                                                                              FILED
                                                                      Jul 29 2016, 9:40 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Megan Shipley                                               Gregory F. Zoeller
Marion County Public Defender Agency                        Attorney General of Indiana
Indianapolis, Indiana                                       Jesse R. Drum
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jamel Owens,                                                July 29, 2016
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            49A02-1601-CR-41
        v.                                                  Appeal from the Marion Superior
                                                            Court
State of Indiana,                                           The Honorable Christina
Appellee-Plaintiff.                                         Klineman, Judge
                                                            Trial Court Cause No.
                                                            49G17-1509-F6-32725



Pyle, Judge.




Court of Appeals of Indiana | Opinion 49A02-1601-CR-41] | July 29, 2016                           Page 1 of 8
                                         Statement of the Case
[1]   Jamel Owens (“Owens”) appeals, following a bench trial, his convictions for

      Level 6 felony criminal recklessness 1 and Level 6 felony battery in the presence

      of a child.2 Owens argues, and the State concedes, that these convictions

      violate the Indiana Constitutional prohibition against double jeopardy. The

      parties, however, disagree on which of the two convictions should be vacated.

      Here, the trial court sentenced Owens to the same sentence on each conviction,

      but it also entered a domestic violence determination based on his battery

      conviction. Because the Level 6 felony criminal recklessness has the less severe

      penal consequences, we reverse and remand to the trial court to vacate Owens’s

      Level 6 felony criminal recklessness conviction.


[2]   We reverse and remand.


                                                       Issue
               Whether Owens’s convictions violate the Indiana Constitutional
               prohibition against double jeopardy.

                                                       Facts
[3]   In September 2015, Owens was married to and lived with Candace Owens

      (“Candace”). Twelve-year-old, J.D., of whom Candace had legal custody, also




      1
          IND. CODE § 35-42-2-2.
      2
       I.C. § 35-42-2-1. Owens was also convicted of Level 6 felony intimidation but does not challenge this
      conviction.

      Court of Appeals of Indiana | Opinion 49A02-1601-CR-41] | July 29, 2016                          Page 2 of 8
      lived with them. On September 3, 2015, upon Candace’s return home from

      work, Owens got angry with Candace and questioned her about why it took her

      so long to get home. The two argued, and then Candace left the house and

      drove away. Owens phoned her, asked her where she was going, accused her

      of driving too fast, and told her to return home. Candace went back home, and

      Owens asked her why she was driving so fast and stated that she “could have

      put [her] life in danger.” (Tr. 11). The two again argued, and J.D. was in the

      house near where they were arguing. Owens then walked out to the garage,

      returned with a bottle of lighter fluid, and “sprayed it [on Candace] from the

      waist down.” (Tr. 14). Owens “then pulled out a lighter and said, ‘Since you

      don’t care about your life, . . . then why should I?’” (Tr. 16). As he held up the

      lighter, Candace asked, “‘So you’re really going to light me on fire? You’re

      really going to do this?’” (Tr. 16). Owens “stood there for a minute” and then

      walked back to the garage. (Tr. 16). When he returned to the house, Owens

      told Candace that he was not going to “light [her] on fire” and that he “really

      wanted to scare” her. (Tr. 16). Candace reported Owens’s actions to police

      one week later.


[4]   The State charged Owens with Count 1, Level 6 felony criminal recklessness;

      Count 2, Level 6 felony intimidation; Count 3, Level 6 felony battery; and

      Count 4, Class B misdemeanor battery. The trial court held a bench trial on

      December 16, 2015. Candace and J.D. testified regarding Owens’s actions,

      including his act of throwing lighter fluid on Candace, on September 3. Owens

      testified on his own behalf and denied that he had thrown lighter fluid on or


      Court of Appeals of Indiana | Opinion 49A02-1601-CR-41] | July 29, 2016   Page 3 of 8
      had threatened Candace. During closing arguments, the State argued that the

      evidence that Owens poured lighter fluid on Candace supported his convictions

      for Level 6 felony criminal recklessness and Level 6 felony battery. The trial

      court found Owens guilty as charged.3


[5]   The trial court held the sentencing hearing immediately after the bench trial.

      During the hearing, Candace testified that this was the fourth or fifth incident of

      domestic violence with Owens. She also testified that she had a no-contact

      order against Owens and that he had violated it during the pendency of this

      case when he contacted her and told her that he would not contest their divorce

      if she dropped this case against him. The trial court merged the Class B

      misdemeanor battery conviction into the Level 6 felony battery conviction and

      sentenced Owen on the remaining three convictions. For all three of Owens’s

      Level 6 felony convictions, the trial court imposed two (2) year suspended

      sentences to be served on probation and ordered that these sentences be served

      concurrently. The trial court also ordered Owens to have no contact with

      Candace or J.D., and it ordered him to participate in domestic violence

      counseling. Additionally, the trial court entered a domestic violence

      determination pursuant to INDIANA CODE § 35-38-1-7.7 and informed Owens




      3
        The trial court initially stated that it was entering a judgment of conviction on all counts. However, the
      sentencing order and chronological case summary indicate only that the Class B misdemeanor battery
      conviction was merged with the Level 6 felony battery conviction, and they do not indicate that a judgment
      of conviction was otherwise entered on Class B misdemeanor battery.

