MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Dec 09 2019, 8:59 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
Anthony S. Churchward                                    Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Keon D. Oakley, Jr.,                                     December 9, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-996
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable David M. Zent,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D05-1810-F3-68



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-996 | December 9, 2019                 Page 1 of 11
                                             Case Summary
[1]   Keon D. Oakley, Jr. (“Oakley”) appeals his convictions for Criminal

      Confinement, as a Level 3 felony,1 and Battery, as a Level 5 felony.2 We affirm

      in part, reverse in part, and remand with instructions to enter judgment upon

      the Level 5 felony Battery as a Class B misdemeanor and resentence Oakley

      accordingly.



                                                    Issues
[2]   Oakley presents two re-stated issues for review:


                 I.           Whether the State presented sufficient evidence to rebut
                              his claim of self-defense; and


                 II.          Whether the Criminal Confinement enhancement and the
                              Battery enhancement were based upon the same facts.


                                   Facts and Procedural History
[3]   In August of 2018, Oakley and T.W. were romantically involved and T.W. was

      pregnant. On August 6, 2018, T.W. was driving to work with Oakley as a

      passenger when the two began to argue. Oakley punched T.W. repeatedly and

      “pinned her up against the car door.” (Tr. Vol. I, pg. 49.) At some point, T.W.




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


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-996 | December 9, 2019    Page 2 of 11
      lost consciousness. When she regained consciousness, Oakley was sitting on

      her and driving her vehicle.


[4]   Later, Oakley forced T.W. into the passenger seat and began to drive from Fort

      Wayne, Indiana to Chicago, Illinois, where he purportedly expected T.W. to

      comply with his preference that she terminate the pregnancy. Oakley

      periodically stopped and exited the vehicle but did not allow T.W. to exit; he

      retained possession of her cell phone and car keys. After arriving at the home

      of his relatives in Chicago, Oakley returned T.W.’s cell phone to her. However,

      he maintained close proximity to T.W. He followed her to the bathroom and

      slept with her car keys in his possession. T.W. refused to cede to Oakley’s

      demand for an abortion, and the pair returned to Fort Wayne.


[5]   At approximately 5:00 p.m. on August 7, 2018, T.W. entered a convenience

      store and asked an employee to call 9-1-1. The employee handed a telephone to

      T.W. and advised that she could call from the store bathroom. First, T.W.

      called her mother, Monica Walker (“Walker”); based upon that conversation,

      Walker called 9-1-1 to report that her pregnant daughter had been kidnapped

      and beaten. T.W. then called 9-1-1 to report that she was hiding in a store

      bathroom and requesting help in getting out “without making a scene.” (State’s

      Ex. 2.)


[6]   Fort Wayne Police Officer Ryan Rockey responded, and was directed to the

      convenience store bathroom. He encountered T.W., who was “crying, fearful,

      afraid, and nervous.” (Tr. Vol. I, pg. 90.) Officer Rockey observed that T.W.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-996 | December 9, 2019   Page 3 of 11
      had numerous injuries, including facial bruises on both cheeks, bruises on both

      arms, scratches on her back and forehead, and chest bruising. When Walker

      arrived and transported T.W. to a nearby hospital, Officer Rockey followed

      them. At the emergency room, Officer Rockey took photographs of T.W.’s

      injuries and her broken glasses. Officer Anthony Maurer recovered T.W.’s

      vehicle, unlocked and abandoned at a business location, with the keys inside.


[7]   On October 17, 2018, the State charged Oakley with Criminal Confinement,

      Battery, and Strangulation. Subsequently, the State filed a habitual offender

      allegation. Oakley was brought to trial on February 19, 2019.


[8]   T.W. testified that she had been the aggressor, she had struck Oakley

      repeatedly, and he had struck her once to defend himself and pushed her

      against the vehicle door to stop her continued aggression. In light of this

      testimony, Oakley requested and received a jury instruction on self-defense.

      The jury found Oakley guilty of Criminal Confinement and Battery, but

      acquitted him of Strangulation. Oakley was also adjudicated a habitual

      offender.


[9]   On March 12, 2019, Oakley was sentenced to ten years imprisonment for

      Criminal Confinement, enhanced by thirteen years due to his status as a

      habitual offender. He was given a consecutive sentence of five years for

      Battery, resulting in an aggregate sentence of twenty-eight years. Oakley now

      appeals.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-996 | December 9, 2019   Page 4 of 11
                                 Discussion and Decision
                                  Sufficiency of the Evidence
[10]   Pursuant to Indiana Code Section 35-42-3-3(a), a “person who knowingly or

       intentionally confines another person without the other person’s consent

       commits criminal confinement,” as a Level 6 felony. The offense is a Level 3

       felony when it results in serious bodily injury to a person other than the

       confining person. I.C. § 35-42-3-3(b). To “confine” a person means to

       “substantially interfere with the liberty of the person.” I.C. § 35-42-3-1.


