MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any
                                                                       Aug 20 2019, 6:14 am
court except for the purpose of establishing
the defense of res judicata, collateral                                     CLERK
                                                                        Indiana Supreme Court
estoppel, or the law of the case.                                          Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark K. Leeman                                           Curtis T. Hill, Jr.
Leeman Law Office and Cass County                        Attorney General
Public Defender
Logansport, Indiana                                      Josiah Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Travis Lee Evans,                                        August 20, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2895
        v.                                               Appeal from the Cass Superior
                                                         Court
State of Indiana,                                        The Honorable Richard A.
Appellee-Plaintiff                                       Maughmer, Judge
                                                         Trial Court Cause No.
                                                         09D02-1709-F1-4



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2895 | August 20, 2019                 Page 1 of 9
                                                 Case Summary
[1]   Travis Evans appeals his convictions for two counts of class A felony child

      molesting and two counts of level 1 felony child molesting, following a jury

      trial.1 He asserts that his convictions violate state constitutional double

      jeopardy principles. We disagree and affirm.


                                     Facts and Procedural History
[2]   In 2009, Laura Gault began dating Evans. Gault’s daughter, P.F., was eight

      years old at the time. In September of that year, Gault, P.F., and one of P.F.’s

      siblings moved into a home in Walton with Evans and his two children.

      During the time they lived in Walton, Evans entered P.F.’s bedroom on

      multiple occasions and rubbed her breasts and vagina. This was the beginning

      of Evans and P.F. having a “boyfriend/girlfriend relationship.” Tr. Vol. 3 at

      80.


[3]   In the summer of 2012, the entire family moved to an A-frame house in

      Logansport, and that is when Evans’s “physical touching” of P.F. “escalated.”

      Id. at 84. Just before the beginning of P.F.’s seventh-grade school year, when

      P.F. was twelve years old, thirty-eight-year-old Evans compelled P.F. to have

      sexual intercourse with him. Then on a separate occasion when P.F. was in

      seventh grade and still living in the A-frame house, Evans compelled P.F. to

      submit to cunnilingus for the first time. On yet another date, P.F. was



      1
          Evans was convicted of a total of eleven counts. He now appeals four of those convictions.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2895 | August 20, 2019                  Page 2 of 9
      compelled to perform fellatio on Evans for the first time. After submitting to

      cunnilingus on the first occasion, P.F. was “definitely” required to submit to

      cunnilingus “every time” either before or after she and Evans had sexual

      intercourse. Id. at 86. After being compelled to perform fellatio for the first

      time, P.F. was “usually” compelled to perform fellatio on Evans during their

      sexual encounters, but this did not happen every single time. Id. at 87.


[4]   From the summer of 2013 until September 2013, Evans compelled P.F. to

      submit to a combination of intercourse, cunnilingus, and fellatio approximately

      “twice a weekend.” Id. at 93, 95. From September 2013 through the end of

      September 2014, Evans compelled P.F. to submit to a combination of

      intercourse, cunnilingus, and fellatio “three to four times per week.” Id. at 63,

      95, 96. Evans often filmed parts of his sexual encounters with P.F., specifically

      filming intercourse with P.F. and her masturbating that occurred on three

      separate dates in June 2014 when P.F. was thirteen years old. Even though

      Evans filmed only the intercourse and the masturbation, P.F. was also

      compelled to submit to cunnilingus and to perform fellatio. P.F. turned

      fourteen years old in August 2014.


[5]   Gault and Evans stopped dating and ceased living together at the end of

      September 2014. Despite the breakup, Gault drove P.F. to see Evans on most

      weekends. Evans proposed marriage to fourteen-year-old P.F. on numerous

      occasions. The sexual relationship between Evans and P.F. continued as P.F.

      entered high school. Evans filmed P.F. having intercourse with him, as well as

      her submitting to or performing the acts of cunnilingus and fellatio on several

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2895 | August 20, 2019   Page 3 of 9
      occasions through August of 2016. Authorities finally discovered the long-

      standing abusive and exploitive relationship between Evans and then seventeen-

      year-old P.F. while investigating threatening messages Evans sent to the coach

      of a high school athletic team for which P.F. was a trainer.


