FILED Nov 22 2023, 8:59 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark K. Leeman Theodore E. Rokita Leeman Law Office Attorney General Logansport, Indiana Tyler Banks Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Curtis Baker, November 22, 2023 Appellant-Defendant, Court of Appeals Case No. 23A-CR-1340 v. Appeal from the Cass Superior Court State of Indiana, The Honorable Appellee-Plaintiff James Muehlhausen, Judge Trial Court Cause No. 09D01-2209-F6-274
Opinion by Judge Vaidik Judges Bradford and Brown concur.
Court of Appeals of Indiana | Opinion 23A-CR-1340 | November 22, 2023 Page 1 of 10 Vaidik, Judge.
Case Summary [1] In a criminal jury trial where the State presents evidence of “a greater number
of separate criminal offenses” than charged and doesn’t designate the specific
act or acts on which it relies for conviction, a general unanimity instruction
doesn’t suffice. The jury should be instructed that they must either unanimously
agree that the defendant committed the same act or acts or that the defendant
committed all the acts alleged. However, where multiple similar acts are part of
one continuous episode, this special unanimity instruction isn’t required.
[2] Here, a jury found Curtis Baker guilty of domestic battery and strangulation
after the State presented evidence that he punched a woman, threw her to the
ground, pinned her to the ground, and choked her twice. Baker now appeals,
arguing that the jury should have been given the special unanimity instruction.
Because the alleged acts were all part of a single continuous attack, we disagree
and affirm.
Facts and Procedural History [3] The evidence most favorable to the convictions is as follows. Baker met Ann
Humphrey in 2019, and they had a “[f]riends with benefits type of
relationship.” Tr. p. 78. The sexual relationship continued even after Baker
married another woman. During the summer of 2022, Humphrey informed
Baker that she had tested positive for a sexually transmitted disease. Court of Appeals of Indiana | Opinion 23A-CR-1340 | November 22, 2023 Page 2 of 10 [4] On August 27, Baker hosted a bonfire at his house for Humphrey’s birthday. At
some point that night, Humphrey and Baker took Humphrey’s car to a nearby
business and parked. They exited the car and started kissing. Before long,
though, “It was like a light switch went off and [Baker] just changed.” Id. at 86.
“He looked mean. He had an evil look in his eyes. His forehead was, like, like
he was squinting so his forehead was, like, wrinkled.” Id. According to
Humphrey, Baker pushed her against the back of the car, punched her in the
face twice, and then started choking her. He said his STD test came back
positive and asked Humphrey why she “did this to him.” Id. at 87, 90.
[5] After about ten seconds, Humphrey broke free and ran toward the road. Baker
chased after her, grabbed the hood of her sweatshirt, and threw her to the
ground. Baker got on top of Humphrey and started choking her again.
Humphrey’s eyes “were starting to roll into the back of [her] head” and she
could see “nothing but black.” Id. at 94. Baker eventually relented, and after
some additional arguing, Humphrey managed to get to her car and leave. She
had marks on various parts of her body, including scratches on her neck and
bruises on her arms.
[6] When Humphrey left, Baker called his wife, Rachel, and told her to come pick
him up. Rachel drove to where Baker was, and Baker said he was going to
drive. Rachel could see that Baker was “angry,” “breathing heavy,” and
“sweating” and “kept balling up his fists[.]” Id. at 133. Baker said he and
Humphrey “got into it” and that “he was going to go burn down her house.” Id.
at 130, 133, 136. He began driving “[v]ery fast . . . probably over a hundred
Court of Appeals of Indiana | Opinion 23A-CR-1340 | November 22, 2023 Page 3 of 10 miles an hour.” Id. at 134. Baker drove to Humphrey’s house and confronted
her as she exited her car. He told Humphrey, “[T]ell your kids I’m sorry B. I’m
setting your house on fire.” Id. at 99. Baker then drove away.
[7] The State charged Baker with Level 6 felony domestic battery (elevated from a
Class A misdemeanor based on a prior conviction for the same offense) and
Level 6 felony strangulation. The State also alleged that Baker is a habitual
offender. A jury trial was held in May 2023. Humphrey and Rachel testified as
described above. Baker testified that Humphrey assaulted him, not the other
way around.
