MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                              Apr 14 2016, 8:42 am

this Memorandum Decision shall not be                                    CLERK
regarded as precedent or cited before any                            Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court
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
Valerie K. Boots                                         Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dejuan Wells,                                            April 14, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1506-CR-604
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt Eisgruber,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G01-1309-FA-62015



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016         Page 1 of 10
                               Case Summary and Issues
[1]   The State charged DeJuan Wells with twenty-five counts arising from conduct

      related to his live-in girlfriend. A jury found him not guilty of two of those

      counts, but guilty of the remainder. The trial court entered judgment of

      conviction on twenty of the counts and sentenced Wells to a total of twenty-six

      years. On appeal, Wells challenges only his convictions for criminal deviate

      conduct, a Class B felony; rape, a Class B felony; battery, a Class D felony; and

      battery, a Class A misdemeanor. He raises several issues on appeal, which we

      consolidate and restate as: 1) whether there was sufficient evidence to support

      his convictions for criminal deviate conduct and rape; and 2) whether his

      convictions for both Class D felony battery (Count VIII) and Class A

      misdemeanor battery (Count X) violate Indiana’s Double Jeopardy Clause. We

      conclude there was sufficient evidence to convict Wells of criminal deviate

      conduct and rape and affirm those convictions. We also conclude, however,

      that his convictions for both Class D felony battery and Class A misdemeanor

      battery violate Indiana’s Double Jeopardy Clause. We therefore reverse Wells’

      conviction for Class A misdemeanor battery and remand with instructions for

      the trial court to amend the abstract of judgment accordingly. We affirm in

      part, reverse in part, and remand.



                            Facts and Procedural History
[2]   In late June or early July 2013, Wells engaged in an argument with his

      significant other, T.H., in the home they shared. Wells and T.H. were not

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016   Page 2 of 10
      married, but they were involved in a long-term romantic relationship and have

      three children together. The argument escalated when Wells punched T.H.

      with a closed fist and pulled her upstairs to their eldest child’s bedroom. Wells

      then retrieved a small handgun; he put it in T.H.’s mouth and held it to T.H.’s

      head while threatening her. She begged him not to shoot and to think about his

      kids. He eventually stopped.


[3]   In early September 2013, Wells and T.H. again argued in their home. Wells

      struck T.H. with her phone and punched her “a few times,” hitting her left eye,

      arms, and legs. Transcript at 145. The argument continued into the kitchen,

      where Wells pulled out a knife and put it on the counter. He became apologetic

      and asked T.H. to perform oral sex to make him feel better, which she did.


[4]   On September 18, 2013, Wells and T.H. once again argued in their home. This

      time, the couple argued in their bedroom, resulting in Wells grabbing T.H.,

      throwing her to the opposite side of the bed, punching her, and choking her first

      with both hands and then by applying pressure to her neck with his arm or leg

      as she laid on her back on the bed. Once Wells stopped attacking T.H., he told

      her she needed to do something to make him feel better and wanted to have sex

      with her. She said no, but she was scared and afraid he would beat her again,

      so she eventually “went along with it.” Id. at 199. He at least partially tore her

      underwear off and had sexual intercourse with her.


[5]   The next morning T.H. dropped her eldest son off at school and called the

      police. She met detectives at the police station and told them about Wells’


      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016   Page 3 of 10
      abuse. He was arrested at their home. T.H. agreed to go to the hospital, where

      she consented to a sexual assault examination. The forensic nurse examiner

      observed a right eye injury, bruising on her left eye, abrasions and swelling on

      her neck, bruising behind her ear, and injuries to her shoulders and right arm.

      Lab analysis of the sex crimes kit performed during the sexual assault

      examination revealed the presence of Wells’ DNA inside T.H.’s vagina.


[6]   After looking up Wells’ charges online, T.H. unsuccessfully attempted to have

      the “sexual charges” dropped by contacting detectives and writing a letter to the

      court. Id. at 188. During this time, Wells violated a no contact order by

      repeatedly calling T.H. from jail. The State amended the charging information

      to add thirteen counts of invasion of privacy based on this contact. Wells was

      ultimately convicted of criminal deviate conduct, a Class B felony; rape, a Class

      B felony; battery, a Class C felony; battery, a Class D felony; domestic battery,

      a Class D felony; strangulation, a Class D felony; pointing a firearm, a Class D

      felony; three counts of battery, all Class A misdemeanors; and thirteen counts

      of invasion of privacy, all Class A misdemeanors.


