      MEMORANDUM DECISION
                                                                            Feb 06 2015, 9:50 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be 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
      Bruce W. Graham                                           Gregory F. Zoeller
      Graham Law Firm P.C.                                      Attorney General of Indiana
      Lafayette, Indiana
                                                                Chandra K. Hein
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Shannon Robertson,                                       February 6, 2015

      Appellant-Defendant,                                     Court of Appeals Cause No.
                                                               79A05-1407-CR-302
              v.                                               Appeal from the Tippecanoe
                                                               Superior Court, The Honorable
                                                               Thomas H. Busch, Judge
      State of Indiana,                                        Cause No. 79D02-1307-FA-00010
      Appellee-Plaintiff




      Vaidik, Chief Judge.



                                            Case Summary
[1]   Shannon Robertson was working as an escort when she developed a romantic

      relationship with one of her clients, James Brent Harmon. After Robertson and


      Court of Appeals of Indiana | Memorandum Decision 79A05-1407-CR-302 | February 6, 2015       Page 1 of 9
      Harmon broke up, she was told to stop contacting Harmon, but she did not

      stop. Robertson obtained a shotgun and took it to Harmon’s house, sent him a

      text to lure him outside, pointed the shotgun at him, and pulled the trigger. The

      shotgun did not fire and Harmon was able to run away. On appeal, Robertson

      argues that her convictions for attempted battery and intimidation violate

      Indiana’s prohibition against double jeopardy under the actual-evidence test.

      Finding that the same evidence was used to prove the threat element of

      intimidation as was used to prove attempted battery, we reverse Robertson’s

      intimidation conviction and remand to the trial court with instructions to vacate

      the conviction.



                            Facts and Procedural History
[2]   Shannon Robertson lived in Indianapolis, working as an escort and earning

      approximately $150,000.00 per year. In July 2009 James Brent Harmon, a

      math teacher who was married with children, became one of Robertson’s

      clients. After several meetings, they began a romantic relationship, which

      lasted “[o]ff and on” for three and a half years. Tr. p. 58. The relationship was

      tumultuous—they were both “hotheads,” according to Robertson—and when

      things were “off,” Robertson would harass Harmon, usually “via the internet.”

      Id. at 209, 59. She would, for instance, post disparaging comments about

      Harmon on blogs or websites, or create a Facebook page in Harmon’s name,

      using his photos and identity to draw people Harmon knew to that page, where




      Court of Appeals of Indiana | Memorandum Decision 79A05-1407-CR-302 | February 6, 2015   Page 2 of 9
      she would reveal that he was involved with an escort. As a result of his

      relationship with Robertson, Harmon and his wife divorced in April 2010.


[3]   Harmon’s relationship with Robertson ended in January 2013, and in June of

      that year, Harmon stopped communicating with Robertson: his attorney sent a

      letter to Robertson requesting that she cease all communication with Harmon,

      and Harmon stopped initiating or responding to Robertson’s ongoing attempts

      to communicate by telephone, e-mail, and text messages.


[4]   On July 7, 2013, at 9:56 p.m., Robertson sent a text to Harmon stating that she

      had left his Cubs blanket and some money outside his house. See State’s Ex.

      35. In fact, she had obtained a shotgun from her father’s house and was waiting

      outside for Harmon. After receiving the text message, Harmon went outside

      and walked around his house. He spotted Robertson “creeping up along the

      tree line.” Tr. p. 67. Harmon asked her what she was doing there and took a

      step toward her. At that point, Harmon saw her raise her arms in such a way

      that he thought she had a long gun, so he turned and started running back into

      his house. And “almost instantaneously when [he] turned to run[,]” Harmon

      heard a “click[,]” which sounded like “the hammer coming down on a gun.”

      Id. at 70. Robertson later testified that she had aimed the shotgun in the air and

      pulled the trigger. Id. at 221. In any event, the loaded shotgun did not fire.


[5]   Once inside his house, Harmon locked the door and called 911. While he was

      on the phone, he saw that someone was “trying to get in [his] front door . . .




