                                                                              FILED
                                                                         Oct 30 2017, 10:18 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Ronald J. Moore                                            Curtis T. Hill, Jr.
      The Moore Law Firm, LLC                                    Attorney General of Indiana
      Richmond, Indiana
                                                                 Lyubov Gore
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Kevin Henson,                                              October 30, 2017
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 89A01-1705-CR-972
              v.                                                 Appeal from the Wayne Superior
                                                                 Court
      State of Indiana,                                          The Honorable Charles K. Todd,
      Appellee-Plaintiff.                                        Jr., Judge
                                                                 Trial Court Cause No.
                                                                 89D01-1411-FC-93



      Najam, Judge.


                                        Statement of the Case
[1]   Kevin Henson appeals his convictions following a jury trial for three counts of

      battery, as Class C felonies; four counts of criminal recklessness, as Class D

      felonies; criminal mischief, as a Class D felony; and operating a vehicle while

      Court of Appeals of Indiana | Opinion 89A01-1705-CR-972 | October 30, 2017                  Page 1 of 15
      intoxicated, as a Class C misdemeanor. Henson presents three issues for our

      review:


              1.       Whether the trial court violated his right under Article 1,
                       Section 14 of the Indiana Constitution to be free from
                       double jeopardy.

              2.       Whether the State presented sufficient evidence to support
                       seven of his convictions.

              3.       Whether his sentence is inappropriate in light of the nature
                       of the offenses and his character.


      We affirm in part, reverse in part, and remand with instructions.


                                  Facts and Procedural History
[2]   Shortly after midnight on March 9, 2014, Henson, his son Stephen Daniel

      Henson (“Daniel”), and Charles Patterson II drank alcohol together at an

      apartment in Richmond. Throughout the night, Henson and Daniel engaged in

      a heated argument. At approximately 1:00 a.m., the three left the apartment in

      order to buy cocaine from Daniel’s cousin. Henson drove Daniel’s Honda

      Accord with Patterson in the front passenger seat and Daniel in the back seat

      behind Henson. Henson and Daniel continued to argue as they were in the car.


[3]   As Henson turned southbound onto Chester Boulevard, he “pressed the [gas]

      pedal all the way down to the floor” and sped down the street. Tr. Vol. 2 at

      139. Patterson asked Henson to stop the car. In fact, Patterson “pleaded for

      [his] life for him to stop the car to let [him] out[,]” but Henson ignored him. Id.


      Court of Appeals of Indiana | Opinion 89A01-1705-CR-972 | October 30, 2017     Page 2 of 15
      at 165. At one point, Daniel told Henson that he hated him and called him a

      “b****.” Id. at 141. In response, Henson said, “‘I’m a b[****], well, watch

      this[,]’ and he jerked the wheel . . . straight to the left . . . clear across all lanes,

      directly into [a] Speedway [gas station,] and he continued to gun it.” Id.

      Henson was driving the car at approximately sixty miles per hour when he

      drove over a curb and straight into some gas pumps.


[4]   As the car crashed into the gas pumps, which caused explosions, Daniel and

      Patterson were both ejected from the car and hit the ground. The car flipped

      onto its roof and slid across the pavement until it came to rest. Scotty Adams, a

      Speedway customer who had witnessed the crash, found Henson unconscious

      and “trapped” in the car in an “upside down” position. Id. at 96. Adams could

      not get Henson out of the car, and Adams sought help from a responding police

      officer. Ultimately, Richmond Police Department Officer Alecia Tonuc

      climbed into the car and extricated Henson.1 Medical personnel arrived and

      assisted Daniel, Patterson, and Henson before transporting them to the hospital.

      Henson’s blood alcohol content (“BAC”) was .22.


[5]   As a result of the crash, Patterson sustained severe injuries to his head and face

      that required reconstructive facial surgery, which included having metal plates

      installed in the right side of his face. Daniel sustained injuries to his head,

      shoulder, and knees and required three to four weeks to recover from his



      1
       Henson’s legs were stuck “underneath the dash . . . underneath the steering wheel.” Tr. Vol. 3 at 51.
      Officer Tonuc found a bottle of Smirnoff vodka between Henson’s legs.

      Court of Appeals of Indiana | Opinion 89A01-1705-CR-972 | October 30, 2017                      Page 3 of 15
      injuries. Jasmine Simmons, another customer at the gas station who witnessed

      the crash and ensuing explosions, sustained burns to her left thigh when she

      removed her three-year-old son from her car, which she had parked at a nearby

      pump.


