MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Feb 21 2017, 10:20 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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz &                                   Attorney General of Indiana
Magrath, LLP
                                                         Lyubov Gore
Madison, Indiana                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ivan Gooden, Jr.,                                        February 21, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         15A01-1603-CR-593
        v.                                               Appeal from the Dearborn Circuit
                                                         Court
State of Indiana,                                        The Honorable James D.
Appellee-Plaintiff                                       Humphrey, Judge
                                                         Trial Court Cause No.
                                                         15C01-1501-F1-1



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A01-1603-CR-593 | February 21, 2017        Page 1 of 5
[1]   Ivan Gooden, Jr., appeals his convictions for Criminal Confinement,1 a Level 3

      felony, and Aggravated Battery,2 a Level 3 felony. He argues that his

      convictions violate the prohibition against double jeopardy and that his

      sentences should not be run consecutively. Finding no violation of the

      prohibition against double jeopardy or any other error, we affirm.


                                                     Facts
[2]   Gooden and Nicholl Lunsford were coworkers who became romantically

      involved in December 2014. The couple and Lunsford’s teenage son moved

      into an apartment together. One week after moving in together, Gooden

      choked Lunsford until she lost consciousness. A week after that, Gooden again

      choked Lunsford unconscious; this time, she fell on her face and suffered two

      black eyes. After another attack, Lunsford’s son called the police, but Gooden

      threatened to “burn [her] daughter’s house down with [her] grandbabies”

      inside, tr. p. 126; when the police arrived, Lunsford recanted her story.


[3]   On January 22, 2015, Lunsford was looking for a pen. She asked Gooden

      whether he had moved it. They began arguing over the pen, and when

      Lunsford yelled back, Gooden angrily accused her of “trying to get the white

      people . . . that live next door” to get him in trouble. Tr. p. 93, 141. He

      grabbed her and choked her unconscious, allowing her to fall onto the floor,




      1
          Ind. Code § 35-42-3-3.
      2
          I.C. § 35-42-2-1.5.


      Court of Appeals of Indiana | Memorandum Decision 15A01-1603-CR-593 | February 21, 2017   Page 2 of 5
      which resulted in Lunsford chipping her teeth. Gooden then dragged her by her

      ankles to the bedroom. Lunsford regained consciousness, but Gooden placed

      her on the bed, got on top of her, and began choking her again. He placed a

      pillow over her face and told her that she was going to die. Over the course of

      an hour, Lunsford lost consciousness at least two more times as Gooden

      attacked her. In addition to the broken teeth and loss of consciousness,

      Lunsford suffered a bruise on her hip, bruises on her elbow, a concussion,

      marks around her neck, and swelling above her eyebrow.


[4]   Lunsford’s friend came by the apartment shortly thereafter and was eventually

      able to call the police. Gooden was arrested and on January 26, 2015, was

      charged with attempted murder, criminal confinement, and was alleged to be a

      habitual offender. The State later amended the charging information to include

      a count of aggravated battery.


[5]   After a December 14-18, 2015, bifurcated jury trial, the jury found Gooden

      guilty of criminal confinement and aggravated battery, but not guilty of

      attempted murder. Gooden admitted to being an habitual offender. The trial

      court held a sentencing hearing on January 28, 2016, and February 12, 2016,

      and sentenced Gooden to sixteen years for the criminal confinement conviction

      and fourteen years for the aggravated battery conviction, with those sentences

      to run consecutively, plus an additional twenty years for being an habitual

      offender. Gooden now appeals.




      Court of Appeals of Indiana | Memorandum Decision 15A01-1603-CR-593 | February 21, 2017   Page 3 of 5
                                   Discussion and Decision
[6]   Gooden argues that his convictions violate the prohibition against double

      jeopardy. Article 1, Section 14 of the Indiana Constitution provides, “No

      person shall be put in jeopardy twice for the same offense.” Our Supreme

      Court has explained 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. Richardson v.

      State, 717 N.E.2d 32, 49 (Ind. 1999). As long as “each conviction require[s]

      proof of at least one unique evidentiary fact,” no violation of the actual

      evidence test occurs. Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002).


[7]   A person commits Level 3 felony aggravated battery by knowingly or

      intentionally inflicting injury on a person that causes protracted loss or

      impairment of the function of a bodily member or organ. I.C. § 35-42-2-1.5(2).

      A person commits Level 3 felony criminal confinement by knowingly or

      intentionally confining another person, without that person’s consent, and

      causing a serious bodily injury. I.C. § 35-42-3-3(b)(2)(B). Here, the State

      presented evidence that Gooden choked Lunsford unconscious and then

      allowed her unconscious body to fall to the ground, where she chipped her

      teeth. Having completed that act, Gooden then dragged Lunsford by her ankles

      to the bedroom, where he immobilized her by sitting on top of her and choked

      her until she again lost consciousness at least two more times. Gooden

      committed two separate crimes, distinct in time, location, and evidence offered

      Court of Appeals of Indiana | Memorandum Decision 15A01-1603-CR-593 | February 21, 2017   Page 4 of 5
       as proof. Accordingly, his convictions do not violate the “same offense” test,

       nor do they violate the prohibition against double jeopardy.


[8]    Gooden also argues that “it was improper to give him consecutive sentences for

       the two offenses that were based upon the same factual storyline.” Appellant’s

       Br. p. 12. It is well settled that the trial court may consider whether terms of

       imprisonment shall be served concurrently or consecutively. Ind. Code § 35-50-

       1-2. “[W]ith a few exceptions, it is within the trial court’s discretion whether to

       order sentences to be served concurrently or consecutively.” Myers v. State, 27

       N.E.3d 1069, 1082 (Ind. 2015).


[9]    Gooden perpetrated a brutal assault on his girlfriend, which resulted in broken

       teeth, bruises, and multiple losses of consciousness. The trial court also noted

       that Gooden has a significant prior criminal history. We cannot say that the

       trial court erred by ordering Gooden’s sentences to run consecutively.


[10]   The judgment of the trial court is affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1603-CR-593 | February 21, 2017   Page 5 of 5
