MEMORANDUM DECISION
                                                                          Apr 07 2015, 10:01 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
Jeffry G. Price                                           Gregory F. Zoeller
Peru, Indiana                                             Attorney General of Indiana
                                                          Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jon Jerricco Haupert,                                     April 7, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          85A02-1407-CR-510
        v.                                                Appeal from the Wabash Superior
                                                          Court.

State of Indiana,                                         The Honorable Christopher M. Goff,
                                                          Judge
Appellee-Plaintiff.
                                                          Cause No. 85D01-1402-FD-124




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision | 85A02-1407-CR-510 | April 7, 2015         Page 1 of 11
                                    STATEMENT OF THE CASE

[1]   Appellant-Defendant, Jon Jerricco Haupert (Haupert), appeals his conviction of

      strangulation, a Class D felony, Ind. Code § 35-42-2-9(b) (2013); and battery

      resulting in bodily injury, a Class A misdemeanor, I.C. § 35-42-2-1(a)(1)(A)

      (2013).


[2]   We affirm but remand with instructions to correct a clerical irregularity.


                                                    ISSUES

[3]   Haupert raises two issues on appeal, which we restate as follows:

      (1) Whether Haupert’s conviction of both a Class D felony strangulation and a

      Class A misdemeanor battery violate his constitutional right against double

      jeopardy; and

      (2) Whether the trial court properly enhanced Haupert’s sentence rather than

      imposing a separate, consecutive sentence for his adjudication as a habitual

      offender.


                           FACTS AND PROCEDURAL HISTORY

[4]   Towards the end of January 2014, Haupert was arrested and incarcerated in the

      Wabash County Jail on charges unrelated to the current proceedings. He was

      housed in Cell Block C-1, which consists of seven cells and a common area

      known as the “Day Room.” (Tr. p. 26). The Day Room contains a television

      and tables and is primarily used for the inmates to congregate during the day.


      Court of Appeals of Indiana | Memorandum Decision | 85A02-1407-CR-510 | April 7, 2015   Page 2 of 11
      Because the cells in Cell Block C-1 could accommodate only fourteen inmates,

      there were a few additional bunk beds in the Day Room in the event of

      overcrowding. At that time, fifteen inmates were assigned to Cell Block C-1.

      The jail’s policy requires that all of the cell spaces must be filled before the Day

      Room beds may be utilized at night. Thus, only one inmate in Cell Block C-

      1—Charles D. Smith (Smith)—had been sleeping in a Day Room bunk.


[5]   On February 2, 2014, shortly before 10:00 p.m., Haupert informed Smith that

      he wanted to sleep in the Day Room, so Smith would need to relocate to a cell.

      Smith refused, explaining that he had “been there the longest” and “had no

      plans to take a cell that night.” (Tr. p. 27). Haupert threatened that they could

      “figure this out the easy way or the hard way[,]” but Smith was not persuaded.

      (Tr. p. 83). Angered by Smith’s resistance, Haupert went into his cell and

      changed from his personal gray sweatpants into a blue pair that had been issued

      by the jail. According to Haupert, “blood don’t show up as easy on the, uh,

      dark blue” and “if I was gonna ruin something it would have been State issue

      where it didn’t cost me.” (Tr. p. 84). Haupert then went into the cell directly

      across from Smith’s bunk because he was aware that this particular cell was in

      “a blind spot” of the jail’s surveillance cameras. (Tr. p. 86). He “taunt[ed]

      [Smith] to come in there” with the intent to “physically assault him.” (Tr. pp.

      79, 81).


[6]   Smith, however, continued reading on his bunk, so Haupert rushed out of the

      cell and lunged at him. When Smith dodged to avoid being punched, Haupert

      grabbed him around the neck and yanked him off the bunk. With Smith

      Court of Appeals of Indiana | Memorandum Decision | 85A02-1407-CR-510 | April 7, 2015   Page 3 of 11
      secured in a headlock, Haupert dragged him toward the cell, but Smith grabbed

      onto the cell’s bars in an effort to avoid being pulled all the way in. Haupert

      tightened his grip on the headlock, inhibiting Smith’s ability to breathe, and

      also administered several blows to Smith’s rib cage with his knee. Smith

      managed to break free and ran across the Day Room to push the emergency

      button to summon a correctional officer.


