MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                    FILED
this Memorandum Decision shall not be                          Sep 21 2016, 8:35 am

regarded as precedent or cited before any                           CLERK
                                                                Indiana Supreme Court
court except for the purpose of establishing                       Court of Appeals
                                                                     and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                       Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Donald C. Newlin,                                        September 21, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1603-CR-493
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Christina R.
Appellee-Plaintiff.                                      Klineman, Judge
                                                         The Honorable Marshelle
                                                         Broadwell, Commissioner
                                                         Trial Court Cause No.
                                                         49G17-1509-F5-34476



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-493 | September 21, 2016   Page 1 of 8
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Donald C. Newlin (Newlin), appeals his conviction for

      confinement, a Level 5 felony, Ind. Code § 35-42-3-3(a); battery with moderate

      bodily injury, a Level 6 felony, I.C. § 35-42-2-1(b)(1); and domestic battery, as a

      Class A misdemeanor, I.C. § 35-42-2-1.3(a).


[2]   We reverse and remand with instructions.


                                                     ISSUE

[3]   Newlin raises one issue on appeal, which we restate as follows: Whether his

      conviction for criminal confinement and battery with moderate bodily injury

      violated Indiana’s prohibition against double jeopardy.


                           FACTS AND PROCEDURAL HISTORY

[4]   In September 2015, Newlin and Virginia Suter (Suter) had been in a romantic

      relationship for approximately six months, and had been living together with

      Suter’s thirteen-month-old son in Suter’s residence for the past month. On

      September 27, 2015, Suter and her son returned home from a trip to the park at

      around 6:00 p.m. Newlin came home about half an hour later; he was

      intoxicated. He wanted to talk about moving out of Suter’s home, which had

      been an ongoing conversation between the couple. This discussion continued

      until Suter’s son went to bed around 9:30 p.m. After Suter had put her son to

      bed, Newlin started following Suter around the house. Because she “had a

      feeling that something bad was going to happen,” Suter hid her cell phone in


      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-493 | September 21, 2016   Page 2 of 8
      the trash can in the master bathroom. (Transcript pp. 29-30). The conversation

      became “heated” and Suter went into the master bedroom, locked the door and

      then went into the bathroom and locked the door. (Tr. p. 30). A little later,

      Suter heard a crash coming from the bedroom door. Not wanting to incur more

      property damage after Newlin had kicked in the bedroom door, Suter unlocked

      the bathroom door and exited. Newlin, who had entered the bedroom, spat on

      Suter and attempted to grab her arms. In an attempt to throw her arms away

      from Newlin’s grasp, Suter hit Newlin in the mouth. Newlin responded, “[I]t’s

      on bitch.” (Tr. p. 31).


[5]   Newlin grabbed Suter and pushed her backwards into the bathroom. Suter

      pulled down a towel rack and Newlin pushed her into the bathtub. Falling

      backwards, Suter grabbed Newlin’s shirt and pulled him into the bathtub with

      her. They were face to face with Newlin on top of Suter.


[6]   After Newlin got up out of the bathtub, Suter rolled onto her stomach and

      pushed herself out of the bathtub. When she stood up, Newlin grabbed her by

      the shoulders and pushed her down to the floor. As Suter lay on her back,

      facing the ceiling, Newlin “put all his weight on [her] face with his foot,”

      causing her “[e]xtreme pain.” (Tr. p. 34). Newlin picked up his foot and

      stomped on her face. Suter suffered a scratch, a large bruise across her nose and

      left side of her face, and discovered that her nose was bleeding. When Newlin

      released his weight off of Suter, she was able to roll over on her stomach and

      started to get up. Newlin then pushed her back down with his foot on the back

      of her head, causing a “very large” “goose egg” to form. (Tr. p. 36). He then

      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-493 | September 21, 2016   Page 3 of 8
      stomped on the back of Suter’s head as he had done on her face. Eventually,

      Suter managed to get up onto her knees and grab a towel to try to stop her nose

      bleed. While she was kneeling, Newlin turned toward her and kicked Suter

      three to four times in the buttocks. The resulting bruise was approximately ten

      inches round and “extremely painful.” (Tr. p. 37).


[7]   Despite her pain, Suter wanted to see “how bad he [had] injured [her] nose,”

      but Newlin told her that “it didn’t matter what [her] face look[ed] like cause he

      was going to kill [her] anyway.” (Tr. p. 37). Newlin continued blocking the

      bathroom doorway and would not let Suter exit. In an effort to calm Newlin

      down, Suter changed the subject to needing to fix the towel bar. Newlin

      allowed Suter to go to the garage, while he remained beside her, to get a

      screwdriver to make the repair.


[8]   At that moment, the alarm on Suter’s phone, which was in the bathroom trash

      can, went off. After Suter explained that it was a reminder to pay the water bill,

      Newlin allowed Suter to go to the kitchen to pay the water bill by phone.