[6]   The State charged Henson with fourteen felonies and two misdemeanors. A

      jury found Henson guilty of twelve felonies.2 The trial court entered judgment

      of conviction on the following counts: three counts of battery, as Class C

      felonies (Counts I, II, and III); four counts of criminal recklessness, as Class D

      felonies (Counts V, VII, VIII, and IX); criminal mischief, as a Class D felony

      (Count X); and operating a vehicle while intoxicated, as a Class C

      misdemeanor (Count XI). And the trial court sentenced Henson to an

      aggregate term of nine years and sixty days, with one and one-half years

      suspended to probation. This appeal ensued.


                                        Discussion and Decision
                                          Issue One: Double Jeopardy

[7]   Henson first contends that the trial court violated his right under Article 1,

      Section 14 of the Indiana Constitution to be free from double jeopardy when

      the court entered its judgment of conviction against him on the two counts of

      battery against Patterson and on the battery and criminal recklessness counts




      2
          The State dismissed two of the felony counts and the two misdemeanor counts prior to trial.


      Court of Appeals of Indiana | Opinion 89A01-1705-CR-972 | October 30, 2017                        Page 4 of 15
      involving Daniel as the victim. We review alleged double jeopardy violations

      de novo. Berg v. State, 45 N.E.3d 506, 509 (Ind. Ct. App. 2015).


[8]   Article 1, Section 14 of the Indiana Constitution prohibits double jeopardy,

      providing that “[n]o person shall be put in jeopardy twice for the same offense.”

      As the Indiana Supreme Court has explained:


              In Richardson v. State, 717 N.E.2d 32 (Ind. 1999)[,] this 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. 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. at 53. 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. The actual
              evidence test is applied to all the elements of both offenses. “In
              other words . . . the Indiana Double Jeopardy Clause is not
              violated when 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.” Spivey
              v. State, 761 N.E.2d 831, 833 (Ind. 2002).

              Our precedents “instruct that a ‘reasonable possibility’ that the
              jury used the same facts to reach two convictions requires
              substantially more than a logical possibility.” Lee v. State, 892
              N.E.2d 1231, 1236 (Ind. 2008) (citing cases). The reasonable
              possibility standard “fairly implements the protections of the
              Indiana Double Jeopardy Clause and also permits convictions for

      Court of Appeals of Indiana | Opinion 89A01-1705-CR-972 | October 30, 2017           Page 5 of 15
              multiple offenses committed in a protracted criminal episode
              when the case is prosecuted in a manner that insures that
              multiple guilty verdicts are not based on the same evidentiary
              facts.” Richardson, 717 N.E.2d at 53 n. 46. The existence of a
              “‘reasonable possibility’ turns on a practical assessment of
              whether the [fact finder] may have latched on to exactly the same
              facts for both convictions.” Lee, 892 N.E.2d at 1236. We
              evaluate the evidence from the jury’s perspective and may
              consider the charging information, jury instructions, and
              arguments of counsel. Id. at 1234.


      Garrett v. State, 992 N.E.2d 710, 719-20 (Ind. 2013) (emphasis added; last

      alteration original). Thus, under Spivey, in order for there to be a double

      jeopardy violation under the actual-evidence test the evidentiary footprint for all

      the elements required to prove one offense must be the same evidentiary

      footprint as that required to prove all the elements of another offense. See 761

      N.E.2d at 833.


[9]   Here, according to the State’s charging information, which tracked the relevant

      statutes at issue, Henson committed two counts of battery, as Class C felonies,

      when he


              [Count I] knowingly or intentionally touch[ed] Charles Patterson
              in a rude, insolent, or angry manner, to-wit: Kevin L. Henson
              drove a motor vehicle at a high rate of speed into gas pumps on
              the Speedway lot while Charles Patterson was an occupant of
              said motor vehicle, with said touching resulting in serious bodily
              injury to Charles Patterson, to-wit: unconsciousness, head
              laceration, facial fractures and/or extreme pain, [and] . . .

              [Count II] knowingly or intentionally touch[ed] Charles
              Patterson in a rude, insolent, or angry manner, to-wit: Kevin L.

      Court of Appeals of Indiana | Opinion 89A01-1705-CR-972 | October 30, 2017   Page 6 of 15
               Henson drove a motor vehicle at a high rate of speed into gas
               pumps on the Speedway lot while Charles Patterson was an
               occupant of said motor vehicle, with said touching being
               committed by means of a deadly weapon, to-wit: a moving
               motor vehicle[.]


       Appellant’s App. Vol. 2 at 17; see Ind. Code § 35-42-2-1(a)(3) (2013).