[11]   Pursuant to Indiana Code Section 35-42-2-1(c)(1), a person commits battery, as

       a Class B misdemeanor, when he knowingly or intentionally touches another

       person in a rude, insolent, or angry manner. Battery is a Level 5 offense if it

       results in bodily injury to a pregnant woman if the batterer knew of the

       pregnancy. I.C. § 35-42-2-1(g)(3).


[12]   “Bodily injury” is “any impairment of physical condition, including physical

       pain.” I.C. § 35-31.5-2-29. “Serious bodily injury” is “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 a bodily member or organ; or (5) loss of a fetus.” I.C. § 35-31.5-

       2-292.


[13]   Oakley contends that there is insufficient evidence to support his convictions

       because witnesses other than T.W. lacked first-hand knowledge of the events,

       and T.W. testified that Oakley acted in self-defense. When reviewing the
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-996 | December 9, 2019   Page 5 of 11
       sufficiency of the evidence, we do not reweigh the evidence nor do we judge the

       credibility of the witnesses. Alkhalidi v. State, 753 N.E.2d 625, 627 (Ind. 2001).

       Considering only the probative evidence and reasonable inferences supporting

       the verdict, we affirm the conviction if the probative evidence and reasonable

       inferences therefrom could have allowed the jury to find a defendant guilty

       beyond a reasonable doubt. Id. A conviction can be sustained on the

       uncorroborated testimony of a victim; however, when a victim recants, a

       conviction may not rest on a repudiated out-of-court statement unless there is

       substantial independent evidence of probative value from which the jury could

       find that the repudiated statement is credible. Chambless v. State, 119 N.E.3d

       182, 193 (Ind. Ct. App. 2019) (citing Peckinpaugh v. State, 447 N.E.2d 576, 581

       (Ind. 1983)).


[14]   Here, T.W. partially repudiated the out-of-court statements she made during

       her 9-1-1 call, at the emergency room, and to investigating officers. At trial, she

       denied that Oakley hit her multiple times with a closed fist or that he had

       transported her to Chicago against her will. Rather, she claimed that Oakley

       struck her once in self-defense and pinned her against a vehicle window to stop

       her aggression.


[15]   A valid claim of defense of oneself or another person is legal justification for an

       otherwise criminal act. Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002). To

       prevail on a self-defense claim, the defendant must show that he (1) was in a

       place where he had a right to be; (2) did not provoke, instigate, or participate



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-996 | December 9, 2019   Page 6 of 11
       willingly in the violence; and (3) had a reasonable fear of death or great bodily

       harm. McEwen v. State, 695 N.E.2d 79, 90 (Ind. 1998).


[16]   When a claim of self-defense is raised and supported by evidence, the State

       bears the burden of negating at least one of the essential elements. Wilson, 770

       N.E.2d at 800. If the defendant is convicted despite a claim of self-defense, the

       conviction will be reversed on appeal only if no reasonable person could say

       that self-defense was negated by the State beyond a reasonable doubt. Id. “In

       any event, a mutual combatant, whether or not the initial aggressor, must

       declare an armistice before he or she may claim self-defense.” Id. The standard

       of review for a challenge to the sufficiency of evidence to rebut a claim of self-

       defense is the same as the standard for any other sufficiency of the evidence

       claim. Id.


[17]   In addition to the 9-1-1 calls from T.W. and Walker, the State offered testimony

       from individuals who had assisted T.W. Walker testified that T.W. called her

       “panicking” and when Walker arrived at the convenience store, she saw T.W.

       with a towel over her face, as if attempting to hide her injuries. (Tr. Vol. I, pg.

       73.) According to Walker, “[T.W.’s] face looked black and green, her lips was

       [sic] busted open, she had a black eye.” Id. at 76. Walker drove T.W. to a

       hospital, where she was treated by Dr. Nicholas Gould. Dr. Gould testified

       that T.W. reported having been struck multiple times and rendered

       unconscious. He diagnosed T.W. as having a concussion and multiple

       contusions, and he prescribed narcotic pain medication.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-996 | December 9, 2019   Page 7 of 11
[18]   Officer Ryan Rockey testified that he took photographs of injuries evident on

       T.W. when she was admitted to the hospital emergency room. He testified that

       the photographs admitted into evidence depicted the following injuries to T.W.:

       brow scratches, an abrasion on the left cheek, a lip abrasion, a chest bruise, a

       scratch on the back between the shoulder blades, a blood shot left eye, redness

       around the right eye, and multiple bruises on the upper and lower portions of

       both arms. According to the testimony of Officer Rockey and Detective Robert

       Warstler, T.W. initially had reported the following events: Oakley had

       punched her repeatedly with a closed fist; he pushed her head into a car door

       and caused her to lose consciousness; and he took possession of the car keys

       and drove while sitting on T.W.’s unconscious body.