[6]   The State originally charged Evans with three counts in September 2017, but

      amended the charges in July 2018, charging him with a total of eleven counts.

      The charges included three counts of class A felony child molesting, three

      counts of level 1 felony child molesting, three counts of level 4 felony sexual

      misconduct with a minor, one count of class C felony child exploitation, and

      one count of level 5 felony child exploitation. Following a two-day trial, a jury

      found Evans guilty as charged. The trial court sentenced Evans to an aggregate

      term of 152 years’ imprisonment. Specifically, the court imposed three

      consecutive thirty-year terms for the class A felony child molesting convictions;

      three consecutive thirty-year terms, capped at forty years total, for the level 1

      child molesting convictions; three consecutive six-year terms, capped at fifteen

      years total, for the level 4 felony sexual misconduct with a minor convictions; a

      consecutive four-year term for the class C felony child exploitation conviction;

      and a consecutive three-year term for the level 5 felony child exploitation

      conviction. This appeal ensued.


                                     Discussion and Decision
[7]   Evans asserts that two of his convictions for class A felony child molesting and

      two of his convictions for level 1 felony child molesting violate the Indiana

      Constitution’s prohibition against double jeopardy. Article 1, Section 14 of the
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2895 | August 20, 2019   Page 4 of 9
      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.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). Under the actual

      evidence test, “the actual evidence presented at trial is examined to determine

      whether each challenged offense was established by separate and distinct facts.”

      Id. at 53. 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.


[8]   A “reasonable possibility” requires substantially more than a logical possibility,

      and “turns on a practical assessment of whether the [fact-finder] may have

      latched on to exactly the same facts for both convictions.” Garrett v. State, 992

      N.E.2d 710, 719-20 (Ind. 2013). “We evaluate the evidence from the [fact-

      finder’s] perspective and may consider the charging information, jury

      instructions, and arguments of counsel.” Id. at 720. Whether multiple

      convictions violate double jeopardy principles is a question of law which we

      review de novo. Sloan v. State, 947 N.E.2d 917, 920 (Ind. 2011).


[9]   Indiana Code Section 35-42-4-3(a) provides in relevant part that “a person who,

      with a child under fourteen years of age, knowingly or intentionally performs or

      submits to sexual intercourse or other sexual conduct, commits child molesting

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2895 | August 20, 2019   Page 5 of 9
….” The offense is a level 1 felony if committed by a person at least twenty-one

years of age. Ind. Code § 35-42-4-3(a)(1).2                   Although Evans was charged and

convicted of six counts of child molesting, his double jeopardy challenge

pertains to only four of his convictions. The charging information for the

challenged counts provided in relevant part as follows:


         Count 2
         [B]etween August 1, 2013 and June 30, 2014 … Travis Lee
         Evans (dob 03/13/1975), a person of at least twenty-one (21)
         years of age, did perform deviate sexual conduct with P.F. (dob
         08/29/2000), a child under the age of fourteen years ….

         Count 3
         [B]etween August 1, 2013 and June 30, 2014 … Travis Lee
         Evans (dob 03/13/1975), a person of at least twenty-one (21)
         years of age, did submit to deviate sexual conduct with P.F. (dob
         08/29/2000), a child under the age of fourteen years ….

         ….

         Count 5
         [B]etween July 1, 2014 and August 28, 2014 … Travis Lee Evans
         (dob 03/13/1975), a person of at least twenty-one (21) years of
         age, did perform other sexual conduct with P.F. (dob
         08/29/2000), a child under the age of fourteen years ….




