MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be
                                                                Sep 30 2016, 7:42 am
regarded as precedent or cited before any
court except for the purpose of establishing                         CLERK
                                                                 Indiana Supreme Court
the defense of res judicata, collateral                             Court of Appeals
                                                                      and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth Johnson                                             Gregory F. Zoeller
Patricia Caress McMath                                   Attorney General of Indiana
Marion County Public Defender Agency
                                                         Monika Prekopa Talbot
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Myron Tools,                                             September 30, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1512-CR-2073
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Marshelle Broadwell, Magistrate
                                                         Trial Court Cause No.
                                                         49G17-1508-F6-29908



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2073 | September 30, 2016   Page 1 of 22
[1]   Myron Tools (“Tools”) was convicted following a jury trial of battery resulting

      in moderate bodily injury1 as a Level 6 felony, criminal confinement2 as a Level

      6 felony, domestic battery3 as a Class A misdemeanor, and battery resulting in

      bodily injury4 as a Class A misdemeanor and pleaded guilty to being a habitual

      offender.5 The trial court sentenced Tools to two and one-half years for each of

      the two Level 6 felonies and one year for the Class A misdemeanor domestic

      battery and ordered the sentences to be served concurrently in the Indiana

      Department of Correction. The trial court did not sentence Tools for the Class

      A misdemeanor battery resulting in bodily injury; instead, the court merged that

      count into the domestic battery count. Tr. at 293. The trial court also

      sentenced Tools to two and one-half years for being a habitual offender, and

      ordered that sentence to run consecutive to the other sentences, for an aggregate

      sentence of five years. Tools appeals, raising the following restated issues:


                 I. Whether the trial court erred in refusing Tools’s instruction on
                 presumption of innocence;


                 II. Whether Tools’s convictions for Level 6 felony battery
                 resulting in moderate bodily injury and Class A misdemeanor




      1
          See Ind. Code § 35-42-2-1(e)(1).
      2
          See Ind. Code § 35-42-3-3(a).
      3
          See Ind. Code § 35-42-2-1.3(a).
      4
          See Ind. Code § 35-42-2-1(d)(1).
      5
          See Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2073 | September 30, 2016   Page 2 of 22
              domestic battery violate the double jeopardy protections set forth
              in the Indiana Constitution; 6 and


              III. Whether the case should be remanded with instructions that
              the trial court prepare a new sentencing order to correct errors
              found in the existing sentencing order.


[2]   We affirm in part, vacate in part, and remand with instructions.


                                   Facts and Procedural History
[3]   In August 2015, Tools and N.N., who had resided together for over five years,

      lived with their three-year-old daughter in an apartment located in Marion

      County, Indiana. During the night of August 19 through the morning of

      August 20, 2015, the couple’s shared use of a car created conflict, causing Tools

      to become increasingly agitated with N.N. That night, Tools cursed and yelled

      at N.N. to hurry up as he waited to pick her up. He also yelled at N.N. while

      ordering her to drive him to a friend’s house. Later that night, Tools called and

      told N.N. to pick him up; when N.N. refused, Tools became angry and, again

      cursing, said he was “coming to get [his] shit.” Tr. at 89.


[4]   N.N., thinking that Tools wanted to break up with her, drove to the house of

      her mother (“Joyce”) and dropped off her child to be cared for by N.N.’s sister.

      N.N. left her car at Joyce’s house, and N.N. and Joyce drove back in Joyce’s




      6
       Tools’s only double jeopardy claim arises under the Indiana Constitution; he raises no claim under the
      United States Constitution.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2073 | September 30, 2016       Page 3 of 22
      car to N.N.’s apartment to pack up Tools’s belongings. While N.N. was

      packing, Tools arrived at the apartment; he was very angry and accused N.N. of

      hiding the couple’s child and the car. Tools then ordered N.N. to get a blanket

      from upstairs and followed her while yelling. The fight escalated, and Tools

      kicked and damaged the couple’s 55-inch flat-screen television. N.N. screamed,

      prompting Joyce to run upstairs. Joyce urged N.N. to leave, but Tools would

      not let N.N. leave and ordered her to finish packing his things. Tools then

      grabbed N.N. by her hair and began punching her head and face with a closed

      fist, causing N.N. extreme pain. Joyce tried to push Tools off of N.N., but was

      unsuccessful.


