Blake Boyd v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 19, 2020
• Docket: 20A-CR-407
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 19 2020, 8:40 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 Steven Knecht Curtis T. Hill, Jr. Vonderheide & Knecht, P.C. Attorney General of Indiana Lafayette, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Blake Boyd, October 19, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-407 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Kristen E. McVey, Appellee-Plaintiff, Judge Trial Court Cause No. 79D05-1911-F6-1241

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-407 | October 19, 2020 Page 1 of 4 [1] Blake Boyd was charged with battery, a Class B misdemeanor, and sexual

battery, a Level 6 felony, for the single act of reaching up a woman’s skirt and

grabbing her buttocks. Following a bench trial, the trial court entered a written

Order on Bench Trial concluding, “The Court finds [Boyd] guilty of Sexual

Battery as a Level 6 felony. The Court finds Battery, as a Class B misdemeanor

is a lesser included offense of Count [II].” Appellant’s Appendix, Volume II at

35.1 The trial court’s written sentencing order entered judgment of conviction

only for sexual battery: “Court now enters judgment of conviction on Count

[II], Sexual Battery as a Level 6 Felony and finds Count [I], Battery as a B

Misdemeanor merges into Count [II].”2 Appealed Order at 3. The abstract of

judgment, however, states “Conviction Merged” as to the battery count:

Id. at 1.

[2] Boyd appeals, raising as his sole issue whether the case should be remanded to

the trial court to correct the abstract of judgment to show that any battery

1 A question was raised at trial as to whether the victim, being conscious at the time, was “unaware” that the touching was occurring as required by the sexual battery statute. Ind. Code § 35-42-4-8(a)(2). The trial court took the matter under advisement and issued this written order approximately a week later explaining and announcing its judgment. 2 Boyd was originally charged with Count I, battery. Count II, sexual battery, was added seven months later. See Appellant’s App., Vol. II at 13, 29-31. The trial court’s sentencing order incorrectly refers to Count I as sexual battery and Count II as battery.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-407 | October 19, 2020 Page 2 of 4 conviction has been vacated because “the entry of a judgment of conviction for

misdemeanor battery in the abstract of judgment constitutes a double jeopardy

violation.” Brief of Appellant at 4.

[3] Boyd argues and the State concedes that the evidence at trial established only

one battery. See id. at 12; Br. of Appellee at 6. Thus, convictions for both

sexual battery and battery would constitute double jeopardy. See Wadle v. State,

151 N.E.3d 227, 235 (Ind. 2020) (because the facts show only a single

continuous crime, and battery is included in sexual battery, the presumption is

that the legislature intended alternative sanctions); Ind. Code § 35-31.5-2-168

(defining an “included offense,” in part, as an offense that “is established by

proof of the same material elements or less than all the material elements

required to establish the commission of the offense charged”). Consequently,

judgment of conviction may not be entered against Boyd for both counts. See

Ind. Code § 35-38-1-6 (“Whenever . . . a defendant is charged with an offense

and an included offense in separate counts; and . . . the defendant is found

guilty on both counts[,] judgment and sentence may not be entered against the

defendant for the included offense.”).

[4] Although the trial court did not specifically find Boyd guilty of battery, see

Appellant’s App., Vol. II at 34-35, did not expressly enter judgment of

conviction against Boyd for battery, see Appealed Order at 3, and did not

sentence Boyd for battery, see id. at 1, the abstract of judgment implies that a

conviction was entered on the battery count, see id. A double jeopardy violation

“cannot be remedied by the practical effect of concurrent sentences or by

Court of Appeals of Indiana | Memorandum Decision 20A-CR-407 | October 19, 2020 Page 3 of 4 merger after conviction has been entered. A trial court’s act of merging,

without also vacating the conviction, is not sufficient to cure a double jeopardy

violation.” West v. State, 22 N.E.3d 872, 875 (Ind. Ct. App. 2014) (internal

quotation and citation omitted), trans. denied. To the extent the abstract of

judgment creates the appearance of two convictions, the parties agree it is

erroneous. See Br. of Appellant at 13; Br. of Appellee at 6-7. We therefore

remand to the trial court to correct the abstract to reflect either that Count I,

battery, was disposed by a finding of not guilty or that any conviction on the

battery count was vacated.

[5] Remanded.

Crone, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-407 | October 19, 2020 Page 4 of 4