[10]   Henson contends, and the State agrees, that his convictions under both of those

       two counts violate the prohibition against double jeopardy. In particular, as the

       State points out,


               [Henson] was convicted of two Class C felony batteries against
               [Patterson] for his one act of driving the vehicle at a high rate of
               speed into gas pumps. The factual allegations in the charging
               information for each of [Henson]’s offenses were based on this
               single act. The evidence presented at trial showed that [Henson]
               used the vehicle as a deadly weapon by driving it into the gas
               pumps one time, resulting in serious bodily injury to [Patterson]
               when he was ejected from the vehicle. The State did not argue
               any additional acts that may have supported either of the battery
               convictions at trial, and the jury was not instructed on any
               additional acts.

               Given the charging information, the jury instructions, the
               evidence, and the State’s opening and closing arguments, there is
               a reasonable possibility that the evidentiary facts used by the jury
               to establish the essential elements of one Class C felony battery
               may also have been used to establish the essential elements of the
               second Class C felony battery.


       Appellee’s Br. at 28 (citations omitted).




       Court of Appeals of Indiana | Opinion 89A01-1705-CR-972 | October 30, 2017     Page 7 of 15
[11]   We agree that the State’s evidence establishing all of the essential elements of

       each count of battery against Patterson was the same. See Spivey, 761 N.E.2d at

       833. In other words, the evidentiary footprint underlying both Counts I and II

       was identical. Accordingly, there is a reasonable possibility that the jury

       “latched on to exactly the same facts for both convictions.” Lee, 892 N.E.2d at

       1236. We reverse Henson’s conviction for battery, as a Class C felony, under

       Count II and remand with instructions for the trial court to vacate that

       conviction.


[12]   Likewise, Henson contends, and the State agrees, that his convictions on Count

       III, for battery, as a Class C felony, and Count V, for criminal recklessness, as a

       Class D felony, both of which allege injuries to Daniel, violate the prohibition

       against double jeopardy. To prove battery, as a Class C felony, as alleged in

       Count III, the State was required to show that Henson knowingly or

       intentionally touched Daniel in a rude, insolent, or angry manner by means of a

       deadly weapon, namely, a moving motor vehicle. See I.C. § 35-42-2-1(a)(3).

       And to prove criminal recklessness, as a Class D felony, as alleged in Count V,

       the State was required to show that Henson recklessly, knowingly, or

       intentionally performed an act that created a substantial risk of bodily injury to

       Daniel and that he performed that act while armed with a deadly weapon,

       namely, a moving motor vehicle. See I.C. § 35-42-2-2(c)(2)(A).


[13]   The State acknowledges that, at trial, it presented the same evidence, namely,

       Henson’s single act of driving the car into the gas pumps, to prove the essential

       elements of both Counts III and V. Indeed, the State concedes that it “did not

       Court of Appeals of Indiana | Opinion 89A01-1705-CR-972 | October 30, 2017   Page 8 of 15
       argue any additional acts that may have supported either of the convictions at

       trial, and the jury was not instructed on any additional acts.” Appellee’s Br. at

       29. We again agree. Accordingly, there is a reasonable possibility that the jury

       “latched on to exactly the same facts for both convictions.” Lee, 892 N.E.2d at

       1236. We reverse Henson’s conviction for criminal recklessness, as a Class D

       felony, under Count V and remand with instructions for the trial court to vacate

       that conviction.


                                  Issue Two: Sufficiency of the Evidence

[14]   Henson contends that the State presented insufficient evidence to prove seven

       of his convictions. Because we reverse two of the challenged convictions, we

       need only address his argument with respect to his convictions for two counts of

       battery, as Class C felonies (for injuries sustained by Daniel and Patterson) and

       three counts of criminal recklessness, as Class D felonies (for risk of injuries to

       bystanders at the gas station). In reviewing the sufficiency of the evidence, we

       consider only the evidence and reasonable inferences most favorable to the

       conviction, neither reweighing the evidence nor reassessing witness credibility.

       Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016). We will affirm the judgment

       unless no reasonable fact-finder could find the defendant guilty. Id.