[5]   Tools picked N.N. up off the floor and said he was sorry. Joyce left to get the

      car while N.N. lay on the couch with her head pounding in pain. Tools

      proceeded to pull N.N. off the couch and onto the floor; he then leaned over

      her telling her, repeatedly, that he was sorry. N.N. tried to leave, but was

      unable to do so because Tools was on top of her. Tools eventually released

      N.N., who left the apartment with Joyce.


[6]   An examination at the hospital revealed that N.N. had a cut on her head, a

      knot and some abrasions on her forehead, and a swollen nose. Indianapolis

      Metropolitan Police Officer Gene Smith (“Officer Smith”) was dispatched to

      the hospital to speak with N.N. and noted that N.N. had a knot on her

      forehead, and her nose was swollen. N.N. told Officer Smith that Tools had

      battered her.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2073 | September 30, 2016   Page 4 of 22
[7]   Tools was arrested and initially charged with Level 6 felony battery resulting in

      moderate bodily injury; Level 6 felony intimidation; Level 6 felony criminal

      confinement; domestic battery enhanced to a Level 6 felony based on prior

      domestic battery convictions; and Class A misdemeanor battery resulting in

      bodily injury. Prior to trial, the State moved to dismiss the intimidation count

      and chose not to prosecute the enhancement for domestic battery. Appellant’s

      App. at 29-31. This resulted in the State filing an amended information

      charging Tools with: Count I, Level 6 felony battery resulting in moderate

      bodily injury; Count II, Level 6 felony criminal confinement; Count III, Class

      A misdemeanor domestic battery; and Count IV, Class A misdemeanor battery

      resulting in bodily injury. Id. at 77-78. Also prior to trial, the State filed an

      information alleging Tools was a habitual offender.


[8]   At the commencement of trial, Tools tendered to the trial court Preliminary

      Instruction No. 1,7 an instruction on presumption of innocence. The trial court

      refused Tools’s instruction, concluding that the substance of the instruction was

      covered by the trial court’s other instructions, particularly Preliminary

      Instruction No. 7. The jury found Tools guilty on all four counts, and Tools

      pleaded guilty to being a habitual offender.


[9]   During the sentencing hearing, the trial court stated:




      7
        Tools tendered numerous instructions, all of which were refused, but only one of which forms the basis of
      this appeal, Preliminary Instruction No. 1.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2073 | September 30, 2016        Page 5 of 22
               [A]s to Battery with Moderate Bodily Injury, 2 1/2 years,
               Confinement as a Level 6 Felony, 2 1/2 years, Domestic Battery
               as a Class A misdemeanor, 1 year, um battery as a class a
               misdemeanor, merges into a domestic battery count. Those
               counts will all run concurrent, meaning at the same time. The
               habitual offender enhancement will run consecutive . . . .


       Tr. at 293. While recognizing that being a habitual offender is an enhancement,

       the trial court did not attach the habitual offender finding to enhance the

       sentence for one of Tools’s felony convictions; instead, the trial court ordered,

       the habitual offender enhancement “will run consecutive.” Id. Tools now

       appeals.


                                      Discussion and Decision

                                          I. Jury Instructions
[10]   Tools argues that it was reversible error for the trial court to refuse his tendered

       Preliminary Instruction No. 1, which read:

               Under the law of this state, a person charged with a crime is
               presumed to be innocent. This presumption continues in favor of the
               accused throughout the trial of this cause. To overcome the
               presumption of innocence, the State must prove the Defendant
               guilty of each essential element of the crime charged, beyond a
               reasonable doubt.


               The Defendant is not required to present any evidence to prove
               his/her innocence or to prove or explain anything.