[8] After the close of evidence, the trial court instructed the jury, in part, “Do not
sign any Verdict form for which there is not unanimous agreement.” Id. at 172.
Baker did not object to this instruction or offer a different unanimity
instruction.
[9] The jury found Baker guilty of both domestic battery and strangulation, and
Baker admitted his prior domestic-battery conviction and his habitual-offender
status. The trial court sentenced him to seven years in the Department of
Correction.
[10] Baker now appeals.
Discussion and Decision [11] Baker contends that the lack of a more specific unanimity instruction amounted
to fundamental error and that as a result his convictions must be reversed and Court of Appeals of Indiana | Opinion 23A-CR-1340 | November 22, 2023 Page 4 of 10 the case remanded for a new trial. In the alternative, he argues that the two
convictions constitute double jeopardy under Wadle v. State, 151 N.E.3d 227
(Ind. 2020), and that one of the convictions must be vacated.
I. Baker has not shown fundamental error in the jury instructions [12] In arguing that the jury should have been given a more detailed unanimity
instruction, Baker relies on our Supreme Court’s decision in Baker v. State, 948
N.E.2d 1169 (Ind. 2011), reh’g denied. There, the Court held that where
“evidence is presented of a greater number of separate criminal offenses than
the defendant is charged with,” and the State doesn’t “designate a specific act
(or acts) on which it relies,” the jury “should be instructed that in order to
convict the defendant they must either unanimously agree that the defendant
committed the same act or acts or that the defendant committed all of the acts
described by the victim and included within the time period charged.” Id. at
1175-77. Baker argues that without such an instruction in this case, some jurors
might have found him guilty of domestic battery believing he choked
Humphrey, some might have believed he punched her, and some might have
believed both. Likewise, he contends that some jurors might have found him
guilty of strangulation believing he choked Humphrey against the car, some
might have believed he choked her on the ground, and some might have
believed both.
[13] Baker acknowledges he didn’t ask the trial court to give the more detailed
instruction and therefore waived this argument, but he contends that the lack of
Court of Appeals of Indiana | Opinion 23A-CR-1340 | November 22, 2023 Page 5 of 10 such an instruction was fundamental error. “An error is fundamental, and thus
reviewable despite failure to object, if it made a fair trial impossible or
constituted a clearly blatant violation of basic and elementary principles of due
process presenting an undeniable and substantial potential for harm.” Young v.
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FILED Nov 22 2023, 8:59 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark K. Leeman Theodore E. Rokita Leeman Law Office Attorney General Logansport, Indiana Tyler Banks Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Curtis Baker, November 22, 2023 Appellant-Defendant, Court of Appeals Case No. 23A-CR-1340 v. Appeal from the Cass Superior Court State of Indiana, The Honorable Appellee-Plaintiff James Muehlhausen, Judge Trial Court Cause No. 09D01-2209-F6-274
Opinion by Judge Vaidik Judges Bradford and Brown concur.
Court of Appeals of Indiana | Opinion 23A-CR-1340 | November 22, 2023 Page 1 of 10 Vaidik, Judge.
Case Summary [1] In a criminal jury trial where the State presents evidence of “a greater number
of separate criminal offenses” than charged and doesn’t designate the specific
act or acts on which it relies for conviction, a general unanimity instruction
doesn’t suffice. The jury should be instructed that they must either unanimously
agree that the defendant committed the same act or acts or that the defendant
committed all the acts alleged. However, where multiple similar acts are part of
one continuous episode, this special unanimity instruction isn’t required.
[2] Here, a jury found Curtis Baker guilty of domestic battery and strangulation
after the State presented evidence that he punched a woman, threw her to the
ground, pinned her to the ground, and choked her twice. Baker now appeals,
arguing that the jury should have been given the special unanimity instruction.
Because the alleged acts were all part of a single continuous attack, we disagree
and affirm.