[15]   To prove Count I, battery, as a Class C felony, the State was required to show

       that Henson knowingly or intentionally touched Patterson in a rude, insolent,

       or angry manner, which resulted in serious bodily injury to Patterson. See I.C. §

       35-42-2-1(a)(3). To prove Count III, battery, as a Class C felony, the State was

       required to show that Henson knowingly or intentionally touched Daniel in a
       Court of Appeals of Indiana | Opinion 89A01-1705-CR-972 | October 30, 2017   Page 9 of 15
       rude, insolent, or angry manner and by means of a deadly weapon, namely, a

       moving motor vehicle. See id. To prove the criminal recklessness counts, the

       State was required to show that Henson recklessly, knowingly, or intentionally

       performed an act that created a substantial risk of bodily injury to Simmons,

       Simmons’ son, and Brandon Hine.3 See I.C. § 35-42-2-2(c)(2)(A). A

       defendant’s mental state is ordinarily a matter of circumstantial proof and may

       be “inferred from the defendant’s conduct and the natural and usual sequence

       to which such conduct reasonably points.” Boling v. State, 982 N.E.2d 1055,

       1057 (Ind. Ct. App. 2013).


[16]   Henson asserts that there is no evidence that he touched either Daniel or

       Patterson. And he maintains that the State did not prove the mens rea elements

       of each offense. In particular, he contends that there is no evidence that he had

       the specific intent to use the car as a deadly weapon. We address each

       contention in turn.

                                                       Touching


[17]   As our Supreme Court has stated, “[w]hile battery requires [a] defendant to

       have intended to touch another person, [he] need not personally touch another

       person since battery may be committed by the unlawful touching by [the]

       defendant or by any other substance put in motion by [the] defendant.” Matthews v.

       State, 476 N.E.2d 847, 850 (Ind. 1985) (holding intent to touch satisfied where



       3
           Brandon Hine was another Speedway customer at the time of the offenses.


       Court of Appeals of Indiana | Opinion 89A01-1705-CR-972 | October 30, 2017    Page 10 of 15
       defendant fired bullets at officer) (emphasis added). Here, the State presented

       ample evidence from which the jury could infer that Henson intentionally drove

       his car at a high rate of speed directly into gas pumps. That collision caused

       Daniel and Patterson to be ejected from the car and thrown onto the pavement,

       which resulted in their injuries. To the extent Henson contends that the

       evidence is insufficient to show that he was driving the car at the time, that is a

       request that we reweigh the evidence, which we cannot do. The State presented

       evidence supporting a reasonable inference that Henson intentionally drove the

       car into the gas pumps, and we hold that that evidence is sufficient to prove that

       he knowingly or intentionally touched Daniel and Patterson in an angry

       manner.

                                              Car as Deadly Weapon


[18]   Henson “acknowledges that motor vehicles can be construed as deadly

       weapons when the circumstances illustrate they are intended to be used as

       such.” Appellant’s Br. at 25. But Henson maintains that our Supreme Court

       “requires a specific intent to use the vehicle as a deadly weapon.” Id. at 26 (citing

       Defries v. State, 342 N.E.2d 622, 626 (Ind. 1976)) (emphasis added). And

       Henson asserts that there is no evidence that he had the specific intent to use the

       car as a deadly weapon, “nor could it be inferred as the jury was not instructed

       as such.” Id. We cannot agree.


[19]   As the State points out, the trial court instructed the jury in relevant part as

       follows:


       Court of Appeals of Indiana | Opinion 89A01-1705-CR-972 | October 30, 2017   Page 11 of 15
               The term deadly weapon is defined by law as meaning a weapon,
               device, taser, as defined by Indiana Code 35-47-8-3, or electronic
               stun weapon, as defined by . . . Indiana Code 35-47-8-1,
               equipment, chemical substance, or other material that in the
               manner it is used, or could ordinarily be used, is readily capable
               of causing serious bodily injury. A motor vehicle may be a deadly
               weapon if used or intended to be used in a manner readily capable of
               causing serious bodily harm.


       Tr. Vol. 3 at 136 (emphasis added).


[20]   And the evidence supports a reasonable inference that Henson intended to use

       the car as a deadly weapon. In particular, in response to Daniel calling him a

       “b****,” Henson said, “‘I’m a b[****], well, watch this[,]’ and he jerked the

       wheel . . . straight to the left . . . clear across all lanes, directly into [a]

       Speedway [gas station,] and he continued to gun it.” Tr. Vol. 2 at 141. Henson

       was driving the car at approximately sixty miles per hour when he drove over a

       curb and straight into the gas pumps. The jury could have reasonably inferred

       from that conduct that Henson intended to cause serious bodily harm to Daniel,

       Patterson, and Speedway customers when he crashed the car. The evidence is

       sufficient to support Henson’s conviction on Count III, battery against Daniel

       with a deadly weapon, as well as his convictions for criminal recklessness.


