MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Mar 28 2018, 5:18 am
regarded as precedent or cited before any
court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
P. Stephen Miller                                        Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Angela N. Sanchez
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert L. Allen,                                         March 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1703-CR-481
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D04-1610-F5-312



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-481 | March 28, 2018           Page 1 of 11
                                           Statement of the Case
[1]   Robert L. Allen (“Allen”) appeals his convictions for Level 5 felony domestic

      battery1 and Level 6 felony domestic battery.2 He argues that: (1) the trial court

      erred when it denied his motion for directed verdict on his Level 5 felony

      domestic battery charge; (2) the trial court committed fundamental error when

      it instructed the jury; and (3) his convictions violated the continuous crime

      doctrine. Because we are not persuaded by Allen’s arguments, we affirm the

      trial court’s decision.


[2]   We affirm.


                                                    Issues
                 1. Whether the trial court erred when it denied Allen’s motion for
                    directed verdict.

                 2. Whether the trial court committed fundamental error when it
                    instructed the jury.

                 3. Whether Allen’s convictions violated the continuous crime
                    doctrine.

                                                     Facts
[3]   In October of 2016, Allen had been living with his girlfriend, Stephanie Phillips

      (“Phillips”) for two months. On the night of October 25, Phillips was in bed

      when Allen came into the bedroom and “just went off” and began “screaming



      1
          IND. CODE § 35-42-2-1.3(c)(2).
      2
          I.C. § 35-42-2-1.3(b)(3).


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      and yelling” at her. (Tr. Vol. 2 at 162). Phillips had a butcher knife beside her

      bed, and Allen picked up the knife and began “swinging it around at [Phillips]

      and threatening [her] life with [it].” (Tr. Vol. 2 at 162). Allen also punched

      Phillips and put her into a chokehold.


[4]   When Phillips escaped to the living room, Allen pinned her against the wall

      and on the floor by placing a baseball bat that she normally kept by the front

      door “on her shoulders.” (Tr. Vol. 2 at 180). He also choked her with the

      baseball bat. In total, Allen’s attack lasted for “over an hour.” (Tr. Vol. 2 at

      165). Phillips later described that Allen “just kept coming at [her] . . . throwing

      punches and swinging fists and swinging the bat around.” (Tr. Vol. 2 at 165).

      At one point, Allen choked Phillips’ throat with his hands.


[5]   When Allen stopped attacking Phillips, she spent half an hour asking him to let

      her leave to take care of the blood on her face. Finally, Allen let her leave, and

      she went to a friend’s house to call the police. An officer that arrived to the

      scene observed that Phillips had a cut over her left eye, blood on her face, “fresh

      red marks,” bruising on her face and neck, and a cut on one of her hands. (Tr.

      Vol. 2 at 205). He also found a baseball bat that had blood on it in the hallway

      of Phillip’s house and a wet rag with blood on it in the bathroom.


[6]   On October 31, 2016, the State charged Allen with Count 1, Level 5 felony

      domestic battery; Count 2, Level 6 felony domestic battery; and Count 3, Level

      6 felony strangulation. The trial court held a jury trial on January 11 and 12,

      2017. At the conclusion of the presentation of evidence, Allen moved for a


      Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-481 | March 28, 2018   Page 3 of 11
      directed verdict on his Level 5 felony domestic battery charge. He argued that

      the State had not presented any evidence that the baseball bat he had used

      qualified as a deadly weapon as required to convict him of the charge. The trial

      court denied the motion, reasoning that the question of whether the baseball bat

      qualified as a deadly weapon was an issue of fact for the jury to decide.


[7]   The trial court then instructed the jury, and Allen did not object to the jury

      instructions. The jury subsequently found Allen guilty as charged. The trial

      court entered judgments of conviction on Counts 1 and 2 but vacated Count 3

      on double jeopardy grounds. The trial court sentenced Allen to six (6) years on

      Count 1 and two (2) years on Count 2, with the sentences to be served

      consecutively. Allen now appeals.


                                                  Decision
[8]   On appeal, Allen argues that: (1) the trial court erred when it denied his motion

      for directed verdict; (2) the trial court committed fundamental error when it

      instructed the jury; and (3) his convictions violated Indiana’s continuous crime

      doctrine. We will address each of these arguments in turn.


      1. Directed Verdict


[9]   First, Allen asserts that the trial court erred when it denied his motion for

      directed verdict on his Level 5 felony domestic battery charge. Indiana Trial

      Rule 50(A) governs motions for directed verdicts, which are also called motions

      for judgment on the evidence. Trial Rule 50(A) provides:


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               Where all or some of the issues in a case tried before a 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 . . . .


       When a defendant moves for a directed verdict, the court is required to

       withdraw the issue from the jury 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. T.R.

       50(A); Garcia v. State, 979 N.E.2d 156, 157 (Ind. Ct. App. 2012).