2
  Effective July 1, 2014, the legislature enacted a significantly revised criminal code. Relevant here, Indiana
Code Section 35-42-4-3(a) was amended to replace the term “deviate sexual conduct” with the term “other
sexual conduct.” Both “deviate sexual conduct” and “other sexual conduct” mean an act involving: (1) the
sex organ of one person and the mouth or anus of another person; or (2) the penetration of the sex organ or
anus of a person by an object. See Ind. Code § 35-31.5-2-221.5 (July 1, 2014) (defining “other sexual
conduct”); Ind. Code § 35-31.5-2-94 (effective July 1, 2012 to June 30, 2014) (defining deviate sexual
conduct). In addition, the sentencing terminology “class A felony” was replaced with “level 1 felony.” Ind.
Code § 35-42-4-3(a).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2895 | August 20, 2019                      Page 6 of 9
               Count 6
               [B]etween July 1, 2014 and August 28, 2014 … Travis Lee Evans
               (dob 03/13/1975), a person of at least twenty-one (21) years of
               age, did submit to other sexual conduct with P.F. (dob
               08/29/2000), a child under the age of fourteen years ….


       Appellant’s App. Vol. 2 at 69-70. Evans asserts that each of these charges

       alleged “no material or unique facts” and the State failed to present separate

       pieces of evidence at trial to “draw the jury’s attention” to four independent

       instances of “non-vaginal sex” that would support separate convictions.

       Appellant’s Br. at 11. Accordingly, Evans argues that there is a reasonable

       possibility that the jury convicted him on counts 2, 3, 5, and 6 based upon

       “identical facts.” Id. We disagree.


[10]   P.F. testified that Evans compelled her to submit to intercourse for the first time

       in the summer of 2013 right before she began seventh grade. She further

       testified that he then compelled her to submit to cunnilingus for the first time at

       the beginning of her seventh-grade year. P.F. testified that Evans “definitely”

       compelled her to submit to cunnilingus “every time” they had intercourse

       thereafter, and that intercourse occurred at least twice a weekend through

       September 2013, and then three to four times per week through September

       2014. Tr. Vol. 3 at 86-87. P.F. stated that Evans compelled her to perform

       fellatio for the first time in 2013 when she was in seventh grade. She further

       stated that he “usually” compelled her to perform fellatio each, but not every,

       time they had intercourse thereafter, which intercourse occurred at least twice a

       weekend through September 2013 and then three to four times per week

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2895 | August 20, 2019   Page 7 of 9
       through September 2014. In addition to P.F.’s testimony, the jury viewed

       videos recorded by Evans in June 2014 of sexual intercourse between Evans

       and P.F., as well as of P.F. masturbating. P.F. explained that even when the

       videos depicted only intercourse, cunnilingus and fellatio also occurred.


[11]   Based upon P.F.’s testimony alone, the jury could reasonably conclude that at

       least two separate instances of cunnilingus (counts 2 and 5) and two separate

       instances of fellatio (counts 3 and 6) occurred with Evans while P.F. was under

       the age of fourteen years.3 Evans implies that simply because the jury likely

       relied almost exclusively on P.F.’s testimony to support the four challenged

       convictions that the actual evidence test has been violated. However, relying on

       the same testimony from the same witness to support each conviction is not

       akin to using the same evidentiary facts to establish the essential elements of

       each challenged conviction. Rather, P.F.’s testimony provided evidence that

       numerous and repeated acts of deviate sexual conduct and other sexual conduct

       occurred during the relevant time periods to support each count charged.4

       Under the circumstances, we conclude that there is no reasonable possibility

       that the jury used the same instance of cunnilingus to support the convictions




       3
         Evans concedes that the jury was instructed that cunnilingus was the alleged “deviate sexual conduct” or
       “other sexual conduct” for counts 2 and 5 and that fellatio was the alleged “deviate sexual conduct” or “other
       sexual conduct” for counts 3 and 6.
       4
        The State explained to the jury during closing argument that the time periods alleged in the different
       charges were based upon the revisions to and the effective dates of the relevant statutory scheme. Tr. Vol. 3
       at 194.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2895 | August 20, 2019                    Page 8 of 9
       for counts 2 and 5 or the same instance of fellatio to support counts 3 and 6.

       Finding no double jeopardy violation, we affirm Evans’s convictions.


[12]   Affirmed.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2895 | August 20, 2019   Page 9 of 9