[7]   Assistant Jail Commander Duane Coburn responded and escorted Smith out of

      Cell Block C-1. He contacted the Wabash County Sheriff’s Department, and

      Deputy Eric Ryggs (Deputy Ryggs) arrived to investigate. Deputy Ryggs first

      reviewed the surveillance footage and observed that Smith was “holding his left

      side” following the altercation. (Tr. p. 67). Deputy Ryggs subsequently met

      with Smith for an interview, at which point Smith “was still holding his left side

      and appeared to be in a lot of pain.” (Tr. p. 67). Deputy Ryggs took

      photographs of the red marks left on Smith’s neck as a result of the headlock.


[8]   On February 19, 2014, the State filed an Information, charging Haupert with

      Count I, strangulation, a Class D felony; and Count II, battery resulting in

      bodily injury, a Class A misdemeanor. On March 6, 2014, the State filed an

      Information alleging Haupert to be a habitual offender.


[9]   On June 11, 2014, the trial court conducted a bifurcated jury trial. At the close

      of the evidence, the jury returned a guilty verdict on both Counts. Thereafter,

      Haupert pled guilty to the habitual offender charge. The trial court entered a

      judgment of conviction on Counts I and II and adjudicated Haupert as a


      Court of Appeals of Indiana | Memorandum Decision | 85A02-1407-CR-510 | April 7, 2015   Page 4 of 11
       habitual offender. On July 7, 2014, the trial court held a sentencing hearing.

       On Count I, strangulation, the trial court imposed an executed sentence of five

       years, which included a three-year enhancement for the habitual offender

       adjudication. As to Count II, battery, the trial court ordered a concurrent one-

       year sentence.


[10]   Haupert now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                               I. Double Jeopardy

[11]   Haupert claims that his conviction of both strangulation and battery violates his

       constitutional right to be free from double jeopardy. The Double Jeopardy

       Clause of the Indiana Constitution provides that “[n]o person shall be put in

       jeopardy twice for the same offense.” IND. CONST. art. 1, § 14. The Indiana

       Supreme Court has determined that, for purposes of double jeopardy, two

       offenses are the same offense 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).

       On appeal, our court reviews de novo whether a defendant’s conviction violates

       the Double Jeopardy Clause. Goldsberry v. State, 821 N.E.2d 447, 458 (Ind. Ct.

       App. 2005).


[12]   In order to convict Haupert of strangulation, a Class D felony, the State had to

       establish that he,


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               in a rude, angry, or insolent manner, knowingly or intentionally:
               (1) applie[d] pressure to the throat or neck of another person; or
               (2) obstruct[ed] the nose or mouth of . . . another person;
               in a manner that impedes the normal breathing or the blood
               circulation of the other person.
[13]   I.C. § 35-42-2-9(b) (2013). On the other hand, proving that Haupert committed

       battery resulting in bodily injury, a Class A misdemeanor, required the State to

       demonstrate that he “knowingly or intentionally touche[d] another person in a

       rude, insolent, or angry manner,” which “result[ed] in bodily injury to any

       other person.” I.C. § 35-42-2-1(a)(1)(A) (2013). The crimes of strangulation

       and battery resulting in bodily injury “each contain an element not shared by

       the other.” Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2008). Thus, Haupert

       does not challenge his conviction under the statutory elements test; rather, he

       asserts that his conviction violates the “actual evidence test.” See id. at 1233-34.


[14]   Applying 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.” Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013).

       We will find a double jeopardy violation only if 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. There is no double

       jeopardy violation if “the evidentiary facts establishing the 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)). A “reasonable possibility” determination “turns on a practical

       Court of Appeals of Indiana | Memorandum Decision | 85A02-1407-CR-510 | April 7, 2015   Page 6 of 11
       assessment of whether the [fact finder] may have latched on to exactly the same

       facts for both convictions.” Id. (alteration in original) (quoting Lee, 892 N.E.2d

       at 1236). Our court must review “the evidence from the jury’s perspective and

       may consider the charging information, jury instructions, and arguments of

       counsel.” Id.