      Court of Appeals of Indiana | Memorandum Decision 79A05-1407-CR-302 | February 6, 2015   Page 3 of 9
      working the latch.” Id. at 72. Shortly thereafter, the police arrived, Robertson

      was apprehended, and the shotgun was located in a nearby car.


[6]   Robertson was charged with Count I, attempted murder, a Class A felony;

      Count II, attempted battery (while armed with a deadly weapon), a Class C

      felony; Count III, intimidation (drawing or using a deadly weapon), a Class C

      felony; Count IV, criminal recklessness, a Class D felony; and Count V,

      pointing a firearm, a Class D felony. The State later amended the charging

      information to include Count VI, attempted aggravated battery, a Class B

      felony. Following a jury trial in May 2014, Robertson was found guilty on all

      counts except Count I, attempted murder, and Count VI, attempted aggravated

      battery. Because they were lesser-included offenses, the trial court vacated

      Robertson’s convictions on Counts IV and V. Thereafter Robertson was

      sentenced on Count II, Class C felony attempted battery, to five years executed

      in the Department of Correction with one year suspended to probation, and on

      Count III, Class C felony intimidation, to five years executed in the

      Department of Correction with one year suspended to probation, with the

      sentences to be served concurrently.


[7]   Robertson now appeals.



                                 Discussion and Decision
[8]   On appeal, Robertson contends that her convictions on Count II, Class C

      felony attempted battery while armed with a deadly weapon, and Count III,


      Court of Appeals of Indiana | Memorandum Decision 79A05-1407-CR-302 | February 6, 2015   Page 4 of 9
       Class C felony intimidation with a deadly weapon, violate the Double Jeopardy

       Clause of the Indiana Constitution, which provides, “No person shall be put in

       jeopardy twice for the same offense.” Ind. Const. art. 1, § 14.                    In Richardson v.

       State, 717 N.E.2d 32 (Ind. 1999), our Supreme Court concluded that two or

       more offenses are the same offense in violation of article 1, section 14 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.

       Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013).


[9]    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, 717 N.E.2d at 53). To

       determine what facts were used to prove the offense, we examine the charging

       information, evidence, arguments, and jury instructions. Adcock v. State, 933

       N.E.2d 21, 31 (Ind. Ct. App. 2010), trans. denied.


[10]   In Richardson, the defendant appealed his convictions for robbery and Class A

       misdemeanor battery, arguing that the convictions violated the Double

       Jeopardy Clause of the Indiana Constitution. See Richardson, 717 N.E.2d at 37.

       Specifically, the defendant contended that the evidence of the beating before the

       Court of Appeals of Indiana | Memorandum Decision 79A05-1407-CR-302 | February 6, 2015     Page 5 of 9
       robbery formed the basis of both convictions. Id. at 54. Our Supreme Court

       agreed, finding that from the evidence presented, there was a reasonable

       possibility that the evidentiary facts used to establish the essential elements of

       robbery were also used to establish the essential elements of the Class A

       misdemeanor battery. Id. Thus, the Court concluded that convicting and

       sentencing the defendant on both offenses violated the Indiana Double

       Jeopardy Clause. Id.


[11]   In the case before us today, Robertson was convicted and sentenced on Class C

       felony attempted battery and Class C felony intimidation. At the time

       Robertson committed these offenses,1 Class C felony battery was defined as

       follows: “A person who knowingly or intentionally touches another person in a

       rude, insolent, or angry manner commits battery, . . . a Class C felony if it

       results in serious bodily injury to any other person or if it is committed by

       means of a deadly weapon[.]” Ind. Code Ann. § 35-42-2-1(a)(3) (West 2012).

       Attempt was defined as follows:

                  A person attempts to commit a crime when, acting with the culpability
                  required for commission of the crime, the person engages in conduct
                  that constitutes a substantial step toward commission of the crime. An




       1
           The Indiana General Assembly revised our criminal code effective July 1, 2014.


       Court of Appeals of Indiana | Memorandum Decision 79A05-1407-CR-302 | February 6, 2015   Page 6 of 9
               attempt to commit a crime is a felony or misdemeanor of the same
               level or class as the crime attempted.


