      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                           FILED
      regarded as precedent or cited before any                                  Oct 16 2019, 6:37 am
      court except for the purpose of establishing                                    CLERK
      the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                                     Court of Appeals
      estoppel, or the law of the case.                                                and Tax Court




      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Michael P. Quirk                                         Curtis T. Hill, Jr.
      Ana M. Quirk                                             Attorney General of Indiana
      Quirk & Hunter, P.C.                                     Samantha M. Sumcad
      Muncie, Indiana                                          Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Robert A. Walton,                                        October 16, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-2908
              v.                                               Appeal from the Delaware Circuit
                                                               Court
      State of Indiana,                                        The Honorable John M. Feick,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               18C04-1608-F3-27



      Mathias, Judge.


[1]   Following a jury trial in Delaware Circuit Court, Robert A. Walton (“Walton”)

      was convicted of Level 3 felony conspiracy to commit criminal confinement,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2908 | October 16, 2019                    Page 1 of 14
      Level 3 felony criminal confinement, four counts of Level 5 felony battery with

      a deadly weapon, Level 5 felony intimidation, two counts of Level 6 felony

      intimidation, and two counts of Level 6 felony criminal confinement. Walton

      appeals and presents two arguments, which we restate as: (1) whether the trial

      court erred by denying his motions for a directed verdict on the charges of

      conspiracy to commit criminal confinement and aggravated battery; and (2)

      whether his battery convictions constitute double jeopardy.


[2]   We affirm.


                                 Facts and Procedural History

[3]   At the time relevant to this appeal, John Keihn (“Keihn”) and his girlfriend

      Michelle Knight (“Knight”) lived with Catherine Morton (“Morton”) in a

      house on North Broadway Street in Muncie, Indiana. Walton and his friend

      Benitez McCullum (“McCullum”) worked at an auto shop also located on

      North Broadway Street. McCullum knew Keihn and Knight, and he and

      Walton would often visit them or invite them to parties held at the shop after

      work, where the revelers would drink alcohol.


[4]   On August 10, 2016, Walton and McCullum went to Knight’s house and

      invited her to come to a party at the shop. She agreed and went with them.

      When she entered the shop, Walton and McCullum used zip-ties to bind her

      hands and feet and accused her of being a police informant, an accusation

      which Knight denied. Unpersuaded by her denials, McCullum grabbed a

      pneumatic nail gun and threatened Knight with it, shooting blasts of

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2908 | October 16, 2019   Page 2 of 14
      compressed air at her. He then gave the gun to Walton and told him to shoot

      Knight’s legs if she did not admit to being an informant. Knight again denied

      being an informant, so Walton shot nails into her legs. Walton ultimately shot

      Knight in multiple parts of her body, including her left and right legs, her foot,

      her hip, and her torso. Knight went in and out of consciousness as Walton shot

      her with the nails.

[5]   Walton and McCullum then left Knight, bound and bleeding, in the shop as

      they went to get Keihn and Morton. They did the same to Keihn and Morton,

      binding them with zip-ties and accusing them of being police informants. As

      McCullum was questioning Keihn, he struck him in the head with a metal

      shovel. Walton and McCullum put duct tape on the mouths and necks of their

      three victims. After several hours, the assailants loosened the ties and tape.

      After McCullum left the shop, the three victims were able to escape,1 and

      Knight was taken to the hospital for her injuries.


[6]   On August 16, 2016, the State charged Walton with thirteen counts: Count 1,

      Level 3 felony conspiracy to commit criminal confinement; Count 2, Level 3

      felony criminal confinement; Count 3, Level 3 felony aggravated battery; Count

      4, Level 3 felony aggravated battery; Count 5, Level 3 felony aggravated

      battery; Count 6, Level 3 felony aggravated battery; Count 7, Level 3 felony

      attempted aggravated battery; Count 8, Level 5 felony battery by means of a



      1
       Walton later told the police that he loosened the ties and helped his victims escape. Knight testified,
      however, that McCullum told Walton to let them go.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2908 | October 16, 2019                   Page 3 of 14
      deadly weapon; Count 9, Level 5 felony intimidation; Count 10, Level 3 felony

      criminal confinement; Count 11, Level 6 felony intimidation; Count 12, Level 3

      felony criminal confinement; and Count 13, Level 6 intimidation.


