                                                          FILED
                                                     Jul 08 2016, 8:51 am

                                                          CLERK
                                                      Indiana Supreme Court
                                                         Court of Appeals
                                                           and Tax Court




ATTORNEY FOR APPELLANT                                       ATTORNEYS FOR APPELLEE
Ann M. Sutton                                                Gregory F. Zoeller
Marion County Public Defender                                Attorney General of Indiana
Agency Appellate Division
Indianapolis, Indiana                                        Larry D. Allen
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Ariel Gomez,                                                July 8, 2016
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            49A02-1511-CR-2000
        v.                                                  Appeal from the Marion Superior
                                                            Court
State of Indiana,                                           The Honorable Hugh Patrick
Appellee-Plaintiff.                                         Murphy, Magistrate
                                                            Trial Court Cause No.
                                                            49G16-1506-CM-21813




Brown, Judge.



Court of Appeals of Indiana | Opinion 49A02-1511-CR-2000 | July 8, 2016                    Page 1 of 16
[1]   Ariel Gomez appeals his three convictions for domestic battery as class A

      misdemeanors. Gomez raises two issues which we revise and restate as:


                 I.       Whether the evidence is sufficient to support his
                          convictions; and

                 II.      Whether his convictions violate the continuous crime
                          doctrine.

      We affirm in part and reverse in part.


                                           Facts and Procedural History

[2]   Gomez and Maria Chavez were married in 1995, and Gomez filed a petition

      for dissolution of marriage on October 28, 2014. Chavez and Gomez owned

      property on Rochester Avenue in Indianapolis (the “Rochester Property”).1 On

      December 16, 2014, the dissolution court entered a preliminary order which

      ordered that Gomez would have temporary possession of “rental property

      rents.”2 Exhibits at 12.


[3]   On May 16, 2015, the dissolution court held a final dissolution hearing at

      which Gomez appeared in person and by counsel, Chavez appeared pro se, and

      a Spanish interpreter appeared. Chavez believed that the Rochester Property

      had been “granted to [her] legally by the Judge,” and it was her “understanding




      1
          The parties also owned parcels on Alton Avenue and King Avenue.
      2
          The preliminary order did not specifically identify the rental properties by address or otherwise.
      Court of Appeals of Indiana | Opinion 49A02-1511-CR-2000 | July 8, 2016                                  Page 2 of 16
      from the Judge that [she] had possession” of the property. Transcript at 8.3

      According to Chavez, on June 21, 2015, she learned that Gomez had “lied to

      the Judge saying the [Rochester Property] was rented when it wasn’t rented,”

      that Gomez “had it ready to be rented after the Judge had granted it to [her],”

      and that she “found out that he was going to get in the house, the person who

      was going to rent the house, and [she] had to wait until the contract expired to

      be able to take over the house.” Id. at 10. That day, Chavez called one of her

      friends to see if her son, Amilcar Melendez, could help her “change the locks of

      the house so he wouldn’t have access to it.” Id.


[4]   Chavez and Melendez were at the Rochester Property when a woman and her

      boyfriend arrived in a truck. Chavez “told the renter that if he had received any

      deposit to ask for that because the house was not for rent because [Chavez] was




      3
        The record does not contain a transcript of the May 16, 2015 hearing in the dissolution action.
      Subsequently, on June 24, 2015, the dissolution court entered a Decree of Dissolution of Marriage. Under a
      heading for asset and debt division, the decree found that the Rochester Property and the properties on Alton
      Avenue and King Avenue were jointly titled and had no mortgages or liens and stated, “[d]uring the
      pendency of this matter, [Gomez] has been renting out the King Property for $400 a month, and he has been
      renting out the Rochester Property for $450 a month” and “[t]he Court finds that [Gomez] collected $6,800
      in rental proceeds during the pendency of this matter.” Exhibits at 16. The decree awarded the Rochester
      Property to Chavez, and it awarded the $6,800 of rental proceeds and the properties on Alton Avenue and
      King Avenue to Gomez. The court ordered that Gomez “shall sign a quitclaim deed transferring his interest
      in the Rochester Property” to Chavez, ordered that Chavez “shall have immediate possession of the
      Rochester Property, subject to the current lease,” and ordered that Gomez “shall provide [Chavez] with a
      copy of the current lease for the Rochester Property, and [Chavez] shall be entitled to the rental proceeds for
      the Rochester Property until the expiration of the lease.” Exhibits at 17.
      Court of Appeals of Indiana | Opinion 49A02-1511-CR-2000 | July 8, 2016                            Page 3 of 16
      going to live there.”4 Id. at 11. The woman stayed in the vehicle and called