Facts and Procedural History [3] The evidence most favorable to the convictions is as follows. Baker met Ann
Humphrey in 2019, and they had a “[f]riends with benefits type of
relationship.” Tr. p. 78. The sexual relationship continued even after Baker
married another woman. During the summer of 2022, Humphrey informed
Baker that she had tested positive for a sexually transmitted disease. Court of Appeals of Indiana | Opinion 23A-CR-1340 | November 22, 2023 Page 2 of 10 [4] On August 27, Baker hosted a bonfire at his house for Humphrey’s birthday. At
some point that night, Humphrey and Baker took Humphrey’s car to a nearby
business and parked. They exited the car and started kissing. Before long,
though, “It was like a light switch went off and [Baker] just changed.” Id. at 86.
“He looked mean. He had an evil look in his eyes. His forehead was, like, like
he was squinting so his forehead was, like, wrinkled.” Id. According to
Humphrey, Baker pushed her against the back of the car, punched her in the
face twice, and then started choking her. He said his STD test came back
positive and asked Humphrey why she “did this to him.” Id. at 87, 90.
[5] After about ten seconds, Humphrey broke free and ran toward the road. Baker
chased after her, grabbed the hood of her sweatshirt, and threw her to the
ground. Baker got on top of Humphrey and started choking her again.
Humphrey’s eyes “were starting to roll into the back of [her] head” and she
could see “nothing but black.” Id. at 94. Baker eventually relented, and after
some additional arguing, Humphrey managed to get to her car and leave. She
had marks on various parts of her body, including scratches on her neck and
bruises on her arms.
[6] When Humphrey left, Baker called his wife, Rachel, and told her to come pick
him up. Rachel drove to where Baker was, and Baker said he was going to
drive. Rachel could see that Baker was “angry,” “breathing heavy,” and
“sweating” and “kept balling up his fists[.]” Id. at 133. Baker said he and
Humphrey “got into it” and that “he was going to go burn down her house.” Id.
at 130, 133, 136. He began driving “[v]ery fast . . . probably over a hundred
Court of Appeals of Indiana | Opinion 23A-CR-1340 | November 22, 2023 Page 3 of 10 miles an hour.” Id. at 134. Baker drove to Humphrey’s house and confronted
her as she exited her car. He told Humphrey, “[T]ell your kids I’m sorry B. I’m
setting your house on fire.” Id. at 99. Baker then drove away.
[7] The State charged Baker with Level 6 felony domestic battery (elevated from a
Class A misdemeanor based on a prior conviction for the same offense) and
Level 6 felony strangulation. The State also alleged that Baker is a habitual
offender. A jury trial was held in May 2023. Humphrey and Rachel testified as
described above. Baker testified that Humphrey assaulted him, not the other
way around.
[8] After the close of evidence, the trial court instructed the jury, in part, “Do not
sign any Verdict form for which there is not unanimous agreement.” Id. at 172.
Baker did not object to this instruction or offer a different unanimity
instruction.
[9] The jury found Baker guilty of both domestic battery and strangulation, and
Baker admitted his prior domestic-battery conviction and his habitual-offender
status. The trial court sentenced him to seven years in the Department of
Correction.
[10] Baker now appeals.
Discussion and Decision [11] Baker contends that the lack of a more specific unanimity instruction amounted
to fundamental error and that as a result his convictions must be reversed and Court of Appeals of Indiana | Opinion 23A-CR-1340 | November 22, 2023 Page 4 of 10 the case remanded for a new trial. In the alternative, he argues that the two
convictions constitute double jeopardy under Wadle v. State, 151 N.E.3d 227
(Ind. 2020), and that one of the convictions must be vacated.
I. Baker has not shown fundamental error in the jury instructions [12] In arguing that the jury should have been given a more detailed unanimity
instruction, Baker relies on our Supreme Court’s decision in Baker v. State, 948
N.E.2d 1169 (Ind. 2011), reh’g denied. There, the Court held that where
“evidence is presented of a greater number of separate criminal offenses than
the defendant is charged with,” and the State doesn’t “designate a specific act
(or acts) on which it relies,” the jury “should be instructed that in order to
convict the defendant they must either unanimously agree that the defendant
committed the same act or acts or that the defendant committed all of the acts
described by the victim and included within the time period charged.” Id. at
1175-77. Baker argues that without such an instruction in this case, some jurors
might have found him guilty of domestic battery believing he choked
Humphrey, some might have believed he punched her, and some might have
believed both. Likewise, he contends that some jurors might have found him
guilty of strangulation believing he choked Humphrey against the car, some
might have believed he choked her on the ground, and some might have
believed both.