       Ind. Code Ann. § 35-41-5-1(a) (West 2012). And Class C felony intimidation

       was defined as follows:


               (a) A person who communicates a threat to another person, with the
               intent:


                        (1) that the other person engage in conduct against the other
                        person’s will;


                        (2) that the other person be placed in fear of retaliation for a
                        prior lawful act;


                                                     *****


               commits intimidation[.] . . .


               (b) . . . [T]he offense is a:


                        (2) Class C felony if, while committing it, the person draws or
                        uses a deadly weapon.


       Ind. Code Ann. § 35-45-2-1 (West 2012) (formatting altered).


[12]   Here, Robertson argues that the evidence used to establish intimidation was the

       same as that used to establish attempted battery. Specifically, she argues that

       under the actual-evidence test, the same evidence used to establish the threat

       element required in intimidation was used to establish attempted battery with a

       deadly weapon. As stated in her brief, “It was the act of pointing the firearm

       Court of Appeals of Indiana | Memorandum Decision 79A05-1407-CR-302 | February 6, 2015   Page 7 of 9
       and pulling the trigger which constituted both the attempted battery, and the

       intimidation. The threat was pointing the firearm, and the battery was pointing

       the firearm and pulling the trigger.” Appellant’s Br. p. 9. We agree.


[13]   To prove that Robertson committed intimidation, the State relied solely on the

       fact that she pointed a gun at Harmon. This is clear from the State’s closing

       argument:

               Communicated a threat. What is a threat? It’s communication by
               words or action. We know she didn’t speak to [Harmon] so let’s look at her
               actions. Pointing a firearm at him. . . . Pointing a firearm at someone, is
               putting them in fear that you’re going to unlawfully injure them.
               That’s her intention. She wants to put him [in] fear. She pointed a
               shotgun at him. That’s communicating a threat. With intent that []
               Harmon . . . engage in conduct against his will or with the intent that
               [] Harmon be placed in fear of retaliation for a prior unlawful act.


       Tr. p. 248 (emphasis added).


[14]   To prove that Robertson committed attempted battery with a deadly weapon,

       the State relied on the attempted firing of the loaded shotgun that was pointed

       at Harmon. The State summarized the evidence in support of this offense in

       this portion of the closing argument:

               Now, she didn’t walk up to him. She didn’t place her hands on him.
               Didn’t try to do that. But she tried to touch him with the shot shell.
               That’s the touching here. That’s the touching we’re talking about. It
               doesn’t have to be touching with your hands. It can be touching with
               an object. And in this case, that object was the shot shell. . . . She got
               the gun. She got the ammo. And she drove up to West Lafayette.
               She sent a message to [Harmon]. To lure him outside. To get him to
               come outside so that she could shoot him. She was lying in wait. She
               had her shotgun ready. She loaded the shotgun. When [he] came
       Court of Appeals of Indiana | Memorandum Decision 79A05-1407-CR-302 | February 6, 2015   Page 8 of 9
               outside, she snuck up behind him, he turned and looked at her and she
               raised that shotgun, she pointed it at him, and then she attempted to fire it.
               Each of these are substantial steps toward the commission of the crime
               of battery at least.


       Id. at 250-51 (emphasis added).


[15]   The State relied on the same act—pointing a shotgun at Harmon—to convict

       Robertson of both attempted battery and intimidation. To the extent that the

       State also relied on Robertson pulling the trigger of the shotgun to prove the

       attempted-battery charge, the act of pointing the firearm at Harmon was

       nonetheless necessary to sustain the attempted-battery charge. Thus, we

       conclude that Robertson has demonstrated a reasonable possibility that the

       evidentiary facts used by the jury to establish the essential elements of

       attempted battery were also used to establish intimidation. Accordingly, we

       reverse and remand to the trial court with instructions to vacate the Class C

       felony intimidation conviction.


[16]   Reversed and remanded with instructions.


       Baker, J., and Riley, J., concur.




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