[7]   A three-day jury trial commenced on September 10, 2018. At the conclusion of

      the State’s case-in-chief, Walton moved for a directed verdict on all counts. The

      trial court granted the motion only as to Count 7. At the conclusion of the trial,

      the jury found Walton not guilty on Count 8, but guilty as charged on Counts 1,

      2, and 9–13, and guilty of the lesser-included offense of Level 5 felony battery

      with a deadly weapon on Counts 3–6.


[8]   At a sentencing hearing held on November 7, 2018, the trial court sentenced

      Walton to seven years on Count 1; ten years on Count 2; five years each on

      Counts 3–6; and two years each on Counts 9–13. The trial court ordered the

      two-year sentence on Count 9 be served concurrently with the sentences

      imposed on Counts 1–3 and the two-year sentences on Counts 11–13 be served

      concurrently with the sentence imposed on Count 10, for an aggregate sentence

      of thirty-nine years of incarceration. Walton now appeals.


                                             I. Directed Verdicts

[9]   Walton first claims that the trial court erred in denying his motion for directed

      verdicts as to Counts 1, 3, 4, 5, and 6. A motion for judgment on the evidence,

      also known as a directed verdict, is governed by Indiana Trial Rule 50(A),

      which provides in relevant part:




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2908 | October 16, 2019   Page 4 of 14
               Where all or some of the issues in a case tried before a jury or an
               advisory jury are not supported by sufficient evidence or a verdict
               thereon is clearly erroneous as contrary to the evidence because
               the evidence is insufficient to support it, the court shall withdraw
               such issues from the jury and enter judgment thereon or shall
               enter judgment thereon notwithstanding a verdict. A party may
               move for such judgment on the evidence.


[10]   A trial court must grant such a motion only if: (1) the record is devoid of

       evidence on one or more elements of the offense; or (2) the evidence presented

       is without conflict and subject to only one inference, which is favorable to the

       defendant. Pavlovich v. State, 6 N.E.3d 969, 980 (Ind. Ct. App. 2014), trans.

       denied. On appeal, our review of the denial of a motion for directed

       verdict/judgment on the evidence is essentially the same as review of a claim of

       insufficient evidence to support a conviction. Id. (citing Edwards v. State, 862

       N.E.2d 1254, 1262 (Ind. Ct. App. 2007), trans. denied.); see also Jones v. State, 472

       N.E.2d 1255, 1259 (Ind. 1985) (“[t]he standard of review for a denial of a

       Motion for Judgment on the Evidence and for a challenge of insufficiency of

       the evidence is the same.”).


[11]   When reviewing a claim that the evidence is insufficient to support a

       conviction, we neither reweigh the evidence nor judge the credibility of the

       witnesses. Harrison v. State, 32 N.E.3d 240, 247 (Ind. Ct. App. 2015) (citing

       McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)), trans. denied. Instead, we

       respect the exclusive province of the jury to weigh any conflicting evidence. Id.

       We therefore consider only the probative evidence supporting the verdict and

       any reasonable inferences which may be drawn from this evidence. Id. We will

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2908 | October 16, 2019   Page 5 of 14
       affirm if the probative evidence and reasonable inferences drawn therefrom

       could have allowed a reasonable jury to find the defendant guilty beyond a

       reasonable doubt. Id.


       A.       Conspiracy to Commit Criminal Confinement

[12]   In Count 1, the State charged Walton with Level 3 felony conspiracy to commit

       criminal confinement. “A person conspires to commit a felony when, with

       intent to commit the felony, the person agrees with another person to commit

       the felony.” Ind. Code § 35-41-5-2(a). Additionally, “[t]he state must allege and

       prove that either the person or the person with whom he or she agreed

       performed an overt act in furtherance of the agreement.” Id. at § 2(b).2 To prove

       criminal confinement, the State is required to prove that the defendant

       “knowingly or intentionally confine[d] another person without the other

       person’s consent[.]” Ind. Code § 35-42-3-3(a). Criminal confinement is a Level

       3 felony if it: “(A) is committed while armed with a deadly weapon; (B) results

       in serious bodily injury to a person other than the confining person; or (C) is

       committed on an aircraft[.]” Id. at § 3(b)(3).