[15]   Haupert argues that the charging Information and jury instructions “simply

       quoted” the statutory language, and that the language defining the crimes of

       strangulation and battery are “almost identical.” (Appellant’s Br. p. 8).

       Haupert further asserts that the evidence supports a finding of battery resulting

       in bodily injury, but there is insufficient evidence to prove that he strangled

       Smith. As such, he posits that the jury improperly relied on the evidence that

       establishes battery to also convict him of strangulation. We initially note that

       Haupert’s argument of insufficient evidence based on Smith’s references to the

       conduct as a “headlock” rather than a “strangle” is nothing more than a request

       to reweigh evidence, which we decline to do. (Appellant’s Br. pp. 8-9).

       Furthermore, we disagree with Haupert’s actual evidence analysis for two

       reasons.


[16]   First, we acknowledge that Haupert is correct that the charging Information

       and the jury instructions do not explicitly distinguish that the headlock is the

       basis for the strangulation charge and that the rib injury is the basis for the

       battery charge. Instead, the Information and instructions clarify that the crime

       of strangulation requires proof that Haupert applied pressure to Smith’s throat

       or neck in a manner that impeded his normal breathing, whereas the crime of

       Court of Appeals of Indiana | Memorandum Decision | 85A02-1407-CR-510 | April 7, 2015   Page 7 of 11
       battery requires proof that Haupert touched Smith in a rude, insolent, or angry

       manner resulting in bodily injury. Here, the jury was presented with distinct

       evidence to independently support both offenses. By grabbing Smith in a

       headlock and applying pressure to his throat, whereby Smith was unable to

       breathe, Haupert completed the crime of strangulation. Beyond that, he

       committed battery by using his right knee to repeatedly strike the left side of

       Smith’s rib cage, resulting in “pain for a month and a half afterwards.” (Tr. p.

       31).


[17]   We are unpersuaded by Haupert’s contention that there is a reasonable

       possibility that the jury construed the headlock as the rude, insolent, or angry

       touching necessary to support a battery conviction. The jury was instructed to

       “consider all the instructions together.” (Appellant’s App. p. 131). Relating to

       the battery charge, the jury instruction defined “bodily injury” as “any

       impairment of physical condition, including physical pain.” (Appellant’s App.

       p. 136). Here, the bulk of the evidence demonstrating any type of “bodily

       injury” concentrated on the kneeing of Smith’s ribs and the amount of pain it

       caused. (Appellant’s App. p. 136). Deputy Ryggs testified that he observed

       Smith clutching his left side in the surveillance footage—which the jury also

       reviewed—as well as during the interview following the incident. Smith

       testified that the level of pain to his ribs, “[o]n a scale from 1 to 10, I would say

       it was a 7, right after it happened, 10 being I’m ready to die.” (Tr. p. 31).

       Accordingly, in finding Haupert guilty of battery, we find it likely that the jury

       relied on the distinct fact that Smith sustained bodily injury as a result of being


       Court of Appeals of Indiana | Memorandum Decision | 85A02-1407-CR-510 | April 7, 2015   Page 8 of 11
       kneed in the ribs, notwithstanding the headlock. See Goldsberry, 821 N.E.2d at

       459 (“The appellant must show more than a remote or speculative possibility

       that the same facts were used.”).


[18]   Second, in its closing argument, the State summarized that “Mr. Haupert

       intended everything that you saw in that video. Everything he did to Mr.

       Smith. He was angry. He grabbed him. He kneed him. He strangled him. He

       cut off his airway.” (Tr. pp. 91-92). Although the State did not specify which

       evidence should be used to find Haupert guilty of each offense, it emphasized

       that Haupert committed several distinct acts in the course of the skirmish.