               You should attempt to fit the evidence to the presumption that
               the Defendant is innocent.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2073 | September 30, 2016   Page 6 of 22
               If the evidence in this case is susceptible of two (2) constructions or
               interpretations, each of which appears to you to be reasonable, and one of
               which points to the guilt of the Defendant, and the other to his innocence,
               it is your duty, under the law to adopt that interpretation which is
               consistent with the Defendant’s innocence, and reject that which points to
               his guilt.


       Appellant’s App. at 94 (emphasis added).


[11]   The trial court refused this tendered instruction on the grounds that the content

       was adequately covered in other instructions. Omitting the emphasized

       language of Tools’s Preliminary Instruction No. 1, the trial court’s Preliminary

       Instruction No. 7 read:


               Under the law of this State, a person charged with a crime is
               presumed to be innocent. To overcome the presumption of
               innocence, the State must prove the Defendant guilty of each
               element of the crime charged, beyond a reasonable doubt.


               The Defendant is not required to present any evidence to prove
               his innocence or to prove or explain anything. You should
               attempt to fit the evidence to the presumption that the Defendant
               is innocent and the theory that every witness is telling the truth.


       Id. at 116.


[12]   “The Fourteenth Amendment requires the trial court to instruct the jury in

       criminal cases that the accused is presumed innocent until proven guilty beyond

       a reasonable doubt.” McCowan v. State, 27 N.E.3d 760, 763 (Ind. 2015).

       Failure to give a requested instruction on the presumption of innocence,

       however, is not in and of itself a violation of the Constitution. Kentucky v.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2073 | September 30, 2016   Page 7 of 22
       Whorton, 441 U.S. 786, 789 (1979). “Indeed, the purpose of a jury instruction is

       to inform the jury of the law applicable to the facts without misleading the jury

       and to enable it to comprehend the case clearly and arrive at a just, fair, and

       correct verdict.” McCowan, 27 N.E.3d at 764 (citation omitted) (internal

       quotation marks omitted).


[13]   Citing to McCowan, Tools contends that the trial court erred when it refused

       Preliminary Instruction No. 1. In McCowan, our Supreme Court stated, “A

       defendant in a criminal case is per se entitled to a jury instruction that the

       defendant is presumed innocent until proven guilty beyond a reasonable

       doubt.” Id. at 766. Clarifying its holdings in Farley v. State, 127 Ind. 419, 420,

       26 N.E. 898, 899 (1891) and Robey v. State, 454 N.E.2d 1221, 1222 (Ind. 1983),

       the Court recognized, “In addition, the defendant is entitled to request the

       following jury instruction, and the trial court must give this instruction if

       requested: ‘The presumption of innocence continues in favor of the defendant

       throughout the trial. You should fit the evidence to the presumption that the

       defendant is innocent if you can reasonably do so.’” McCowan, 27 N.E.3d at

       766. The McCowan Court referred to this as a “bright-line” rule. Id. The Court,

       however, went on to say, “If the defendant adds to or varies this language in his

       request, inclusion of that variation remains within the discretion of the trial

       court, under the traditional three-prong analysis established by our

       jurisprudence.” Id.


[14]   Here, Preliminary Instruction No. 1 added and varied the language from the

       bright-line rule; accordingly, under McCowan, the “inclusion of that variation

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2073 | September 30, 2016   Page 8 of 22
       remain[ed] within the discretion of the trial court,” to be analyzed “under the

       traditional three-prong analysis established by our jurisprudence.” Id. Under

       the three-prong analysis, we review a trial court’s decision to give or refuse a

       tendered instruction for an abuse of discretion. Id. at 763. “To determine

       whether a jury instruction was properly refused, we consider: (1) whether the

       tendered instruction correctly states the law; (2) whether there was evidence

       presented at trial to support giving the instruction; and (3) whether the

       substance of the instruction was covered by other instructions that were given.”

       Id. at 763-64 (internal quotation marks omitted). In so doing, “we consider the

       instructions as a whole and in reference to each other and do not reverse the

       trial court for an abuse of that discretion unless the instructions as a whole

       mislead the jury as to the law in the case.” Id. at 764 (citations omitted)

       (internal quotation marks omitted). “An improper instruction will merit

       reversal only if it ‘so affects the entire charge that the jury was misled as to the

       law in the case.’” Tinkham v. State, 787 N.E.2d 440, 442 (Ind. Ct. App. 2003)

       (quoting Hubbard v. State, 742 N.E.2d 919, 921 (Ind. 2001)).