[13]   Thus, to convict Walton of conspiracy to commit criminal confinement as

       charged, the State was required to prove that he, with the intent to commit the

       crime of criminal confinement, agreed with McCullum to commit criminal



       2
         It is no defense to a charge of conspiracy that the person with whom the accused person is alleged to have
       conspired: (1) has not been prosecuted; (2) has not been convicted; (3) has been acquitted; (4) has been
       convicted of a different crime; (5) cannot be prosecuted for any reason; or (6) lacked the capacity to commit
       the crime. Id. at § 2(c).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2908 | October 16, 2019                  Page 6 of 14
       confinement and that either he or McCullum committed one or more of the

       following overt acts: “1) obtain or retain duct tape, 2) obtain or retain zip ties,

       or 3) traveled to [Keihn and Knight’s address on] N. Broadway, Muncie, IN[.]”

       Appellant’s App. p. 31.


[14]   On appeal, Walton claims that there was no evidence to prove that he

       committed any of these overt acts. He is incorrect. First, it was not required to

       prove that Walton personally engaged in any of these overt acts; all that was

       required was proof that either he or the person with whom he agreed, i.e.

       McCullum, committed one or more of these overt acts. See I.C. § 35-41-5-2(b).


[15]   More importantly, the evidence adduced at trial establishes that Walton went

       with McCullum to Knight’s home where they lured Knight to the shop. See Tr.

       Vol. 2, p. 51 (Knight testifying that Walton accompanied McCullum on the

       night they took her to the warehouse); Ex. Vol., State’s Ex. 47 at 41:15

       (Walton’s interview with the police wherein he admits to walking to the house

       on North Broadway with McCullum). Thus, the State proved that Walton

       engaged in an overt act in furtherance of the conspiracy.


[16]   In a one-sentence argument, Walton also claims: “the State must prove not just

       an inference of a Conspiracy but evidence of a mere relationship or association

       between parties is not sufficient.” Appellant’s Br. at 11 (citing Johnson v. State,

       208 Ind. 89, 194 N.E. 619 (1935)). To the extent that Walton means that the

       State failed to prove the existence of an agreement between him and

       McCullum, we find such an argument to be waived for failure to make a cogent


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2908 | October 16, 2019   Page 7 of 14
       argument. See Ind. Appellate Rule 46(A)(8)(a) (“The argument must contain

       the contentions of the appellant on the issues presented, supported by cogent

       reasoning. Each contention must be supported by citations to the authorities,

       statutes, and the Appendix or parts of the Record on Appeal relied on[.]”).

[17]   Waiver notwithstanding, Walton would not prevail, as there was evidence that

       supports a reasonable inference that he and McCullum agreed to confine

       Knight and the others. To establish a conspiracy, the State is not required to

       prove the existence of a formal, express agreement; instead the existence of such

       an agreement can be inferred from circumstantial evidence, including overt acts

       of the parties in furtherance of the criminal act. Wallace v. State, 722 N.E.2d

       910, 913 (Ind. Ct. App. 2000); see also Taylor v. State, 86 N.E.3d 157, 164 (Ind.

       2017) (noting that formal agreement to commit a crime is not required and

       circumstantial evidence implying such an agreement is sufficient to establish a

       conspiracy), reh’g denied.


[18]   Here, Walton and McCullum went to Knight’s home and lured her to the shop.

       The moment she walked into the shop, Walton and McCullum grabbed her and

       tied her hands and feet with zip-ties. It is apparent from their coordinated

       behavior that this was not a spur-of-the-moment decision, but a pre-existing

       plan that they were executing. This circumstantial evidence is sufficient to show

       the existence of an agreement between Walton and McCullum to commit

       criminal confinement. See Purvis v. State, 87 N.E.3d 1119, 1126 (Ind. Ct. App.

       2017) (holding that evidence was sufficient to establish an agreement between

       the co-conspirators to commit theft where the two were together during each

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2908 | October 16, 2019   Page 8 of 14
       trip to the store, they stole the same kinds of items, concealed them in the same

       manner and location, and came and left in the same vehicle), aff’d on reh’g, 96

       N.E.3d 123 (Ind. Ct. App. 2018); Phares v. State, 506 N.E.2d 65, 68 (Ind. Ct.

       App. 1987) (holding that evidence was sufficient to establish an agreement to

       commit robbery based upon the acts of the co-conspirators demonstrating the

       use of tactics and planning, i.e., waiting in the car outside a gas station, entering

       the station with an atlas, asking the attendant for directions as a diversionary

       tactic, and striking the attendant with a tire iron).