[7]   At sentencing, the trial court merged a Class A misdemeanor battery, the Class

      D felony domestic battery, and the Class D felony pointing a firearm

      convictions with other convictions and sentenced Wells on the remaining

      counts to a total of twenty-six years executed, with twenty years to be served in

      the Department of Correction and six years to be served in community

      corrections. Wells now appeals.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016   Page 4 of 10
                                  Discussion and Decision
                                   I. Sufficiency of Evidence
                                       A. Standard of Review
[8]    “When reviewing the sufficiency of the evidence to support a conviction, we

       consider only the probative evidence and reasonable inferences supporting the

       verdict.” Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct. App. 2013), trans. denied.

       We will not reweigh the evidence or assess the credibility of the witnesses.

       Glenn v. State, 999 N.E.2d 859, 861 (Ind. Ct. App. 2013). “The conviction will

       be affirmed unless no reasonable fact-finder could find the elements of the crime

       proven beyond a reasonable doubt.” Id. (citation and quotation marks

       omitted).


                         B. Criminal Deviate Conduct and Rape
[9]    “A person who knowingly or intentionally causes another person to perform or

       submit to deviate sexual conduct when . . . the other person is compelled by

       force or imminent threat of force . . . commits criminal deviate conduct, a Class

       B felony.” Ind. Code § 35-42-4-2(a)(1) (2013). “[A] person who knowingly or

       intentionally has sexual intercourse with a member of the opposite sex when

       . . . the other person is compelled by force or imminent threat of force . . .

       commits rape, a Class B felony.” Ind. Code § 35-42-4-1(a)(1) (2013).


[10]   Wells contends no reasonable inference could be drawn from T.H’s testimony

       that she was forced to perform oral sex during the early September episode,


       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016   Page 5 of 10
       which is the basis for the criminal deviate conduct conviction, nor that she was

       forced to have sexual intercourse on September 18, which is the basis for the

       rape conviction. He argues T.H. was not compelled by force or imminent

       threat of force because both sex acts occurred after the physical attacks ended.

       Although T.H.’s testimony was equivocal about her consent to perform oral sex

       and have sexual intercourse, we conclude she was compelled to consent and

       perform under threat of force in both instances. Our supreme court has stated,

       “Force or threat of force may be shown even without evidence of the attacker’s

       oral statement of intent or willingness to use a weapon and cause injury, if from

       the circumstances it is reasonable to infer the attacker was willing to do so.”

       Smith v. State, 500 N.E.2d 190, 192 (Ind. 1986) (quoting Lewis v. State, 440

       N.E.2d 1125, 1127 (Ind. 1982)). Wells did not verbally threaten physical force

       against T.H. if she refused to engage in sexual acts with him; nonetheless, a

       threat can be reasonably inferred from the circumstances.


[11]   During the early September incident, Wells punched T.H. and struck her with a

       phone. When she ran to the kitchen, he followed and placed a knife on the

       countertop. Although he had begun apologizing, the knife was in full view

       when he requested and received oral sex from T.H. On September 18, Wells

       strangled T.H. until she nearly lost consciousness and also gave her a black eye.

       He requested intercourse and she initially answered “no,” but then he ripped off

       her underwear and had intercourse with her anyway. In both cases, it is

       reasonable to infer Wells was willing to exert force against T.H., given he had

       already done so.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016   Page 6 of 10
[12]   In Smith, 500 N.E.2d at 191, the defendant held a knife in his hand while raping

       the victim. Although he did not explicitly threaten to use the knife against the

       victim, the circumstances were sufficient to show that the victim was not acting

       upon her own free will; rather, it was reasonable to infer she was acting under

       threat of violence. Wells’ willingness to commit violence against T.H. is akin to

       the perpetrator in Smith holding a knife throughout the assault. In both cases,

       the victims knew that the defendants were readily able to commit violence

       against them if they resisted. We therefore conclude the jury could reasonably

       infer that T.H. was compelled by the imminent threat of force to agree to Wells’

       sexual requests.