[15]   On appeal, Tools claims that Preliminary Instruction No. 1 “is a correct

       statement of the law and the substance was not covered by the court’s

       instructions.”8 Appellant’s Br. at 11. At trial, addressing the reasons to instruct




       8
        Because a defendant is per se entitled to an instruction on the presumption of innocence, there is no issue
       on appeal regarding “whether there was evidence presented at trial to support giving the instruction.”
       McCowan v. State, 27 N.E.3d 760, 763 (Ind. 2015).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2073 | September 30, 2016         Page 9 of 22
the jury on Preliminary Instruction No. 1, the following colloquy took place

between the trial court and defense counsel Tyler Doane (“Doane”):


         THE COURT: What concept in your offer number one do you
         think [is] not covered by the court[’s] propose[d] instructions?


         MR. T. DOANE: You said [it’s] court instruction number seven,
         Your Honor?


         THE COURT: Yes.


         MR. T. DOANE: Well, Your Honor. I guess in two parts, um
         the first being that the -- the portion where the case is susceptible of two
         constructions of interpretation, that um, one of which points [to] the guilt
         [of] the defendant, and the other to his innocence, it’s your duty to adopt
         the interpretation which [is] consistent with the defendant[’s] innocence
         and reject that [which] point[s] to [his] guilt. Um, the second is that,
         the -- you should, um, the portion where it said, that every
         witness is telling the truth, that’s lumped in . . . with presumption
         of innocence.


         THE COURT: Well, the presumption of innocence is stated
         twice in preliminary instruction number seven and I think it’s a
         fair statement of the concept you talked about in proposed
         number one, [that] the defendant is not required to present any
         evidence to prove his innocence or to prove or explain anything.
         You should attempt to fit the evidence to the presumption that
         the defendant is innocent. I think that . . . is good enough, go on
         to your next one.9




9
  Tools does not address on appeal the objection he made at trial concerning the inclusion of “every witness
is telling the truth,” within Preliminary Instruction No.7.

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2073 | September 30, 2016 Page 10 of 22
       Tr. at 16-17. As the exchange reveals, Tools’s major concern at trial was the

       absence of the last paragraph (“Paragraph 4”) of Preliminary Instruction No. 1,

       which read:

               If the evidence in this case is susceptible of two (2) constructions
               or interpretations, each of which appears to you to be reasonable,
               and one of which points to the guilt of the Defendant, and the
               other to his innocence, it is your duty, under the law to adopt
               that interpretation which is consistent with the Defendant’s
               innocence, and reject that which points to his guilt.


       Appellant’s App. at 94.


[16]   In Robey, our Supreme Court approved the use of an instruction that contained

       the following two paragraphs:

               If the evidence in this case is susceptible of two constructions or
               interpretations, each of which appears to you to be reasonable,
               and one of which points to the guilt of the defendant, and the
               other to his innocence, it is your duty, under the law, to adopt
               that interpretation which will admit of the defendant’s innocence,
               and reject that which points to his guilt.


               You will notice that this rule applies only when both of the two
               possible opposing conclusions appear to you to be reasonable. If,
               on the other hand, one of the possible conclusions should appear
               to you to be reasonable and the other to be unreasonable, it
               would be your duty to adhere to the reasonable deduction and to
               reject the unreasonable, bearing in mind, however, that even if
               the reasonable deduction points to defendant’s guilt, the entire
               proof must carry the convincing force required by law to support
               a verdict of guilt.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2073 | September 30, 2016 Page 11 of 22
       Robey, 454 N.E.2d at 1222. Paragraph 4 of Tools’s tendered instruction was

       modeled after the first paragraph of the Robey instruction; however, Tools’s

       Preliminary Instruction No. 1 did not include the second paragraph approved in

       Robey. The omission of that second paragraph was critical. In Matheny v. State,

       983 N.E.2d 672, 678 (Ind. Ct. App. 2013), aff’d on reh’g, 987 N.E.2d 1169 (Ind.

       Ct. App. 2013), considering a tendered instruction that was essentially identical

       to Preliminary Instruction No. 1, a panel of this court found that such

       instruction, which contained only the first paragraph of the Robey instruction,

       was an incomplete statement of law and that the trial court did not abuse its

       discretion when it refused Matheny’s tendered instruction. Matheny, 983

       N.E.2d at 680.