      Gomez. Chavez gave Melendez her keys and told him to take her car “and go

      around and then come back and pick [her] up” because she did not want

      Melendez to be found by Gomez. Id. at 30. The woman in the truck observed

      Melendez leave the property immediately after she called Gomez. Also, before

      Gomez arrived at the property, the woman heard Chavez screaming and crying

      inside the house.


[5]   About ten minutes after the woman in the truck called Gomez, he arrived at the

      property. He was upset, banged on the front door, entered the house,5 and

      Chavez called the police. Gomez “grabbed [Chavez] by the hair [and] tried to

      get [her] out of the house,” and she “couldn’t and [she] didn’t want to get out of

      the house.” Id. at 12. He pushed her against the wall of the kitchen strongly

      several times, and she sustained scratches to her left arm, a cut to her elbow,

      and a bruise to her right knee.


[6]   Approximately fifteen minutes after he had left, Melendez returned to the

      Rochester Property and “could hear [Gomez and Chavez] screaming and



      4
        The woman in the van had paid Gomez a deposit of $500 and entered into a residential lease with him.
      The lease agreement provided that the term of the tenancy was from June 20, 2015, until June 20, 2016, and
      that rent would be paid to Gomez. A receipt for the $500 deposit is dated June 21, 2015.
      5
       The woman in the truck testified that Gomez knocked or banged on the front door, that she saw the door
      open and Gomez enter the house through the door, that she observed that Chavez’s demeanor was very
      aggressive, and that she heard Gomez and Chavez speak to each other. Chavez testified that she locked the
      door, that Gomez hit and kicked the door, and that he went around to a patio and broke a window and
      entered through the window.
      Court of Appeals of Indiana | Opinion 49A02-1511-CR-2000 | July 8, 2016                        Page 4 of 16
      knocking on the walls” and Chavez crying, and Melendez called the police. Id.

      at 31. Gomez exited the house and said he did not want to see Melendez in his

      home, and Melendez said okay. The woman in the truck lost sight of Gomez

      for at most three minutes.6 At some point, Chavez tried to shut the door and

      Gomez placed his foot on the door to keep it open. The police arrived about

      three minutes after Gomez opened the door, and they walked up to the

      residence, found the door open, and observed both Gomez and Chavez right by

      the front door. Chavez was crying, disheveled, and distraught while Gomez

      was calm.


[7]   On June 22, 2015, the State charged Gomez with four counts of domestic

      battery as class A misdemeanors and four counts of battery resulting in bodily

      injury as class A misdemeanors. The court held a bench trial at which Chavez

      testified that she was not represented by an attorney in her divorce proceeding,

      that she did not know English, and that she had not read the December 16,

      2014 preliminary order. The court found Gomez guilty of three counts of

      domestic battery as class A misdemeanors, Counts II, III, and IV,7 and found




      6
        When asked “did you lose sight of [] Gomez,” the woman in the truck answered “[f]or a little while because
      [Chavez] closed the door,” and when asked “you said a little while. How long was the door shut before it
      opened again,” the woman testified “[i]t was like three – could be minutes, seconds. It wasn’t a long time.”
      Transcript at 52-53. When later asked, “after [Gomez] went inside, the door shut for maybe three seconds to
      three minutes,” the renter responded affirmatively. Id. at 53.
      7
          The State alleged in Count II:

                 On or about June 21, 2015, Ariel Gomez did knowingly touch [Chavez], who is or was
                 the spouse of Ariel Gomez, . . . in a rude, insolent, or angry manner, to wit: grabbed, and
      Court of Appeals of Indiana | Opinion 49A02-1511-CR-2000 | July 8, 2016                              Page 5 of 16
      him not guilty of the remaining charges, and sentenced him to 365 days with

      359 days suspended to probation on each count to be served concurrently.