[19]   Because there was evidence sufficient to establish that Walton and McCullum

       agreed to commit criminal confinement and that Walton committed an overt

       act in furtherance of the conspiracy, the trial court properly denied Walton’s

       motion for a directed verdict on the conspiracy count.


       B.      Battery

[20]   Walton also claims that the trial court should have granted his motion for

       directed verdicts on Counts 3–6, which alleged aggravated battery. Aggravated

       battery is defined as knowingly or intentionally inflicting injury on a person that

       creates a substantial risk of death or causes serious permanent disfigurement;

       protracted loss or impairment of the function of a bodily member or organ; or

       the loss of a fetus. Ind. Code § 35-42-2-1.5. Walton claims that there was no

       evidence that Knight suffered a substantial risk of death or that he caused the

       protracted loss or impairment of a bodily member or organ. This argument is

       specious.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2908 | October 16, 2019   Page 9 of 14
[21]   Walton used a pneumatic nail gun to shoot nails into Knight’s legs, foot, hip,

       and torso. Walton emphasizes that the State’s own medical witness testified

       that the nails only caused a low risk of death to Knight. But the evidence also

       indicated that Knight had to undergo a six-and-one-half-hour surgery in an

       attempt to remove the nails from her body. The two nails in her hip could not

       be removed and remain in her body. One of the nails also went through an

       artery in her leg. This required an arterial stent to be placed in her leg, and

       Knight must now take aspirin to prevent a blood clot from forming in the stent.

       Some of the nails also caused nerve damage, and now Knight has numbness in

       parts of her body. She also has scars from the nails and the surgery. From this, a

       reasonable jury could conclude that Walton suffered the protracted loss or

       impairment of a bodily member or organ and/or serious permanent

       disfigurement. Thus, the trial court properly denied Walton’s motion for

       directed verdicts on the aggravated battery counts.3




       3
         Although the State charged Walton with aggravated battery, the jury ultimately convicted him of four
       counts of the lesser-included offense of battery with a deadly weapon. To the extent that Walton claims that
       there was insufficient evidence to support his convictions for battery with a deadly weapon, this argument
       also fails. To prove that Walton committed Level 5 battery with a deadly weapon, the State was required to
       prove that he knowingly or intentionally touched Knight in a rude, insolent, or angry manner and committed
       the offense with a deadly weapon. Ind. Code § 35-42-2-1(c), (g). “Deadly weapon” is defined to include “[a]
       destructive device, weapon, device, taser . . . or electronic stun weapon . . . , equipment, chemical substance,
       or other material that in the manner it: (A) is used; (B) could ordinarily be used; or (C) is intended to be used;
       is readily capable of causing serious bodily injury.” Ind. Code § 35-31.5-2-86(a)(2). “Serious bodily injury” is
       defined in turn as: “bodily injury that creates a substantial risk of death or that causes: (1) serious permanent
       disfigurement; (2) unconsciousness; (3) extreme pain; (4) permanent or protracted loss or impairment of the
       function of a bodily member or organ; or (5) loss of a fetus. Ind. Code § 35-31.5-2-292.
       From the evidence that Walton repeatedly shot Knight with a nail gun in multiple parts of her body, the jury
       could conclude that Walton battered Knight with the nail gun. And given the seriousness of Knight’s injuries,
       the jury could reasonably conclude that the nail gun was a deadly weapon because it was used in a manner
       that was readily capable of causing serious bodily injury, i.e., permanent or protracted loss or impairment of

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2908 | October 16, 2019                    Page 10 of 14
                                               II. Double Jeopardy

[22]   Walton next argues that his four convictions for battering Knight with a deadly

       weapon constitute double jeopardy. Walton’s argument is, at best, under-

       developed. He cites only one case, but does not explain how, or under what

       legal test, his convictions constitute double jeopardy. The State argues that

       Walton waived this argument by failing to fully develop it and cite appropriate

       authority. We are inclined to agree. Nevertheless, we often address issues of

       double jeopardy sua sponte. Whitham v. State, 49 N.E.3d 162, 168 (Ind. Ct.