[17]   Thereafter, our Supreme Court in McCowan confirmed that “inclusion of

       [Robey’s two] paragraphs remains within the sound discretion of the trial court,

       and both paragraphs should be included together, if at all.” McCowan, 27 N.E.3d at

       766 n.4 (emphasis added). Here, where Tools tendered only the first of the two

       paragraphs from the Robey instruction, Preliminary Instruction No.1 was an

       incomplete statement of the law, and the trial court did not abuse its discretion

       when it refused to use that tendered instruction.


[18]   The McCowan Court also held that the following instruction must be given if

       requested, “The presumption of innocence continues in favor of the defendant

       throughout the trial. You should fit the evidence to the presumption that the

       defendant is innocent if you can reasonably do so.” McCowan, 27 N.E.3d at

       766. On appeal, Tools contends that the trial court erred in rejecting his
       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2073 | September 30, 2016 Page 12 of 22
       tendered language that “[t]he presumption of innocence continues in favor of

       the defendant throughout the trial.”10 Id. It is unclear whether McCowan

       contemplates that a trial court must review a tendered instruction in its entirety

       or allows a trial court to review distinct paragraphs within a single instruction,

       applying different standards of review for each. We need not address this issue,

       however, because Tools does not prevail under either scenario. Assuming

       without deciding that the trial court erred in refusing to instruct the jury that a

       presumption of innocence continues in favor of the accused throughout the trial

       of this cause, that error was harmless under the facts of this case.


[19]   The United States Supreme Court has said that “the failure to give a requested

       instruction on the presumption of innocence does not in and of itself violate the

       Constitution.” Whorton, 441 U.S. at 789. Instead, “such a failure must be

       evaluated in light of the totality of the circumstances—including all the

       instructions to the jury, the arguments of counsel, whether the weight of the

       evidence was overwhelming, and other relevant factors—to determine whether

       the defendant received a constitutionally fair trial.” Id.; see also Vaughan v. State,

       446 N.E.2d 1, 3 (Ind. Ct. App. 1983) (noting that Indiana followed Whorton);

       but cf. Lee v. State, 964 N.E.2d 859, 864-65 (Ind. Ct. App. 2012), trans. denied

       (concluding that trial court’s refusal to give instruction on presumption of




       10
          In Preliminary Instruction No. 7, the trial court gave an instruction comparable to the following language
       in McCowan, “You should fit the evidence to the presumption that the defendant is innocent if you can
       reasonably do so.” McCowan, 27 N.E.3d at 766. Accordingly, Tools does not contend that the trial failed to
       comply with this part of McCowan’s bright-line rule. Appellant’s App. at 12.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2073 | September 30, 2016 Page 13 of 22
       innocence was reversible error where State failed to respond to defendant’s

       argument that error was not harmless). “Generally, ‘[e]rrors in the giving or

       refusing of instructions are harmless where a conviction is clearly sustained by

       the evidence and the jury could not properly have found otherwise.’” Matheny,

       983 N.E.2d at 681 (quoting Smith v. State, 755 N.E.2d 1150, 1152 (Ind. Ct. App.

       2001), trans. denied)), aff’d on reh’g, 987 N.E.2d 1169 (Ind. Ct. App. 2013).


[20]   During voir dire, the trial court in the present case explained to the jury that

       “[u]nder the United States Constitution, a person charged with a crime is

       presume[d] innocent and . . . [t]o overcome the presumption of innocen[ce], the

       State must prove beyond a reasonable doubt each essential element of the crime

       charge[d].” Tr. at 50. The trial court asked the voir dire panel whether any of

       them disagreed with the principle that the “defendant does not have to prove he

       is innocent.” Id. None of the jurors responded.