      Newlin followed her and was pacing back and forth ranting “about something.”

      (Tr. p. 40). When she had paid the bill, Suter placed the phone in her back

      pocket and persuaded Newlin to take the dogs outside while she went in the

      garage to get their dog food. When Suter was in the garage, she texted “911” to

      her son’s father and put the phone in the dog food bag. (Tr. p. 40).


[9]   Approximately one and a half hours later, two officers with the Indianapolis

      Metropolitan Police Department arrived. Newlin opened the door and assured


      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-493 | September 21, 2016   Page 4 of 8
       them everything was fine. Newlin allowed the officers to enter the house.

       While one officer took Newlin outside, the other officer spoke with Suter. Suter

       had blood on her shirt, bruising on her face and arms, dried blood on the inside

       of her nose, and a hematoma on the back of her head. Newlin denied anything

       had happened.


[10]   On September 30, 2015, the State filed an Information, charging Newlin, as

       amended, with criminal confinement, a Level 5 felony; battery with moderate

       bodily injury, a Level 6 felony; and domestic battery as a Class A misdemeanor,

       which was elevated to a Level 6 felony based on a prior domestic battery

       conviction. On December 10, 2015, a jury trial was conducted. Prior to the

       start of the trial, the State dismissed the domestic battery enhancement based on

       a prior domestic battery conviction. At the close of the evidence, the jury found

       Newlin guilty as charged. On January 7, 2016, the trial court sentenced Newlin

       to three years executed for criminal confinement, 365 days for battery with

       moderate bodily injury, and 365 days for domestic battery as a Class A

       misdemeanor. The trial court ordered the sentences to run concurrently.


[11]   Newlin now appeals. Additional facts will be provided as necessary.


                                    DISCUSSION AND DECISION


[12]   Newlin contends that the trial court violated Indiana’s prohibition against

       double jeopardy by imposing a conviction for both criminal confinement and

       battery with moderate bodily injury even though there was a reasonable



       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-493 | September 21, 2016   Page 5 of 8
       probability that the jury relied on the same actual evidence to convict him of

       both offenses.


[13]   The Double Jeopardy Clause of the Indiana Constitution provides in part: “No

       person shall be put in jeopardy twice of the same offense.” Ind. Const. art. 1, §

       14. Two or more 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.” Sloan v. State, 947 N.E.2d

       917, 924 (Ind. 2011) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind.

       1999)). Newlin’s argument rests on the actual-evidence test: “dual convictions

       cannot stand if a defendant ‘demonstrate[s] a reasonable possibility that the

       evidentiary facts used by the fact-finder to establish the elements of one offense

       may also have been used to establish the essential elements of a second

       challenged offense.” Id. (quoting Wise v. State, 719 N.E.2d 1192, 1201 (Ind.

       1999)). However, there is no double jeopardy violation “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.” Id

       (quoting Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)). Application of the

       actual-evidence test requires a reviewing court to look at the evidence presented

       at trial and decide whether each challenged offense was established by separate,

       distinct facts. Id.


[14]   Newlin argues—and the State agrees—that his conviction for criminal

       confinement and battery with moderate bodily injury are both based on the

       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-493 | September 21, 2016   Page 6 of 8
same injury and thus violate the same evidence test of the double jeopardy

clause. The charging information for Level 5 criminal confinement stated, in

pertinent part, “[Newlin] did knowingly confine [Suter] without the consent of

[Suter], said act resulting in bodily injury to [Suter], to wit: pain and/or

bruising to [Suter].” (Appellant’s App. Vol. II, p. 42). Likewise, the charging

information for Level 6 felony battery resulting in moderate bodily injury

stated, in pertinent part, “[Newlin] did knowingly or intentionally touch [Suter]

in a rude, insolent, or angry manner, resulting in moderate bodily injury to the

other person, specifically moderate pain and/or bruising and/or temporal loss

of full range of motion in arm.” (Appellant’s App. Vol. II, p. 42). In its closing

argument, the State used the same injuries to support both convictions.

Therefore, Newlin and the State conclude that there is a reasonable probability

that the jury relied on the same evidence to find the essential elements of

confinement and battery with moderate bodily injury. We agree. Thus, we

reverse and remand to the trial court with instruction to vacate Newlin’s

conviction for battery with moderate bodily injury, a Level 6 felony. 1


                                         CONCLUSION




1
 Because Newlin was sentenced to concurrent sentences, his aggregate sentence is not affected by the
vacation of his battery conviction. Accordingly, no sentencing hearing must be conducted.

Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-493 | September 21, 2016         Page 7 of 8
[15]   Based on the foregoing, we conclude that the trial court violated Indiana’s

       prohibition against double jeopardy and order the trial court to vacate Newlin’s

       conviction for battery with moderate bodily injury, a Level 6 felony.


[16]   Reversed and remanded with instructions.


[17]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-493 | September 21, 2016   Page 8 of 8