[21]   Still, Henson contends that the trial court committed fundamental error when it

       did not sua sponte instruct the jury “that the mens rea element applies to the use

       of the vehicle as a deadly weapon.” Appellant’s Br. at 27. However, in support

       of that contention, Henson asserts, again, that “the jury must be informed that

       [it] must find ‘that the vehicle can be a deadly weapon if used or intended to be

       Court of Appeals of Indiana | Opinion 89A01-1705-CR-972 | October 30, 2017         Page 12 of 15
       used in [such] a manner.’” Id. (quoting DeWhitt v. State, 829 N.E.2d 1055, 1064

       (Ind. Ct. App. 2005) (emphasis added)). But, as the State points out, the trial

       court did so instruct the jury. Henson has not demonstrated error, let alone

       fundamental error.


                                             Issue Three: Sentence

[22]   Finally, Henson contends that his sentence is inappropriate in light of the

       nature of the offenses and his character. As we have explained:


               Indiana Appellate Rule 7(B) permits an Indiana appellate court
               to “revise a sentence authorized by statute if, after due
               consideration of the trial court’s decision, the Court finds that the
               sentence is inappropriate in light of the nature of the offense and
               the character of the offender.” We assess the trial court’s
               recognition or nonrecognition of aggravators and mitigators as an
               initial guide to determining whether the sentence imposed was
               inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
               App. 2006). The principal role of appellate review is to “leaven
               the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). A defendant must persuade the appellate court that his or
               her sentence has met the inappropriateness standard of review.
               Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).


       Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).


[23]   Here, the trial court identified the following aggravating factors when it

       imposed its sentence: Henson’s criminal history, which included three prior

       felonies, eight misdemeanors, and prior probation violations; one of the victims

       was three years old; Henson had a pending criminal case at the time he

       committed these offenses; and the offenses “were egr[e]gious with multiple

       Court of Appeals of Indiana | Opinion 89A01-1705-CR-972 | October 30, 2017   Page 13 of 15
       victims and numerous parties being subject to potential danger other than the

       victims of the offenses, including employee(s) of Speedway, law enforcement,

       firefighters, and others based on [Henson]’s intentional acts.” Appellant’s App.

       Vol. 4 at 129-30. The trial court identified the following mitigating

       circumstances: several letters of support indicating “a caring and helping side”

       to Henson; Henson’s willingness to pay restitution to his victims; and his steady

       employment. The court found that the aggravators “significantly” outweighed

       the mitigators.


[24]   At the time of these offenses, the sentencing range for a Class C felony was two

       to eight years, with an advisory sentence of four years. I.C. § 35-50-2-6. And

       the sentencing range for a Class D felony was six months to three years, with an

       advisory sentence of one and one-half years. I.C. § 35-50-2-7. The trial court

       imposed concurrent six and one-half year sentences for the Class C felonies,

       concurrent two and one-half year sentences for the Class D felonies, and an

       additional sixty days for the Class C misdemeanor, with the sentences for each

       level of offense to run consecutively. Thus, the court imposed an aggregate

       term of nine years and sixty days, with one and one-half years suspended to

       probation.


[25]   Henson asserts that his sentence is inappropriate in light of the nature of the

       offenses because, while the victims’ injuries were significant and “cannot be

       minimized,” this was “a single act that occurred within moments.” Appellant’s

       Br. at 35-36. But Henson does not explain why the short duration of the act

       underlying his offenses warrants a revised sentence. Indeed, it was because

       Court of Appeals of Indiana | Opinion 89A01-1705-CR-972 | October 30, 2017   Page 14 of 15
       Henson was driving so fast that the impact and potential impact on bystanders

       was so great. Further, Henson’s BAC was .22 and he intentionally drove into

       the gas pumps in the course of an argument with his son. We cannot say that

       Henson’s sentence is inappropriate in light of the nature of the offenses, which

       caused substantial injuries to multiple victims.


[26]   Henson maintains that his sentence is inappropriate in light of his character.

       Henson points out that he: “was a low risk to reoffend”; was a “valuable

       employee” and a “caring individual”; and offered to make restitution.

       Appellant’s Br. at 37. But Henson’s long criminal history, which began in 1986

       and includes three felonies, eight misdemeanors and multiple probation

       violations, reflects his poor character. Indeed, Henson had a warrant out for his

       arrest on a pending criminal case at the time he committed these offenses.

       Finally, Henson has a history of alcohol abuse, and he was on his way to buy

       cocaine at the time of these offenses, yet he has never sought substance abuse

       treatment. We cannot say that Henson’s sentence is inappropriate in light of

       his character.


[27]   Affirmed in part, reversed in part, and remanded with instructions.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 89A01-1705-CR-972 | October 30, 2017   Page 15 of 15