[21]   Upon review of all of the instructions, we find that the trial court’s preliminary

       instructions adequately advised the jury regarding Tools’s presumption of

       innocence. In Preliminary Instruction No.1, the jury was told to “keep an open

       mind. You should not form or express any conclusion or judgment about the

       outcome of the case until the Court submits the case to you for your

       deliberations. Appellant’s App. at 102. Preliminary Instruction No. 6 informed

       the jury, “The filing of a charge or the Defendant’s arrest is not to be considered

       by you as any evidence of guilt.” Id. at 115. Preliminary Instruction No. 7

       advised the jury that Tools was presumed innocent, and he was not required to

       prove his innocence or to prove or explain anything. Id. at 116. Preliminary

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2073 | September 30, 2016 Page 14 of 22
       Instruction No. 8 read, “The burden is upon the State to prove beyond a

       reasonable doubt that the Defendant is guilty of the crimes charged. It is a strict

       and heavy burden.” Id. at 117. It also said, “A Defendant must not be

       convicted on suspicion or speculation[,]” and “The State must prove each

       element of the crimes by evidence that firmly convinces each of you and leaves

       no reasonable doubt. The proof must be so convincing that you can rely and

       act upon it in a matter of the highest importance.” Id. Final Jury Instruction

       No. 1 advised the jury to consider the preliminary instructions along with the

       final instructions to arrive at a verdict. Id. at 124.


[22]   Here, there was no issue of identification, and Tools’s conviction was supported

       by direct and not circumstantial evidence. N.N., who had lived with Tools for

       more than five years, testified that, on the night in question, she was packing up

       Tools’s belongings when he entered the apartment. Tr. at 94-95. Tools was

       angry and ended up grabbing N.N. by the hair and punching her head and face

       with a closed fist, causing N.N. extreme pain. Id. at 96-97. N.N.’s mother,

       Joyce, was also in the apartment and tried to push Tools off of N.N., without

       success. Id. at 97. N.N. testified that, after Joyce left to get her car, Tools

       pulled N.N. to the floor, leaned over her, and would not let her get up. Id. at

       105. Joyce testified that she was in the apartment with N.N. as N.N. was

       packing up Tools’s belongings, when Tools arrived at the apartment and joined

       N.N. upstairs. Id. at 139. Joyce, who was worried about N.N., waited on the

       stairs. Upon hearing a crash, Joyce ran upstairs and saw Tools “drop[] a whole

       bunch of stuff on [N.N.’s] head”; Tools grabbed the “back of [N.N.’s] head

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2073 | September 30, 2016 Page 15 of 22
       with her hair and he was punching her up.” Id. at 141. We conclude that

       Tools’s conviction is clearly supported by the evidence, and the jury could not

       properly have found otherwise. Based on the totality of the circumstances, we

       conclude that the trial court’s refusal to give Preliminary Instruction No. 1, if

       error, was harmless.


                                          II. Double Jeopardy
[23]   Tools claims that his convictions and accompanying sentences for Level 6

       felony battery resulting in moderate bodily injury and Class A misdemeanor

       domestic battery violate Indiana’s double jeopardy principles because the basis

       for both battery charges, and resultant injuries, arose from the same act of

       hitting N.N. Our court reviews de novo whether a defendant’s convictions

       violate double jeopardy principles. Sloan v. State, 947 N.E.2d 917, 920 (Ind.

       2011).


[24]   The Double Jeopardy Clause found in Article 1, Section 14 of the Indiana

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

       offense.” We analyze alleged violations of Indiana’s Double Jeopardy Clause

       pursuant to Richardson v. State, 717 N.E.2d 32 (Ind. 1999). In Richardson, our

       Supreme Court held that “two or more offenses are the ‘same offense’ in

       violation of Article 1, Section 14 of the Indiana Constitution, 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




       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2073 | September 30, 2016 Page 16 of 22
       the essential elements of another challenged offense.” Richardson, 717 N.E.2d

       at 49 (emphasis in original).