       App. 2015), trans. denied. We will therefore attempt to address Walton’s double

       jeopardy argument as best we can, despite his failure to fully develop his

       argument.4

[23]   As we recently summarized in Smith v. State, 129 N.E.3d 266, 269 (Ind. Ct.

       App. 2019):


                Article 1, Section 14 of the Indiana Constitution provides that
                “[n]o person shall be put in jeopardy twice for the same offense.”
                Two offenses are the same offense for double jeopardy purposes
                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.” Under the actual



       the function of a bodily member or organ. Thus, the evidence was sufficient to support Walton’s convictions
       for battery with a deadly weapon.
       4
         Whether convictions constitute double jeopardy is a pure question of law. Whitham, 49 N.E.3d at 168. To
       the extent that Walton argues that the trial court should have permitted him to argue double jeopardy to the
       jury, this argument is misplaced. A jury may find a defendant guilty on multiple counts that may constitute
       double jeopardy, but the remedy for this is either to not enter judgment of conviction on the offending
       verdicts or to vacate any conviction already entered on the offending verdicts.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2908 | October 16, 2019                Page 11 of 14
                evidence test, “the actual evidence presented at trial is examined
                to determine whether each challenged offense was established by
                separate and distinct facts.” 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.”


       (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)).


[24]   Under the Richardson actual evidence test,5 convictions for two or more offenses

       may constitute double jeopardy if the defendant demonstrates 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 the essential

       elements of the second offense. Chappell v. State, 966 N.E.2d 124, 131 (Ind. Ct.

       App. 2012) (citing Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008)), trans. denied.

       But the fact that the same evidence may have been used to establish a single

       element of each of two or more offenses does not constitute a double jeopardy

       violation. Hines v. State, 30 N.E.3d 1216, 1221 (Ind. 2015) (citing Spivey v. State,

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


[25]   Application of the actual evidence test requires the reviewing court to identify

       the essential elements of each of the challenged crimes and to evaluate the

       evidence from the jury’s perspective. Lee, 892 N.E.2d at 1234. On appeal, we



       5
        The statutory elements test does not apply where multiple charges are based on a single statute. Rexroat v.
       State, 966 N.E.2d 165, 169 (Ind. Ct. App. 2012), trans. denied. Thus, we focus on the actual elements test.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2908 | October 16, 2019                 Page 12 of 14
       therefore consider the essential elements of the offenses, the charging

       information, the jury instructions, the evidence, and the arguments of counsel.

       Id. 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.” Id. at 1236.


[26]   Here, there was no reasonable probability that the actual evidentiary facts used

       by the jury to establish the essential elements of one of Walton’s convictions for

       battery were also used to establish the essential elements of his other

       convictions for battery. The State artfully drafted the battery charges to allege

       separate acts of shooting Knight: in her left leg, right leg, torso, and foot. The

       State presented evidence detailing each of these injuries—both Knight’s

       testimony and the testimony of her treating physician. And, during its closing

       statement to the jury, the State clearly delineated the separate evidence

       supporting each of the battery charges. See Tr. Vol. 3, pp. 32–36. There was

       therefore no reasonable possibility that the jury used the evidentiary facts

       supporting one of Walton’s battery convictions to also support the other battery

       convictions. Accordingly, his battery convictions do not constitute double

       jeopardy under the actual evidence test.


                                                 Conclusion

[27]   The State presented evidence sufficient to support Walton’s conviction for

       conspiracy to commit criminal confinement. Accordingly, the trial court

       properly denied his motion for a directed verdict on this count. The State also

       presented evidence from which a reasonable jury could have concluded that he
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2908 | October 16, 2019   Page 13 of 14
       was guilty of aggravated battery. Therefore, the trial court also properly denied

       his motion for a directed verdict as to the aggravated battery charges. To the

       extent that Walton challenges the sufficiency of the evidence to support his

       convictions on the lesser-included offense of battery with a deadly weapon, this

       argument too fails, as there was evidence showing that the nail gun was used in

       a manner readily capable of causing serious bodily injury. Lastly, Walton’s four

       convictions for battery with a deadly weapon against Knight do not constitute

       double jeopardy under the actual evidence test, as there was no reasonable

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

       elements of one of the battery convictions may also have been used to establish

       the essential elements of the other battery convictions. We therefore affirm the

       judgment of the trial court.


[28]   Affirmed.


       Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2908 | October 16, 2019   Page 14 of 14