      Court of Appeals of Indiana | Opinion 49A02-1601-CR-41] | July 29, 2016                            Page 4 of 8
      that he was, therefore, prohibited him from possessing a firearm and

      ammunition. Owens now appeals.


                                                      Decision
[6]   Owens argues, and the State concedes, that his convictions for Level 6 felony

      criminal recklessness and Level 6 felony battery in the presence of a child

      violate the Indiana Constitutional prohibition against double jeopardy, either

      under the actual evidence test or the common law prohibition against multiple

      convictions for the very same act. The parties, however, disagree on how to

      remedy the double jeopardy violation. Owens requests that we vacate his Level

      6 felony battery in the presence of a child conviction, and the State requests that

      we vacate Owens’s Level 6 felony criminal recklessness conviction.4


[7]   Our Indiana Supreme Court has explained:


               When two convictions are found to contravene double jeopardy
               principles, a reviewing court may remedy the violation by
               reducing either conviction to a less serious form of the same
               offense if doing so will eliminate the violation. If it will not, one
               of the convictions must be vacated. In the interest of efficient
               judicial administration, the trial court need not undertake a full
               sentencing reevaluation, but rather the reviewing court will make




      4
       Owens argues that we should instruct the trial court to vacate his Level 6 felony battery in the presence of a
      child conviction because it is the later listed charge in his charging information. The State, on the other
      hand, argues that we should instruct the trial court to vacate the Level 6 felony criminal recklessness
      conviction because the legislature has passed “special protection for battery victims” by allowing the State to
      charge a person with an enhanced level of battery based on a prior conviction. (State’s Br. 7).



      Court of Appeals of Indiana | Opinion 49A02-1601-CR-41] | July 29, 2016                             Page 5 of 8
              this determination itself, being mindful of the penal consequences
              that the trial court found appropriate.

      Richardson v. State, 717 N.E.2d 32, 54 (Ind. 1999) (citation omitted). The

      Richardson Court explained that when both convictions cannot stand, an

      appellate court should “vacate the conviction with the less severe penal

      consequences[.]” Id.


[8]   Here, Owens’s two convictions at issue are both Level 6 felonies, and the trial

      court entered the same two (2) year suspended sentence for each. The parties

      do not dispute that reducing the convictions to a less serious form will not cure

      the double jeopardy violation. The parties, however, do not discuss the fact

      that the trial court entered a domestic violence determination pursuant to

      INDIANA CODE § 35-38-1-7.7.


[9]   INDIANA CODE § 35-38-1-7.7 requires a trial court to determine, at sentencing,

      whether a person has committed a crime of domestic violence. INDIANA CODE

      § 35-31.5-2-78 defines a crime of domestic violence as follows:

              “Crime of domestic violence” . . . means an offense or the
              attempt to commit an offense that:

              (1) has as an element the:

                       (A) use of physical force; or

                       (B) threatened use of a deadly weapon; and

              (2) is committed against a:

                       (A) current or former spouse, parent, or guardian of the
                       defendant;

      Court of Appeals of Indiana | Opinion 49A02-1601-CR-41] | July 29, 2016     Page 6 of 8
                         (B) person with whom the defendant shared a child in
                         common;

                         (C) person who was cohabiting with or had cohabited with
                         the defendant as a spouse, parent, or guardian; or

                         (D) person who was or had been similarly situated to a
                         spouse, parent, or guardian of the defendant.

[10]   At sentencing, the trial court entered a domestic violence determination, which

       was apparently based on Owens’s battery conviction, and informed Owens that

       he was, therefore, prohibited from possessing a firearm and ammunition. Thus,

       Owens’s Level 6 felony battery conviction has a more severe penal consequence

       than his Level 6 felony criminal recklessness conviction. 5 Based on the

       undisputed double jeopardy violation and “being mindful of the penal

       consequences that the trial court found appropriate” in this case, we, therefore,

       reverse Owens’s conviction for Level 6 felony criminal recklessness conviction

       and remand to the trial court to vacate this conviction. See Richardson, 717

       N.E.2d at 54 (explaining that when determining which conviction must be

       vacated upon a double jeopardy violation, our Court should be “mindful of the

       penal consequences that the trial court found appropriate” and should vacate

       the conviction with the less severe penal consequence).




       5
         We recognize that our Indiana Supreme Court has determined that the domestic violence determination
       statute, INDIANA CODE § 35-38-1-7.7, is “nonpunitive” for the purposes of a Sixth Amendment right to jury
       trial under Blakely v. Washington, 542 U.S. 296 (2004), reh’g denied. See Hitch v. State, 51 N.E.3d 216, 225 (Ind.
       2016).

       Court of Appeals of Indiana | Opinion 49A02-1601-CR-41] | July 29, 2016                               Page 7 of 8
[11]   Reversed and remanded with instructions.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1601-CR-41] | July 29, 2016   Page 8 of 8
