Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                   Dec 08 2014, 5:55 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

PAULA M. SAUER                                      GREGORY F. ZOELLER
Danville, Indiana                                   Attorney General of Indiana

                                                    ERIC BABBS
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                                IN THE
                      COURT OF APPEALS OF INDIANA

JONATHAN MAYNARD,                                   )
                                                    )
        Appellant-Defendant,                        )
                                                    )
                vs.                                 )     No. 32A01-1405-CR-205
                                                    )
STATE OF INDIANA,                                   )
                                                    )
        Appellee-Plaintiff.                         )


                      APPEAL FROM THE HENDRICKS CIRCUIT COURT
                            The Honorable, Jeffrey V. Boles, Judge
                                Cause No. 32C01-1304-FC-37


                                         December 8, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                           Case Summary

        Jonathan Maynard appeals his convictions for Class C felony child molesting, Class C

felony attempted child molesting, and Class B misdemeanor battery. We affirm in part,

reverse in part, and remand.

                                                Issues

        We address one issue, which we restate as whether Maynard’s convictions violated the

prohibition against double jeopardy.1

                                                 Facts

        On March 30, 2013, thirteen-year-old H.W. was visiting Melissa Smith overnight.

Smith had been married to H.W.’s uncle. Thirty-year-old Maynard is Smith’s step-brother

and was living with Smith temporarily. Maynard had never met H.W., but after seeing a

picture of her, Maynard told Smith’s boyfriend that H.W. was “hot.” Tr. p. 320. Later that

evening, H.W.’s friend, A.W., came over to “hang out” with H.W. Id. at 218.

        Late in the evening, Maynard got home. He approached H.W. and kept telling her that

she should say, “hi” to him. Id. at 229. Maynard made H.W. uncomfortable, and she did not

respond. Later, H.W. fell asleep on the couch, and A.W. slept on the floor. H.W. woke up

when Maynard lifted her legs and “slid them up onto the top of the couch.” Id. at 236.

Maynard sat down where H.W.’s legs had been. H.W. moved her legs off of the top of the

couch and onto the middle cushion of the couch. She fell back asleep but woke up when


1
  Maynard also argued that his convictions violated the continuing crime doctrine. We need not address
this issue given our resolution of his double jeopardy argument.


                                                   2
Maynard put his hand down her shirt. H.W. could feel his hand touching her chest just below

her collarbone. H.W. rolled over toward the back of the couch, and Maynard removed his

hand. H.W. later rolled back over, and Maynard put his hand on her thigh. H.W. rolled over

again, and Maynard moved his hand. A few minutes later, she rolled back over, but Maynard

put his hand back down her shirt. Maynard put his hand down her shirt three or four times

over about an hour. On the last occasion, Maynard said, “I’m just going to go to bed.” Id. at

255. The next morning, Smith asked H.W. if she had slept well. H.W. said, “if he wasn’t

putting his hand down my shirt and on my leg I would have been able to sleep fine.” Id. at

256. Smith immediately called the police.

       The State charged Maynard with Class C felony child molesting, Class B

misdemeanor battery, and Class C felony attempted child molesting. The information

regarding the attempted child molesting charge alleged that Maynard attempted to commit

the offense of child molesting by placing “his hand down the front of H.W.’s shirt more than

one time, to-wit: 2-4 times, and/or put his hand on her thigh, which conduct constituted a

substantial step towards the commission of the crime.” Appellant’s App. p. 10. The other

informations did not specify the specific acts alleged to constitute the offenses. At

Maynard’s jury trial, the deputy prosecutor stated during closing arguments that Maynard’s

touching of H.W.’s “hip or chest” constituted battery. Tr. p. 375. As for the child molesting

and attempted child molesting charges, the deputy prosecutor also relied on the allegation

that Maynard had touched H.W.’s chest and hip. The deputy prosecutor argued that the

difference between the child molesting charge and the attempted child molesting charge was

                                             3
whether Maynard’s touching of H.W. reached the point of sexual gratification. During

rebuttal, the deputy prosecutor said, “the only question for you is whether he molested her or

whether he was just trying to molest her.” Tr. p. 396.

