MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Aug 18 2017, 5:58 am
court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer                                    Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John Thompson,                                           August 18, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1701-CR-36
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa Borges, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         49G04-1607-F1-25387



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-36 | August 18, 2017          Page 1 of 7
                                          Case Summary
[1]   John Thompson (“Thompson”) was convicted of two counts of Rape, as Level

      1 felonies,1 Criminal Confinement, as a Level 3 felony,2 Aggravated Battery, a

      Level 3 felony,3 and Strangulation, as a Level 6 felony.4 He challenges his

      convictions for Aggravated Battery and Strangulation, presenting the sole issue

      of whether those convictions violate double jeopardy prohibitions because they

      are based upon the same act as that charged in the Confinement count. We

      affirm in part, reverse in part, and remand with instructions that the trial court

      vacate the Aggravated Battery and Strangulation convictions.



                                  Facts and Procedural History
[2]   During the evening of June 27, 2016, Thompson and K.S. agreed to meet at

      Thompson’s Indianapolis apartment. A disagreement over money arose, and

      K.S. prepared to leave the apartment. When she stood, Thompson began to tug

      at her shorts. K.S. tried to move out of Thompson’s reach by dropping to the

      floor and pushing with her feet; however, Thompson grabbed K.S. under her

      arms and forced her back onto the sofa.




      1
          Ind. Code § 35-42-4-1(a)(1).
      2
          I. C. § 35-42-3-3(a).
      3
          I. C. § 35-42-2-1.5.
      4
          I. C. § 35-42-2-9(b).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-36 | August 18, 2017   Page 2 of 7
[3]   K.S. banged on the wall and screamed in an attempt to get help; her efforts

      were unavailing. Thompson put his arm around K.S.’s neck and strangled her

      into unconsciousness. When K.S. regained consciousness, she was gasping for

      air. Thompson threatened to shoot K.S. and she agreed that she would be quiet

      and compliant. K.S. asked to be allowed to leave and Thompson responded by

      saying that he would kill her.


[4]   Thompson then forced K.S. to engage in oral sex and intercourse. He placed a

      knit hat over her face and walked her to the apartment building exit. He once

      more threatened K.S. that she would be killed if she called police.


[5]   K.S. went to her vehicle and summoned police. Having sustained significant

      injuries, K.S. was taken to the hospital. She was able to identify the apartment

      of her attacker, and Thompson was soon identified as the assailant. He was

      charged with two counts of Rape, and one count each of Criminal

      Confinement, Aggravated Battery, and Strangulation. At the conclusion of a

      bench trial conducted on November 21, 2016, Thompson was found guilty as

      charged.


[6]   Thompson was given concurrent thirty-five-year sentences for each Rape

      conviction, concurrent nine-year sentences for Criminal Confinement and

      Aggravated Battery, and a concurrent one-year sentence for Strangulation. The

      aggregate sentence imposed was thirty-five years imprisonment, with five years

      suspended to probation. He now appeals.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-36 | August 18, 2017   Page 3 of 7
                                 Discussion and Decision
[7]   Thompson argues that his convictions for Criminal Confinement, Aggravated

      Battery, and Strangulation were all based upon his one act of strangling K.S., in

      violation of Indiana’s prohibitions against double jeopardy. He directs our

      attention to the double jeopardy clause of the Indiana Constitution, which

      provides, in relevant part, that “[n]o person shall be put in jeopardy twice for

      the same offense.” Ind. Const. Art. 1, § 14. He further directs our attention to

      Indiana Code Section 35-38-1-6, providing

              Whenever


              (1) A defendant is charged with an offense and an included
                  offense in separate counts; and


              (2) The defendant is found guilty of both counts;


              judgment and sentence may not be entered against the defendant
              for the included offense.


[8]   Pursuant to Indiana Code Section 35-31.5-2-168(1), an included offense is an

      offense that “is established by proof of the same material elements or less than

      all the material elements required to establish the commission of the offense

      charged[.]”


[9]   Whether convictions violate double jeopardy presents a pure question of law,

      which we review de novo. Whitham v. State, 49 N.E.3d 162, 168 (Ind. Ct. App.

      2015). An offense is a factually lesser-included offense when the charging

      Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-36 | August 18, 2017   Page 4 of 7
       instrument alleges “the means used to commit the crime charged include all of

       the elements of the alleged lesser included offense.” Smith v. State, 881 N.E.2d

       1040, 1046 (Ind. Ct. App. 2008).


[10]   In Count III, the State charged that Thompson committed Criminal

       Confinement:

               On or about June 28, 2016, JOHN MICHAEL THOMPSON
               did knowingly or intentionally confine [K.S.] without the consent
               of [K.S.], said act resulting in serious bodily injury to [K.S.], to
               wit, unconsciousness[.]


       (App. at 27.)


[11]   In Count IV, the State charged Thompson with Aggravated Battery, as follows:

               On or about June 28, 2016, JOHN MICHAEL THOMPSON
               did knowingly or intentionally inflict injury on [K.S.] that created
               a substantial risk of death[.]


       (App. at 27.)


[12]   In Count V, the State charged Thompson with Strangulation, as follows:

               On or about June 28, 2016, JOHN MICHAEL THOMPSON, in
               a rude, insolent or angry manner, did knowingly apply pressure
               to the throat or neck, or obstruct the nose or mouth of [K.S.],
               another person, in a manner that impeded the normal breathing
               or the blood circulation of the other person[.]


       (App. at 27.)



       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-36 | August 18, 2017   Page 5 of 7
[13]   The State alleged and proved that Thompson committed Criminal Confinement

       by strangling K.S. into unconsciousness. The Aggravated Battery count, and

       the State’s proof adduced thereon, concerned the same act of strangulation with

       the same injury, that is, unconsciousness. The Strangulation count and proof

       thereon concerned the same act. On the facts of this case, the Aggravated

       Battery and Strangulation offenses are factually lesser-included offenses of

       Criminal Confinement as they were “established by proof of the same material

       elements or less than all the material elements” required to establish Criminal

       Confinement, as charged. See I. C. § 35-31.5-2-168(1). It was impossible for the

       fact-finder to have found that Thompson criminally confined K.S. by strangling

       her into unconsciousness without also having found the facts that Thompson

       strangled K.S. and caused unconsciousness.


[14]   “A double jeopardy violation occurs when judgments of conviction 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, 874-75 (Ind. Ct. App. 2014). Thompson’s convictions for

       Aggravated Battery and Strangulation must be vacated to cure the double

       jeopardy violation.



                                               Conclusion
[15]   Thompson’s convictions for Rape and Criminal Confinement are affirmed. His

       convictions for Aggravated Battery and Strangulation are reversed. We remand



       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-36 | August 18, 2017   Page 6 of 7
       to the trial court with instructions to vacate the convictions and sentences for

       those offenses.


[16]   Affirmed in part, reversed in part, and remanded.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-36 | August 18, 2017   Page 7 of 7