       Moreover, in the defense’s closing argument, Haupert’s counsel specifically

       identified “the evidence that was distinct to each crime.” Lee, 892 N.E.2d at

       1237. In particular, the defense clarified for the jury that

               the legislature sets up the elements of the crime of Battery. And that’s
               what they define Battery is. A rude or insolent touching causing
               injury. Causing pain. You saw the knee in the ribs. I certainly think
               that would hurt. Mr. Smith told ya it hurt and that seems logical. . . .
               Now he also used words like, well, my air was cut off when I grabbed
               the bar or he didn’t really know when his air was cut off. Now he also
               says he panicked, you know. . . . But in order to convict Mr. Haupert
               of Strangulation you need to be convinced that it wasn’t panic. . . . It
               was the fact that Mr. Haupert cut off, applied pressure and cut off his
               airflow. . . . Now, strangulation is, for someone to intend to strangle
               another person, I mean, that’s . . . above and beyond one to hit or
               strike. Strangulation is a much more intimate form of violence.
       (Tr. p. 94). As a practical matter, taking into consideration the charging

       Information, the jury instructions, the closing arguments, and the evidence

       itself, we do not find a “reasonable possibility” that the jury relied on the same


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       evidentiary facts to establish the essential elements of both strangulation and

       battery. Garrett, 992 N.E.2d at 719. Therefore, Haupert’s conviction does not

       violate the Indiana Double Jeopardy Clause.


                                       II. Habitual Offender Enhancement

[19]   Haupert also claims that “the language used by the trial court in the enhanced

       sentence is contrary to that required by applicable case law.” (Appellant’s Br.

       p. 10). In the Abstract of Judgment, the trial court indicated that Haupert was

       sentenced to three years for the habitual offender adjudication, which was to be

       served “consecutive” to his two-year sentence under Count I. (Appellant’s

       App. p. 10). According to Haupert, the trial court erred by imposing

       consecutive sentences instead of simply noting that Haupert had received a five-

       year enhanced sentence for his conviction of Class D felony strangulation.

       (Appellant’s Br. p. 11). 1


[20]   Our supreme court has previously established that the imposition of “a separate

       consecutive sentence” for a habitual offender adjudication “is an irregularity”

       because a “habitual offender conviction allows enhancement of a sentence for a

       substantive offense, not a separate sentence.” Hazzard v. State, 642 N.E.2d

       1368, 1371 (Ind. 1994) (citing Armstead v. State, 538 N.E.2d 943, 944 (Ind.

       1989)). In the present case, the trial court indicated during the sentencing




       1
         Having determined that Haupert’s conviction of Class D felony strangulation will not be vacated because
       there is no double jeopardy violation, we need not address Haupert’s assertion that “there is no predicate for
       the habitual offender enhancement.” (Appellant’s Br. p. 10).

       Court of Appeals of Indiana | Memorandum Decision | 85A02-1407-CR-510 | April 7, 2015             Page 10 of 11
       hearing that it would be imposing a consecutive sentence for the habitual

       offender adjudication, but the State reminded the court that it is considered “an

       enhanced sentence that is an additional fixed term” rather than “a consecutive

       sentence.” (Tr. p. 131). As a result, in its Sentencing Order, the trial court

       “enhanced [Haupert’s] sentence, as to [Count] I, by an additional [three] years

       imprisonment for a total sentence, as to [Count] I, of [five] years with none

       suspended.” (Appellant’s App. p. 12). It is therefore clear that the trial court

       ordered a properly enhanced sentence. However, we must remand with

       instructions for the trial court to correct the Abstract of Judgment to reflect that

       the habitual offender adjudication merits an enhancement to the sentence on

       Count I rather than a separate, consecutive sentence.


                                               CONCLUSION

[21]   Based on the foregoing, we conclude that Haupert’s conviction of strangulation,

       a Class D felony, and battery resulting in bodily injury, a Class A misdemeanor,

       does not violate Indiana’s Double Jeopardy Clause. We further conclude that

       the trial court imposed a properly enhanced sentence on Count I but

       erroneously indicated in the Abstract of Judgment that the enhancement was a

       separate, consecutive sentence.


[22]   Affirmed but remanded with instructions to correct a clerical irregularity.


[23]   Vaidik, C. J. and Baker, J. concur




       Court of Appeals of Indiana | Memorandum Decision | 85A02-1407-CR-510 | April 7, 2015   Page 11 of 11