[25]   Under the “actual evidence” test, a defendant must demonstrate a reasonable

       possibility that the evidentiary facts used by the jury to establish the essential

       elements of one offense may also have been used to establish all of the essential

       elements of a second challenged offense. Hines v. State, 30 N.E.3d 1216, 1222

       (Ind. 2015) (citing Richardson, 717 N.E.2d at 53). The term “reasonable

       possibility” “turns on a practical assessment of whether the jury may have

       latched on to exactly the same facts for both convictions.” Lee v. State, 892

       N.E.2d 1231, 1236 (Ind. 2008). The fact that the same evidence may have been

       used to establish a single element of each of two offenses, however, does not

       constitute a double jeopardy violation. Hines, 30 N.E.3d at 1221 (citing Spivey

       v. State, 761 N.E.2d 831, 833 (Ind. 2002)).


[26]   Application of this test requires the court to: (1) identify the essential elements

       of each of the challenged crimes; and (2) evaluate the evidence from the

       perspective of the finder of fact. Newgent v. State, 897 N.E.2d 520, 525 (Ind. Ct.

       App. 2008) (quoting Lee, 892 N.E.2d at 1234) (quotation marks omitted). In

       determining the facts used by the jury to establish the elements of each offense,

       it is appropriate to consider the charging information, jury instructions, and

       arguments of counsel. Id.


[27]   In the count for battery resulting in moderate bodily injury, the State charged

       that Tools “did knowingly or intentionally touch [N.N.] in a rude, insolent, or


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2073 | September 30, 2016 Page 17 of 22
       angry manner, resulting in moderate bodily injury to the other person,

       specifically swelling and/or lacerations resulting in substantial pain to [N.N.]”

       Appellant’s App. at 77. In the domestic battery count, the State charged that

       Tools did knowingly touch N.N. (with whom Tools had a child in common)

       “in a rude, insolent, or angry manner, to wit: struck and beat [N.N.] and

       grabbed her by the hair and pulled her hair, and further said touching resulting

       in bodily injury to the other person, specifically swelling and/or lacerations

       and/or pain.” Id. at 78. The State agrees that the two counts charge the same

       conduct and that the evidence, instructions, and the prosecutors’ argument do

       not support two separate convictions. Appellee’s Br. at 17. Accordingly, we

       remand this case and instruct the trial court to vacate Tools’s conviction for

       Class A misdemeanor domestic battery.


                                         III. Sentencing Order
[28]   Tools contends that this case should be remanded to the trial court with

       instructions to correct his sentencing order, and he highlights three errors.

       First, he argues that the trial court’s act of merging his Class A misdemeanor

       battery resulting in bodily injury into his Class A misdemeanor domestic battery

       did not resolve the violation of double jeopardy protections. Second, he

       maintains that the trial court erred when it did not use his habitual offender

       finding to enhance a specific felony, but instead, imposed a two and one-half

       year sentence and ordered that it run consecutively to his other concurrent

       sentences. Third, he contends that the sentencing order “needs to be corrected



       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2073 | September 30, 2016 Page 18 of 22
       to accurately reflect the charges for which the jury found Tools guilty.”

       Appellant’s App. at 17.


                                        A. Merging versus Vacating

[29]   Tools contends that the trial court’s act of merging the conviction for Count IV,

       Class A misdemeanor battery resulting in bodily injury, into his conviction for

       Count III, Class A misdemeanor domestic battery, was insufficient to remedy

       the violation of double jeopardy protections. “[U]se of the same evidence to

       convict a person of multiple crimes is a violation of the double jeopardy

       prohibition.” Steele v. State, 42 N.E.3d 138, 145 (Ind. Ct. App. 2015) (citing

       Richardson, 717 N.E.2d at 49 (defining double jeopardy under Indiana

       Constitution)).


               If a trial court has entered multiple convictions based on the
               same evidence, then the trial court’s act of merging, without also
               vacating, the convictions is not sufficient. Indeed, a double
               jeopardy violation occurs when judgments of conviction are entered and
               cannot be remedied by the practical effect of concurrent
               sentences or by merger after conviction has been entered.