                                                       Discussion

                                                              I.


[8]   The first issue is whether the evidence is sufficient to support Gomez’s

      convictions. When reviewing the sufficiency of the evidence to support a

      conviction, we must consider only the probative evidence and reasonable

      inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.

      2007). We do not assess witness credibility or reweigh the evidence. Id. We

      consider conflicting evidence most favorably to the trial court’s ruling. Id. We

      affirm the conviction unless “no reasonable fact-finder could find the elements

      of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State,




               further said touching resulting in bodily injury to the other person, specifically scratch
               mark(s)[.]
      Appellant’s Appendix at 19. In Count III, the State alleged:
               On or about June 21, 2015, Ariel Gomez did knowingly touch [Chavez], who is or was
               the spouse of Ariel Gomez, . . . in a rude, insolent, or angry manner, to wit: slammed
               [Chavez] into a wall, and further said touching resulting in bodily injury to the other
               person, specifically cut(s)[.]
      Id. In Count IV, the State alleged:
               On or about June 21, 2015, Ariel Gomez did knowingly touch [Chavez], who is or was
               the spouse of Ariel Gomez, . . . in a rude, insolent, or angry manner, to wit: pulled
               [Chavez’s] hair, and further said touching resulting in bodily injury to the other person,
               specifically pain[.]
      Id.
      Court of Appeals of Indiana | Opinion 49A02-1511-CR-2000 | July 8, 2016                               Page 6 of 16
       726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary that the evidence

       overcome every reasonable hypothesis of innocence. Id. at 147. The evidence

       is sufficient if an inference may reasonably be drawn from it to support the

       verdict. Id.


[9]    Ind. Code § 35-42-2-1.3(a) provides that “[a] person who knowingly or

       intentionally touches an individual who: (1) is or was a spouse of the other

       person . . . in a rude, insolent, or angry manner that results in bodily injury to

       the person described in subdivision (1) . . . commits domestic battery, a Class A

       misdemeanor.”


[10]   Gomez asserts that the State did not negate his claim of defense of property and

       therefore his convictions must be reversed. He argues that he had been given

       the right to the property in the preliminary order from the divorce court, that

       the court did not award the Rochester Property to Chavez until days after the

       incident, that Chavez went to the property to keep a renter out and to change

       the locks and hid the man who was changing the locks by telling him to go

       around the block, that the entire episode lasted under three minutes and Chavez

       claims she received the scratches and bruises while Gomez was trying to push

       her out of the home, and that “[p]ushing [Chavez] out when she refused to

       leave was a legally acceptable option.” Appellant’s Brief at 12. He also asserts

       that “[w]hile it may be preferred that the authorities are called in such a

       situation, the same argument can be extended to taking the steps to change the

       locks on a property the person has no right to possess,” that “[r]emoving
       Court of Appeals of Indiana | Opinion 49A02-1511-CR-2000 | July 8, 2016    Page 7 of 16
       [Chavez] so the renters could enter was a reasonable option when she refused to

       leave,” and “[t]hat [Chavez’s] injuries were minor demonstrates that the force

       exerted by [him] in trying to extract [her] from his property was reasonable in

       light of the urgency of the situation.” Id. at 12.


[11]   The State maintains that there was no clear evidence that Chavez was a

       trespasser or that Gomez’s actions were reasonable. It argues that the

       Rochester Property was still, at least in part, in Chavez’s name, that Chavez

       understood that she was in possession of the house, which was formally decreed

       three days later, and that the preliminary order did not necessarily mean that

       Gomez was granted exclusive possession of the property but only that he could

       possess the rents from the property. The State also argues that Gomez’s actions

       were not reasonable because he had several options beyond physically attacking

       Chavez and that Chavez’s injuries demonstrate that Gomez attempted to use

       far more force than was reasonably necessary under the circumstances.


