’s

       perspective and may consider the charging information, jury instructions, and

       arguments of counsel.” Id.


[15]   The charging information here outlined the essential elements of each offense

       but offered no factual details. It alleged that Hatcher committed rape in

       violation of Indiana Code Section 35-42-4-1 by knowingly or intentionally

       having sexual intercourse with C.L. when she was compelled by force or the

       imminent threat of force; that he committed criminal confinement in violation

       of Indiana Code Section 35-42-3-3 by knowingly or intentionally confining C.L.

       without her consent; that he committed strangulation in violation of Indiana

       Code Section 35-42-2-9 by knowingly or intentionally applying pressure to

       C.L.’s throat or neck or obstructing her nose or mouth in a manner that

       impeded normal breathing or blood circulation; and that he committed

       domestic battery in violation of Indiana Code Section 35-42-2-1.3 by knowingly

       or intentionally touching C.L., who was living with Hatcher as if she were his


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020   Page 11 of 15
       spouse, in a rude, insolent, or angry manner, resulting in bodily injury.

       Appellant’s App. Vol. 2 at 21-22. The preliminary and final jury instructions

       reiterated these bare-bones allegations.


[16]   The prosecutor’s brief opening statement was nonspecific regarding what

       evidence would be used to prove each crime. The actual evidence presented at

       trial is summarized above. In his closing argument, 3 the prosecutor asserted

       that Hatcher committed rape by having sexual intercourse with C.L. and that

       “[t]he force took place when he punched her in the head repeatedly. When he

       bashed her head into the brick wall. When he kicked her. That was the force.

       That was the threat of the force at the time he was having sex.” Tr. Vol. 3 at

       12-13.


[17]   Regarding criminal confinement, the prosecutor stated,


                I would argue that [C.L.] was confined both when the arm was
                around her neck, but really the confinement that I want you to
                find [Hatcher] guilty on is she wanted to leave. She wanted to go
                to her mom’s. She wanted to go to her kid. He had said, “well,
                if your kid was here, I’d do the same thing to him” right? He
                would not let her leave. I think the reasonable thing here is that
                she was trying to leave.


       Id. at 14.




       3
        As will become evident, the prosecutor’s closing argument is more relevant to Hatcher’s common-law
       argument than his constitutional argument.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020                  Page 12 of 15
[18]   As for strangulation, the prosecutor remarked,


               [I]t’s got to be in a manner that impeded the normal breathing or
               the blood circulation of [C.L.] She indicated both, right? She
               said she was having trouble breathing when [Hatcher] was doing
               it and she said she started to black out to do it and I’ll tell you
               that is a result of oxygen in your blood not getting to your
               head.… The [sexual assault nurse examiner] indicated that
               [C.L.’s] neck appeared swollen, which isn’t something that
               always shows up on a picture well.… She took great records.
               “Patient reports discomfort in the neck area, said her jaw hurt.
               Reported he choked me. He did it, like, two times.” And the
               documentation there shows the extent of the injuries on her front
               and on her back during the rape and during the battery. “Patient
               reports choking. He did it, like, two times.” There’s a specific
               notation for the scratch around her neck. “Also reports he had
               me in a choke hold one time.” Bilateral injuries to the elbows
               and upper right back have appeared to be rug burns, which
               would be consistent with the idea that she was forced onto her
               back and she was struggling. Right? More evidence of the rape.


       Id. at 16-17.


[19]   And finally, regarding domestic battery, the prosecutor stated,


               I guess, [Hatcher] was, he was living there. He was eating there.
               He was using oxygen. It sounds like [C.L.] was putting food on
               the table, paying the utility bills, paying the rent, so that, to that
               extent they were both maintaining a common household.…
               They were living, let me back up to the specific line, “living as if
               a spouse of [C.L.]”… They were living in that manner and he
               should be found guilty of the domestic battery as well.


       Id. at 16.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020   Page 13 of 15
[20]   Hatcher argues that “[t]here is a reasonable possibility the jury used the same

       evidence to convict [him] of all four crimes.” Appellant’s Br. at 28. Assuming

       for argument’s sake that there is a reasonable possibility that the jury found that

       he confined, strangled, and battered C.L. during the rape, as Hatcher suggests,

       the facts that established the essential elements of the first three offenses did not

       establish all the essential elements of rape, or of each other, as demonstrated by

       the charging information. Therefore, we conclude that Hatcher has failed to

       establish a violation of the Indiana Constitution’s double jeopardy clause.


            Section 3 – Hatcher has failed to establish a violation of
                 Indiana’s common-law double jeopardy rules.
[21]   Finally, we address Hatcher’s argument that his convictions violate Indiana’s

       common-law double jeopardy rules. Our courts “have long adhered to 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.” Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002). “One of those

       rules prohibits ‘[c]onviction and punishment for a crime which consists of the

       very same act as an element of another crime for which the defendant has been

       convicted and punished.’” Taylor v. State, 101 N.E.3d 865, 872 (Ind. Ct. App.

       2018) (alteration in Taylor) (quoting Richardson, 717 N.E.2d at 55 (Sullivan, J.,

       concurring)).


[22]   Hatcher contends that his strangulation, domestic battery, and rape convictions

       “violate Indiana’s common law rules because the crimes of strangulation and

       [battery] were the very same acts used to prove the force element of [his] rape

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020   Page 14 of 15
       conviction.” Appellant’s Br. at 32. Notwithstanding the prosecutor’s

       suggestion to the contrary, C.L. unequivocally testified that Hatcher strangled

       her on the floor after the first act of nonconsensual sexual intercourse, which

       occurred on the bed, and she did not specify when he put his arm around her

       neck. Likewise, Hatcher punched and kicked C.L. and stomped on her ankles

       after that first sexual act. In sum, Hatcher has failed to establish a violation of

       Indiana’s common-law double jeopardy rules. Therefore, we affirm. 4


[23]   Affirmed.


       Bailey, J., and Altice, J., concur.




       4
        C.L.’s testimony indicates that the State easily could have avoided any potential double jeopardy problems
       by more carefully delineating the evidence used to establish the essential elements of each crime.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020                     Page 15 of 15