[13]   Wells also argues he did not have the necessary mens rea for the commission of

       criminal deviate conduct and rape against T.H. For both offenses, a person

       must “knowingly or intentionally” engage the victim in specified sexual

       conduct when “the other person is compelled by force or imminent threat of

       force.” Ind. Code §§ 35-42-4-2(a), 35-42-4-1(a). “A person engages in conduct

       ‘knowingly’ if, when he engages in the conduct, he is aware of a high

       probability that he is doing so.” Ind. Code § 35-41-2-2(b). “Knowledge, like

       intent, is a mental state of the actor; therefore, the trier of fact must resort to

       reasonable inferences based on the examination of the surrounding

       circumstances to reasonably infer its existence.” Slone v. State, 912 N.E.2d 875,

       880 (Ind. Ct. App. 2009), trans. denied.


[14]   Wells argues because he asked, rather than demanded, that T.H. engage in the

       sexual acts, and she did not verbally refuse his requests or otherwise rebuff him,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016   Page 7 of 10
       he “could not have had an awareness that he was compelling her by force.”

       Brief of Appellant at 25. Yet, the evidence shows that immediately prior to the

       first incident, Wells had been angrily hitting and punching T.H., causing her

       pain and giving her a black eye. He placed a knife in plain view before

       requesting T.H. give him oral sex. Similarly, prior to the second incident,

       Wells angrily threw T.H. across their bed, hit her, and then put his hands

       around her neck and squeezed until she became lightheaded and had difficulty

       breathing. When Wells indicated he wanted to have sex with her, T.H. said no

       and asked why he was doing this. Wells told her she “needed to do something

       to make him feel better,” tr. at 162, and she ultimately submitted. It is

       reasonable to infer from these surrounding circumstances that Wells was aware

       T.H. was not participating willingly but only because she feared further

       violence.


                                        II. Double Jeopardy
[15]   Wells contends his convictions for Class D felony battery (Count VIII) and

       Class A misdemeanor battery (Count X) violate Indiana’s Double Jeopardy

       Clause, which provides, “No person shall be put in jeopardy twice for the same

       offense.” Ind. Const. art. 1, § 14. We review whether multiple convictions

       violate the Double Jeopardy Clause de novo. Jones v. State, 976 N.E.2d 1271,

       1275 (Ind. Ct. App. 2012), trans. denied.


[16]   Specifically, Wells argues these convictions violate the actual evidence test:




       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016   Page 8 of 10
               To show that two challenged offenses constitute the “same
               offense” in a claim of double jeopardy, a defendant must
               demonstrate 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.


       Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999).


[17]   We conclude, and the State concedes, there is a reasonable possibility the jury

       considered the same evidentiary facts to establish the essential elements of

       misdemeanor battery and felony battery. Both charges alleged Wells touched

       T.H. in a rude, insolent, or angry manner that resulted in pain and/or bruising

       on September 18.1 Both convictions were based on T.H.’s testimony that Wells

       hit or punched her with his hands on that night. The State’s closing argument

       to the jury likewise failed to factually distinguish the two charges. See C.H. v.

       State, 15 N.E.3d 1086, 1094 (Ind. Ct. App. 2014) (“On appeal, in determining

       the facts used by the fact-finder, it is appropriate for a reviewing court to

       examine the evidence presented, the charging information, arguments of

       counsel, and any other factors that may have guided the fact-finder in making a

       decision.”), trans. denied. As such, there is a reasonable possibility that the jury

       considered the same evidence to convict Wells on each charge. We therefore

       remand with instructions to vacate the lesser charge of misdemeanor battery.




       1
         The Class D felony charge additionally alleged that T.H. was a family or household member and that Wells
       committed the act in the presence of children under the age of sixteen. Ind. Code § 35-42-2-1(a)(2)(M)
       (2013).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016          Page 9 of 10
       See Richardson, 717 N.E.2d at 55 (remedying a double jeopardy violation by

       vacating the conviction with “less severe penal consequences”).



                                               Conclusion
[18]   There was sufficient evidence to support Wells’ criminal deviate conduct and

       rape convictions, and we affirm those convictions. However, Wells’

       convictions for both misdemeanor battery and felony battery arising out of a

       single incident violate Indiana’s Double Jeopardy Clause. We therefore reverse

       and remand with instructions for the trial court to vacate Wells’ conviction for

       misdemeanor battery and amend the abstract of judgment accordingly.


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


       Barnes, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016   Page 10 of 10