[12]   A claim of defense of property is analogous to the defense of self-defense. Hanic

       v. State, 406 N.E.2d 335, 339 (Ind. Ct. App. 1980). Ind. Code § 35-41-3-2

       provides in part:


               (d)      A person:

                        (1)      is justified in using reasonable force, including
                                 deadly force, against any other person; and

                        (2)      does not have a duty to retreat;

       Court of Appeals of Indiana | Opinion 49A02-1511-CR-2000 | July 8, 2016       Page 8 of 16
                        if the person reasonably believes that the force is necessary
                        to prevent or terminate the other person’s unlawful entry
                        of or attack on the person’s dwelling, curtilage, or
                        occupied motor vehicle.

               (e)      With respect to property other than a dwelling, curtilage,
                        or an occupied motor vehicle, a person is justified in using
                        reasonable force against any other person if the person
                        reasonably believes that the force is necessary to
                        immediately prevent or terminate the other person’s
                        trespass on or criminal interference with property lawfully
                        in the person’s possession, lawfully in possession of a
                        member of the person’s immediate family, or belonging to
                        a person whose property the person has authority to
                        protect. . . .


[13]   The State must disprove at least one element of the defense beyond a reasonable

       doubt. Nantz v. State, 740 N.E.2d 1276, 1280 (Ind. Ct. App. 2001), trans. denied.

       It is the factfinder’s decision to determine whether a claim of self-defense has

       been disproved. Id. Consequently, to establish his defense of property defense,

       Gomez was required to prove that he used reasonable force to prevent or

       terminate a trespass or to defend his property or property he was authorized to

       protect. See id. Any force employed must be reasonable in light of “the urgency

       of the situation.” Cf. Mateo v. State, 981 N.E.2d 59, 72 (Ind. Ct. App. 2012),

       trans. denied.


[14]   The record reveals that the preliminary order granted Gomez temporary

       possession of rental property rents, that the Rochester Property was jointly

       titled, and that Chavez testified that her understanding after the final dissolution
       Court of Appeals of Indiana | Opinion 49A02-1511-CR-2000 | July 8, 2016      Page 9 of 16
       hearing was that the dissolution court had granted her possession of the

       Rochester Property. She testified that, when she learned that a tenant was

       moving to the Rochester Property and that she would have “to wait until the

       contract expired to be able to take over the house,”8 Transcript at 10, she went

       with Melendez to change the locks. When Gomez became aware of this, he

       entered the Rochester Property, grabbed Chavez by the hair, pushed her, and

       pushed her against the kitchen wall, resulting in scratch marks on Chavez’s arm

       and a cut on her elbow. The evidence supports the conclusion that the force

       used by Gomez was unreasonable in light of the urgency of the situation and

       unreasonable to protect any alleged interest he may have had in the rents from

       the Rochester Property.9


[15]   Based upon the record, we conclude that the trial court as the trier of fact could

       find beyond a reasonable doubt that the State disproved an element of Gomez’s

       defense of property claim and that he committed the offenses of domestic

       battery as class A misdemeanors. See Nantz, 740 N.E.2d at 1281 (concluding




       8
         Although the record does not contain a transcript of the May 16, 2015 dissolution hearing, the court’s June
       24, 2015 dissolution decree awarded Chavez “immediate possession of the Rochester Property, subject to the
       current lease.” Exhibits at 17. Meanwhile, Gomez entered into a residential lease with a tenant for a year-
       long term which began on June 20, 2015, and expired on June 20, 2016.
       9
        The term of the residential lease began on June 20, 2015, and the decree ordering that Chavez shall be
       entitled to the rental proceeds for the Rochester Property was issued on June 24, 2015, and thus Gomez had
       an interest, at most, in four days’ worth of rental income from the Rochester Property.
       Court of Appeals of Indiana | Opinion 49A02-1511-CR-2000 | July 8, 2016                         Page 10 of 16
       that the defendant’s conduct of pointing a firearm constituted unreasonable

       force to protect his alleged property interest in a bulldozer).


                                                           II.