[10]   On appeal, we use the same standard of review as the trial court in determining

       the propriety of a directed verdict. Garcia, 979 N.E.2d at 158. We must “‘view

       the evidence in a light most favorable to the party against whom [a directed

       verdict] would be entered.’” Id. (quoting State v. Taylor, 863 N.E.2d 917, 919

       (Ind. Ct. App. 2007)). We may “‘not invade the province of the jury by

       weighing the evidence presented or the credibility of witnesses.’” Id. (quoting

       Taylor, 863 N.E.2d at 919). A defendant’s motion for directed verdict should

       not be granted if the State presents a prima facie case. Id.


[11]   Here, Allen argues that the trial court should have granted his motion for

       directed verdict because there was no evidence that he used a deadly weapon as

       required for a Level 5 felony domestic battery conviction. Specifically, he

       contends that there was no evidence that the baseball bat he was charged with

       using constituted a deadly weapon.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-481 | March 28, 2018   Page 5 of 11
[12]   Under INDIANA CODE § 35-42-2-1.3, a person commits domestic battery if he

       “knowingly or intentionally . . . touches a family or household member in a

       rude, insolent, or angry manner[.]” The offense is a Level 5 felony if it is

       committed “with a deadly weapon.” I.C. § 35-42-2-1.3(c)(2). INDIANA CODE §

       35-31.5-2-86(a)(2) defines “deadly weapon” to mean, among other definitions,

       a “weapon, device . . . 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.” “Serious bodily injury,” in turn, is “bodily

       injury that creates a substantial risk of death or that causes: (1) serious

       permanent disfigurement; (2) unconsciousness; (3) extreme pain . . . .” I.C. §

       35-31.5-2-292.


[13]   We have previously noted that the definition of deadly weapon is broad and

       fact-sensitive. Burgh v. State, 79 N.E.3d 955, 957 (Ind. Ct. App. 2017). We

       have repeatedly stated that whether an object is a “deadly weapon” on a given

       set of facts is determined from the nature of the object, the manner of its use,

       and the circumstances of the case. Id. We do not consider the original purpose

       of the object but, rather, the manner in which the defendant actually used it. Id.

       (finding that pavement was a deadly weapon when the defendant struck the

       victim’s head on the pavement). In Craeger v. State, 737 N.E.2d 771 (Ind. Ct.

       App. 2000), trans. denied, we found that a baseball bat was a deadly weapon

       when the defendant used it to strike a person and a door. Likewise, in Corder v.

       State, 467 N.E.2d 409, 412 (Ind. 1984), our supreme court held that a bat was a

       deadly weapon when the defendant struck a person across the head with it.


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[14]   Based on this standard and precedent, we conclude that there was sufficient

       evidence that Allen used his baseball bat in a manner that it constituted a

       deadly weapon. Phillips testified that Allen choked her with the baseball bat

       and that he “just kept coming at [her] . . . swinging the bat around.” (Tr. Vol. 2

       at 165). In the manner that Phillips used the bat, it was clearly “readily capable

       of causing serious bodily injury” as defined in INDIANA CODE § 35-31.5-2-292.


[15]   Because there was sufficient evidence that Allen used the baseball bat in a

       manner that it constituted a deadly weapon, the record was not devoid of

       evidence of that element of his offense. Therefore, we conclude that the trial

       court did not err when it denied Allen’s motion for directed verdict. See Garcia,

       979 N.E.2d at 157 (noting that the court is required to withdraw the issue from

       the jury if the record is devoid of evidence on one or more elements of the

       offense.


       2. Jury Instructions


[16]   In a related argument, Allen asserts that the jury was not able to make the

       factual determination regarding whether his baseball bat constituted a deadly

       weapon because the trial court failed to properly instruct the jury. Specifically,

       he contends that, although the trial court’s final jury instructions included the

       definition of “deadly weapon,” the trial court did not include a definition of

       “serious bodily injury,” which is part of the definition of deadly weapon. See

       I.C. § 35-31.5-2-86(a)(2).




       Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-481 | March 28, 2018   Page 7 of 11
[17]   In order to preserve an objection to a trial court’s jury instructions for appeal, a

       defendant must generally make a contemporaneous objection to the instruction.

       McKinley v. State, 45 N.E.3d 25, 28 (Ind. Ct. App. 2015), reh’g denied, trans.

       denied. Because Allen failed to object to the trial court’s jury instructions during

       trial, he concedes that he must establish that the trial court’s failure to instruct

       the jury on the definition of “serious bodily injury” was a fundamental error.

       The fundamental error exception to the contemporaneous objection rule is

       extremely narrow and provides the defendant with a remedy only when an

       error constitutes a blatant violation of basic due process principles and the harm

       or potential for harm is substantial. Kadrovach v. State, 61 N.E.3d 1241, 1243

       (Ind. Ct. App. 2016), trans. denied. When determining whether a fundamental

       error has occurred with respect to an allegedly improper jury instruction, we do

       not examine the instruction in isolation but rather in the context of all relevant

       information presented to the jury, including closing argument and other

       instructions. Id. “‘[W]here all such information, considered as a whole, does

       not mislead the jury as to the correct understanding of the law,’ there is no due

       process violation and thus no fundamental error.” Id. (quoting McKinley, 45

       N.E.3d at 28-29).