[19]   Despite Oakley’s insistence that only T.W.’s in-court testimony is worthy of

       credit, we will not reweigh the evidence or judge witness credibility. Alkhalidi,

       753 N.E.2d at 627. There is probative evidence from which the jury could have

       concluded beyond a reasonable doubt that Oakley battered and criminally

       confined T.W. and that she sustained serious bodily injury. As for the jury’s

       rejection of Oakley’s claim of self-defense to legally justify his conduct, there is

       evidence such that “a reasonable person could say that self-defense was negated

       by the State beyond a reasonable doubt.” Wilson, 770 N.E.2d at 800. T.W.,

       who was pregnant and seeking refuge in a convenience store bathroom, had

       various injuries over much of her body. The severity of the injuries is

       inconsistent with a claim that Oakley reasonably feared great bodily harm to




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-996 | December 9, 2019   Page 8 of 11
       himself and struck a single blow in self-defense. His challenge to the sufficiency

       of the evidence fails.


                     Double Jeopardy – Elevation of Offenses
[20]   Article 1, Section 14 of the Indiana Constitution provides, “No person shall be

       put in jeopardy twice for the same offense.” We analyze alleged violations of

       Indiana’s Double Jeopardy Clause pursuant to our supreme court’s opinion in

       Richardson v. State, 717 N.E.2d 32 (Ind. 1999). In Richardson, our supreme court

       held that two or more offenses are the “same offense” in violation of Article 1,

       Section 14 of the Indiana Constitution, “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.” 717 N.E.2d at 49 (emphasis in original).

       Under the “actual evidence” test, a defendant must demonstrate 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 all of the

       essential elements of a second challenged offense. Id. at 53.


[21]   We consider the essential elements of the offenses, the charging information,

       the jury instructions, the evidence, and the arguments of counsel in our

       determination of whether there is a “reasonable possibility” that multiple

       convictions rest upon the same evidentiary facts. Lee v. State, 892 N.E.2d 1231,

       1234 (Ind. 2008). Here, Oakley argues only that the multiple enhancements of

       his offenses rest upon the same evidentiary facts.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-996 | December 9, 2019   Page 9 of 11
[22]   Frequently discussed under the general rubric of Indiana double jeopardy

       jurisprudence, we recognize rules of statutory construction and common law

       that are in addition to the protections afforded by the Indiana Double Jeopardy

       Clause. Zieman v. State, 990 N.E.2d 53, 61 (Ind. Ct. App. 2013). One

       prohibition is against “conviction and punishment for an enhancement of a

       crime where the enhancement is imposed for the very same behavior or harm as

       another crime for which the defendant has been convicted and punished.”

       Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002).


[23]   Here, the charging information stated the elements of the crimes but did not

       include details to indicate which facts supported the individual charges. The

       State alleged and demonstrated that T.W. had sustained serious bodily injury

       but did not, in closing, attribute a specific injury to a specific crime. Our review

       of the evidence discloses that Oakley struck T.W. and pinned her against a

       vehicle door. Bruises and abrasions were visible to T.W.’s mother, responding

       police officers, and treating physician. She reported having lost consciousness

       and was diagnosed with a concussion. But T.W.’s limited testimony, recanting

       much of her prior reports, did not clarify the causation or timing of a specific

       injury. The evidence of record does not indicate whether or not T.W. sustained

       injury during confinement separate from injury during battery. The jury was

       invited to base both enhancements upon the same evidentiary facts.


[24]   Multiple enhancements based upon the same facts cannot stand, and we may

       reduce one of the offenses to obviate double jeopardy concerns. Caldwell v.

       State, 43 N.E.3d 258, 269 (Ind. Ct. App. 2015). As Battery is the offense having

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-996 | December 9, 2019   Page 10 of 11
       lesser penal consequences, we elect to revise the Battery offense to a Class B

       misdemeanor. See Thompson v. State, 82 N.E.3d 376, 383 (Ind. Ct. App. 2017)

       (recognizing that a reviewing court may remedy a violation by reducing either

       conviction to a less serious form of the same offense if doing so will eliminate

       the violation).



                                               Conclusion
[25]   There is sufficient evidence to support Oakley’s conviction for Criminal

       Confinement, as a Level 3 felony. However, to obviate double jeopardy

       concerns, we reduce the Battery conviction to a Class B misdemeanor.


[26]   Affirmed in part, reversed in part, and remanded.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-996 | December 9, 2019   Page 11 of 11