[16]   The next issue is whether Gomez’s three convictions for domestic battery as

       class A misdemeanors violate the continuous crime doctrine. Gomez argues

       that he and Chavez “were engaged in a three minute tussle as Gomez sought to

       terminate her illegal entry into his property,” that “[e]ach step did not constitute

       a separate act of battery, but was a whole act of pulling her hair and engaging in

       an effort to remove her from the house, knocking into walls as they headed for

       the door,” and that, “[i]f [he] committed domestic battery as charged, it was

       one instance of battery, and the injuries were the product of the one continuous

       act.” Appellant’s Brief at 15. He further argues that Chavez “answered

       positively when asked whether he was continuing to try to get her out of the

       house while she was resisting getting pushed out of the house.” Id. He also

       contends that he “should not have been charged for every scrape and bruise

       resulting from their tussle” and that two of his convictions should be vacated.

       Id.


[17]   The State asserts that it is not clear that Gomez’s actions were so connected as

       to constitute a single uninterrupted transaction. It argues that, “while Gomez

       attempted to shove Chavez out of the house, which resulted in her arms being

       scratched” there “seemed to be other actions that were more malicious than

       Court of Appeals of Indiana | Opinion 49A02-1511-CR-2000 | July 8, 2016   Page 11 of 16
       connected to the purpose of forcing her out of the home,” namely, “[f]irst,

       Gomez pulled Chavez’s hair” and “[l]ater, he repeatedly banged her against the

       wall, which cut her arm.” Appellee’s Brief at 18.


[18]   The continuous crime doctrine defines those instances where a defendant’s

       conduct amounts only to a single chargeable crime and prevents the State from

       charging a defendant twice for the same continuous offense. Koch v. State, 952

       N.E.2d 359, 373 (Ind. Ct. App. 2011), trans. denied. The doctrine “essentially

       provides that actions that are sufficient in themselves to constitute separate

       criminal offenses may be so compressed in terms of time, place, singleness of

       purpose, and continuity of action as to constitute a single transaction.” Id.

       (citation omitted). The continuous crime doctrine does not seek to reconcile

       the double jeopardy implications of two distinct chargeable crimes; rather, it

       defines those instances where a defendant’s conduct amounts only to a single

       chargeable crime. Hines v. State, 30 N.E.3d 1216, 1219 (Ind. 2015) (citing Pierce

       v. State, 761 N.E.2d 826, 830 (Ind. 2002) (recognizing “a series of rules of

       statutory construction and common law that are often described as double

       jeopardy, but are not governed by the constitutional test set forth in

       Richardson”)).10 The continuous crime doctrine requires a fact-sensitive



       10
          In Richardson v. State, the Indiana Supreme Court examined the double jeopardy clause of the Indiana
       Constitution and explained in part that “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.”
       Hines, 30 N.E.3d at 1221 (citing Richardson, 717 N.E.2d 32, 49 (Ind. 1999)).

       Court of Appeals of Indiana | Opinion 49A02-1511-CR-2000 | July 8, 2016                             Page 12 of 16
       analysis. Chavez v. State, 988 N.E.2d 1226, 1229 (Ind. Ct. App. 2013), trans.

       denied. We turn to whether Gomez’s actions of grabbing Chavez, slamming her

       into a wall, and pulling her hair, which are actions sufficient in themselves to

       constitute separate criminal offenses, on the evidence of this case as presented

       by the State at trial, are “so compressed in terms of time, place, singleness of

       purpose, and continuity of action as to constitute a single transaction.” See

       Koch, 952 N.E.2d at 373.


[19]   The evidence shows that the woman in the truck called Gomez on the phone

       and he arrived at the Rochester Property about ten minutes later. With respect

       to her altercation with Gomez, Chavez testified as follows:

               A        (Interpreter:) . . . . When he got in, he grabbed me by the
                        hair, he tried to get me out of the house. I couldn’t and I
                        didn’t want to get out of the house.

               Q        And how was he trying to get you out of the house?

               A        (Interpreter:) From my hair, pushing me.