       Id. (quoting Payton v. State, 818 N.E.2d 493, 497 (Ind. Ct. App. 2004))

       (emphasis added) (internal quotation marks omitted). “However, double

       jeopardy is not implicated when a defendant is found guilty of multiple counts

       that are merged into a single conviction.” Id. (citing Green v. State, 856 N.E.2d

       703, 704 (Ind. 2006) (“a merged offense for which a defendant is found guilty,

       but on which there is neither a judgment nor a sentence, is ‘unproblematic’ as

       far as double jeopardy is concerned”)). Here, the status of the convictions is

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2073 | September 30, 2016 Page 19 of 22
       unclear. The sentencing order improperly sets forth that Tools pleaded guilty to

       Class A misdemeanor battery resulting in bodily injury when, in fact, he was

       found guilty of that count. Additionally, the sentencing order improperly sets

       forth that Tools’s conviction for domestic battery was merged, when it was the

       battery resulting in bodily injury that merged into the domestic battery.

       Accordingly, we remand to the trial court with instructions to amend the

       sentencing order to correctly reflect the charges and convictions and, if required

       to comply with our court’s reasoning in Steele, vacate Tools’s conviction for

       Class A misdemeanor battery resulting in bodily injury.


                                      B. Habitual Offender Sentence

[30]   Tools next argues that the trial court erred when it did not attach his habitual

       offender finding to a specific felony as a sentence enhancement, but instead,

       imposed a two and one-half year sentence and ordered that it run consecutively

       to his other concurrent sentences. We agree.


[31]   Indiana Code section 35-50-2-8(j) in part provides:

               Habitual offender is a status that results in an enhanced sentence.
               It is not a separate crime and does not result in a consecutive
               sentence. The court shall attach the habitual offender
               enhancement to the felony conviction with the highest sentence
               imposed and specify which felony count is being enhanced.


       During the sentencing hearing, the trial court referred to the term “habitual

       offender enhancement.” Tr. at 293. While apparently recognizing that being a

       habitual offender is an enhancement and not a separate offense, the trial court

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2073 | September 30, 2016 Page 20 of 22
       did not attach the habitual offender enhancement to a felony conviction. Id.

       Tools argues that the trial court erred when it imposed a separate two and one-

       half year sentence on the habitual offender finding and ordered that sentence to

       be served consecutive to the concurrent sentences for Tools’s convictions. The

       State agrees. Appellee’s Br. at 17-18.


[32]   Because the trial court entered a separate sentence on Tools’s habitual offender

       determination, we remand to the trial court with instructions to correct the

       sentencing order, abstract of judgment, and chronological case summary to (1)

       reflect that Tools pleaded guilty to being a habitual offender, and (2) identify

       which of Tools’s Level 6 felony sentences will be enhanced by two and one-half

       years on the basis of the habitual offender adjudication.


                                             C. Sentencing Order

[33]   Finally, Tools seeks that this case be remanded to the trial court with

       instructions to amend the sentencing order to accurately reflect the charges for

       which the jury found Tools guilty. Appellant’s App. at 17. We agree. In

       addition to the errors discussed above, the sentencing order improperly

       indicates: (1) that Tools was found guilty of intimidation, a charge that was

       dismissed prior to trial; and (2) that Tools’s domestic battery conviction was a

       Level 6 felony, when the State tried him for domestic battery as a Class A

       misdemeanor.


[34]   We affirm Tools’s convictions for Level 6 felony battery resulting in moderate

       bodily injury and Level 6 felony criminal confinement, vacate his conviction for


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2073 | September 30, 2016 Page 21 of 22
       domestic battery on the basis of double jeopardy concerns, and remand to the

       trial court with instructions to amend the sentencing order, abstract of

       judgment, and chronological case to accurately reflect Tools’s convictions and

       sentence.


[35]   Affirmed in part, vacated in part, and remanded with instructions.


[36]   Riley, J., and Pyle, J., concur.




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