[18]   In Clemons v. State, 83 N.E.3d 104, 108 (Ind. Ct. App. 2017), trans. denied, we

       recently addressed the issue of whether a trial court committed fundamental

       error by instructing the jury on the definition of “deadly weapon” but not the

       definition of “serious bodily injury.” There, we noted that “serious bodily

       injury” was not an element of the challenged offense—battery with a deadly


       Court of Appeals of Indiana | Memorandum Decision 02A03-1703-CR-481 | March 28, 2018   Page 8 of 11
       weapon—even though it was a part of the definition of “deadly weapon.” Id. at

       107. As a result, “the focus [was] on the instrumentality used and its potential

       for harm, not the harm actually inflicted.” Id. at 108.


[19]   As for the jury’s ability to determine whether an instrumentality could inflict

       serious bodily injury, absent a definition of serious bodily injury, we noted that:


               When determining whether an element of an offense has been
               proven, the jury may rely on its collective sense and knowledge
               acquired through everyday experiences—indeed, that is precisely
               what is expected of a jury. The trial court has a duty to give
               further instructions defining words used in other instructions only
               if the words are of a technical or legal meaning normally not
               understood by jurors unversed in the law. We do not doubt that
               in some contexts, “serious bodily injury” may require further
               definition. But whatever its precise statutory definition, the
               phrase is quite readily understood by the average layman to mean
               some injury short of death.


       Id. We concluded that the jury was able to determine “based on its collective

       common sense and everyday experiences” that the metal rod that the defendant

       used to batter his victim in Clemons was a deadly weapon capable of causing

       serious bodily injury. Id.


[20]   Likewise, we conclude here that the jury was able to use its collective common

       sense and everyday experiences to be able to determine that the baseball bat was

       capable of causing serious bodily injury. As in Clemons, serious bodily injury

       was not an element of Allen’s offense. The jury needed only to determine “the

       instrumentality used and its potential for harm.” Id. Because the jury was able


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       to do so through common sense, the trial court did not commit fundamental

       error by failing to instruct the jury on the definition of serious bodily injury.

       See, e.g., Clemons, 83 N.E.3d at 108.


       3. Continuous Crime Doctrine


[21]   Allen also argues that his two domestic battery convictions violated the

       continuous crime doctrine because they were so close in time that they

       amounted to only a single chargeable crime. The continuous crime doctrine

       establishes that “actions that are sufficient 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.” Pugh v. State, 52

       N.E.3d 955, 970 (Ind. Ct. App. 2016), trans. denied. The doctrine applies “only

       where a defendant has been charged multiple times with the same ‘continuous’

       offense.” Hines v. State, 30 N.E.3d 1216, 1220 (Ind. 2015) (emphasis added)

       (holding that the continuous crime doctrine did not apply where the defendant

       was charged with battery and criminal confinement, not multiple charges of

       battery nor multiple charges of criminal confinement, because battery and

       criminal confinement were not the same offense).


[22]   Here, Count 1 of the charging information alleged that Allen “did[,] while

       armed with a deadly weapon, to wit: a baseball bat, knowingly or intentionally

       touch Stephanie Phillips, who is a family or household member, in a rude,

       insolent, or angry manner . . . .” (App. Vol. 2 at 14). Count 2 of the charging

       information alleged that he “did knowingly or intentionally touch[] Stephanie


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       Phillips, who is a family or household member, in a rude insolent or angry

       manner resulting in moderate bodily injury . . . .” (App. Vol. 2 at 15).

       Accordingly, Allen was charged with two distinct offenses—committing

       domestic battery with his hands and causing moderate bodily injury and,

       separately, committing domestic battery with a deadly weapon, a baseball bat.

       These were two separate and distinct offenses that occurred in different

       locations—the bedroom and living room—over the course of an hour. The

       continuous crime doctrine did not apply.3


[23]   Affirmed


       May, J., and Brown, J., concur.




       3
         Similarly, Allen argues that his convictions violated the federal constitutional prohibition on double
       jeopardy because they were two punishments for a single offense arising from one set of operative
       circumstances. However, this argument also fails because Allen was convicted of two distinct offenses.
       Under federal law, two offenses are different, for double jeopardy purposes, whenever each contains an
       element that the other does not. Lewis v. U.S., 523 U.S. 155, 176 (1998). Here, Allen’s Level 5 felony
       domestic battery charge contained an element that he used a deadly weapon, and his Level 6 felony domestic
       battery charge contained an element that his battery resulted in moderate bodily injury. I.C. § 35-42-2-
       1.3(c)(2); I.C. § 35-42-2-1.3(b)(3). Thus, they were distinct offenses, and his convictions did not violate the
       prohibition against double jeopardy.

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