               Q        So he’s trying to get you out of the house and were you
                        resisting getting pushed out of the house?

               A        (Interpreter:) Yes.

               Q        And then what happens after that?

               A        (Interpreter:) He insulted me verbally. He told me that I
                        was going out with the son of my friend, that I was a
                        prostitute, and that I needed to get out of the house.


       Court of Appeals of Indiana | Opinion 49A02-1511-CR-2000 | July 8, 2016      Page 13 of 16
        Q        And so during this time was he still trying to push you out
                 of the home?

        A        (Interpreter:) Yes. Several times he pushed me against the
                 wall of the kitchen strongly.

        Q        And did this result in any type of injury on you at the
                 time?

        A        (Interpreter:) The hair and then some bruises and
                 scratches.

        Q        So he hit you against the wall a couple of times --

        A        (Interpreter:) Yes.

        Q        -- and then what happened after that?

        A        (Interpreter:) The police arrived. He let me go and went
                 out through the door.


Transcript at 12-13. The woman in the truck testified that she lost sight of

Gomez inside the house for a period of at most three minutes, which is

consistent with the testimony that Melendez left the property immediately after

the woman in the truck called Gomez, that Gomez arrived at the property

about ten minutes after the woman called him, and that Melendez returned to

the property about fifteen minutes after he had left, or about five minutes after

Gomez arrived at the property. The deputy prosecutor argued in closing that

Gomez “forcibly tries to take her out by her hair. When she resists – because in

her mind this was her rightful home – he then slams her into the wall two to

three times, if not more, before he finally stops when the police arrive” and that

Court of Appeals of Indiana | Opinion 49A02-1511-CR-2000 | July 8, 2016     Page 14 of 16
       “[t]hree minutes is plenty of time for someone to bang another person around

       against a wall and cause the injuries that Ms. Chavez had.” Id. at 60-61.


[20]   Based upon the record and considering Chavez’s testimony describing Gomez’s

       acts while trying to push her out of the house, we conclude that the acts alleged

       in Counts II, III, and IV were sufficiently compressed in terms of time, place,

       singleness of purpose, and continuity of action so as to constitute a single

       transaction for purposes of the continuous crime doctrine. See Duvall v. State,

       978 N.E.2d 417, 428 (Ind. Ct. App. 2012) (noting that the defendant’s

       convictions for insurance fraud stemmed from six false statements given in a

       single insurance investigation interview, that her three convictions for

       obstruction of justice stemmed from a single crime scene clean-up in which she

       removed an alcohol bottle, medication container, and foam from the victim’s

       mouth, and that the defendant’s conduct was continuous so as to constitute one

       offense of insurance fraud and one offense of obstruction of justice), trans.

       denied; see also Chavez, 988 N.E.2d at 1229 (holding that the defendant

       committed two chargeable acts of child molesting rather than five and noting

       that three of the acts occurred during a first encounter between the defendant

       and the victim and two of the acts occurred during a second encounter). Cf.

       Hines, 30 N.E.3d at 1220-1221 (holding the continuous crime doctrine did not

       apply to the facts of the case and noting the defendant was not convicted of




       Court of Appeals of Indiana | Opinion 49A02-1511-CR-2000 | July 8, 2016    Page 15 of 16
       multiple charges of charges of battery). Accordingly, we reverse Gomez’s

       convictions on Counts III and IV.11


                                                      Conclusion

[21]   For the foregoing reasons, we affirm Gomez’s conviction for domestic battery

       as a class A misdemeanor on Count II and reverse his convictions on Counts III

       and IV.


[22]   Affirmed in part and reversed in part.


       Baker, J., and May, J., concur.




       11
          Gomez also argues his multiple convictions violate double jeopardy. Because we reverse Counts III and
       IV based on the continuous crime doctrine, we need not address Gomez’s double jeopardy arguments.
       Gomez’s aggregate sentence will not be affected by the reversal of his convictions on Counts III and IV as the
       trial court ordered concurrent sentences.
       Court of Appeals of Indiana | Opinion 49A02-1511-CR-2000 | July 8, 2016                         Page 16 of 16