       During deliberations, the jury asked the trial court to “clarify the difference between

the charges [of] child molesting and attempted molesting and also . . . what constitutes

battery? Is it one or the other?” Id. at 400. The trial court directed the jury to refer to its

instructions. The jury later asked, “If the defendant is found guilty of charge one can he also

be found guilty of charge three? Or are they independent?” App. p. 125. The trial court

informed the jury, “You may find the defendant not guilty of all three counts or guilty of all

three counts or any combination thereof.” Id. at 126. The jury then found Maynard guilty of

all three charges. At the sentencing hearing, the deputy prosecutor asked the trial court to

make the sentences concurrent “because of the touching and the battery I could see how it

would come out [of] the same incident.” Tr. p. 420. The trial court sentenced Maynard to

concurrent sentences of four years with three years suspended to probation on the Class C

felony child molesting conviction, four years with three years suspended to probation on the

Class C felony attempted child molesting conviction, and 180 days suspended on the battery

conviction. Maynard now appeals.

                                          Analysis

       Maynard argues that his convictions violate the prohibition against double jeopardy.

The Double Jeopardy Clause of the Indiana Constitution provides “[n]o person shall be put in

jeopardy twice for the same offense.” Ind. Const. art. 1, § 14. In Richardson v. State, 717


                                              4
N.E.2d 32 (Ind. 1999), our supreme court concluded that two or more offenses are the same

offense in violation of Article 1, Section 14 if, with respect to either the statutory elements of

the challenged crimes or the actual evidence used to obtain convictions, the essential

elements of one challenged offense also establish the essential elements of another

challenged offense. Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013).

       Maynard first argues that his convictions for both child molesting and attempted child

molesting violate the statutory elements test. The State concedes that a person may not be

convicted of both a crime and an attempt to commit the same crime. Appellee’s Br. p. 6

(citing Ind. Code § 35-41-5-3(b)). Accordingly, we reverse and remand with instructions for

the trial court to vacate Maynard’s conviction for Class C felony attempted child molesting.

       Maynard also argues that his convictions for child molesting and battery violate the

actual evidence test. “Under the actual evidence test, we examine the actual evidence

presented at trial in order to determine whether each challenged offense was established by

separate and distinct facts.” Garrett, 992 N.E.2d at 719. 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.” Id. “The

actual evidence test is applied to all the elements of both offenses.” Id. “‘In other words . . .

the Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing

the essential elements of one offense also establish only one or even several, but not all, of




                                                5
the essential elements of a second offense.’” Id. (quoting Spivey v. State, 761 N.E.2d 831,

833 (Ind. 2002)).

       On appeal, the State argues that the jury could have found that Maynard committed

battery when he moved H.W.’s legs to the top of the couch. Appellee’s Br. p. 8. However,

during closing arguments, the State argued that he was guilty of battery by placing his hand

on H.W.’s thigh or chest. The State also argued that Maynard was guilty of child molesting

for repeatedly placing his hand down H.W.’s shirt and placing his hand on her thigh. We

conclude that the State failed to delineate separate facts that established both offenses.

Maynard has demonstrated a reasonable possibility that the same evidentiary facts were used

to establish the essential elements of both offenses. Accordingly, we reverse and remand

with instructions that the trial court vacate the battery conviction.

                                         Conclusion

       We conclude that Maynard’s convictions for Class C felony attempted child molesting

and Class B misdemeanor battery violate the prohibition against double jeopardy.

Consequently, we reverse and remand with instructions to vacate those convictions. We

affirm Maynard’s conviction for Class C felony child molesting. We affirm in part, reverse

in part, and remand.

       Affirmed in part, reversed in part, and remanded.

BRADFORD, J., and BROWN, J., concur.




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