[13] Baker acknowledges he didn’t ask the trial court to give the more detailed
instruction and therefore waived this argument, but he contends that the lack of
Court of Appeals of Indiana | Opinion 23A-CR-1340 | November 22, 2023 Page 5 of 10 such an instruction was fundamental error. “An error is fundamental, and thus
reviewable despite failure to object, if it made a fair trial impossible or
constituted a clearly blatant violation of basic and elementary principles of due
process presenting an undeniable and substantial potential for harm.” Young v.
State, 30 N.E.3d 719, 726 (Ind. 2015) (quotation omitted).
[14] Baker has not shown fundamental error. When our Supreme Court, in its Baker
decision, used the phrase “a greater number of separate criminal offenses than
the defendant is charged with,” it was referring to situations where evidence is
presented of entirely separate criminal incidents, each of which could be used to
support a conviction. The defendant in that case was charged with three counts
of child molesting—one count each for three girls—and the State presented
evidence that he molested each girl multiple times on separate occasions over a
period of three years. This Court addressed a similar situation in Castillo v. State,
734 N.E.2d 299 (Ind. Ct. App. 2000), reh’g denied, summarily aff’d, 741 N.E.2d
1196 (Ind. 2001). There, we held that a specific unanimity instruction should
have been given because the State charged the defendant with one count of
dealing cocaine but presented evidence of two deals at different times and
locations.
[15] Here, on the other hand, the State presented evidence of a single continuous
attack, albeit an attack that included multiple acts of violence—Baker punching
Humphrey, throwing her to the ground, pinning her to the ground, and choking
her twice. Under the continuous-crime doctrine, “actions that are sufficient in
themselves to constitute separate criminal offenses may be so compressed in
Court of Appeals of Indiana | Opinion 23A-CR-1340 | November 22, 2023 Page 6 of 10 terms of time, place, singleness of purpose, and continuity of action as to
constitute a single transaction.” Walker v. State, 932 N.E.2d 733, 735 (Ind. Ct.
App. 2010), reh’g denied. Citing this doctrine, we have held that where multiple
acts that could each support a guilty verdict are all part of a continuous episode,
a Baker unanimity instruction isn’t required. See Benson v. State, 73 N.E.3d 198
(Ind. Ct. App. 2017) (one count of attempted murder based on evidence that
defendant shot at police officer twice during a continuous ninety-second
pursuit), trans. denied; see also Vest v. State, 930 N.E.2d 1221 (Ind. Ct. App. 2010)
(holding that a specific unanimity instruction wasn’t required where the State
charged the defendant with one count of resisting law enforcement and
presented evidence that the defendant fled from three officers during a
continuous two-minute pursuit), reh’g denied, trans. denied.
[16] In this case, the State charged Baker with two offenses—domestic battery and
strangulation—and it presented evidence of a single continuous attack that
included both offenses. Therefore, the lack of a specific unanimity instruction
wasn’t error, let alone fundamental error.
II. Baker’s convictions are not double jeopardy under Wadle v. State [17] Alternatively, Baker argues that “one of his convictions should be vacated on
substantive double jeopardy grounds” under Wadle v. State, 151 N.E.3d 227
(Ind. 2020), because the jury “may have” convicted him of both strangulation
and domestic battery based on the “same act” of choking. Appellant’s Br. p. 18.
As an initial matter, we think it is highly unlikely the jury found Baker guilty on Court of Appeals of Indiana | Opinion 23A-CR-1340 | November 22, 2023 Page 7 of 10 both counts based on the same act of choking. In its closing argument, the
State’s discussion of the strangulation charge focused on the evidence of
choking, while its discussion of the domestic-battery charge focused on the
evidence that Baker punched Humphrey, threw her to the ground, and pinned
her to the ground. See Tr. pp. 173-77.
[18] But even assuming the jury based both guilty verdicts on the same act of
choking, there would be no double-jeopardy violation. In Wadle, our Supreme
Court established a three-step test for determining whether convictions under
multiple statutes constitute double jeopardy:
1. We first look to the statutes themselves. If either statute clearly permits multiple punishment, whether expressly or by unmistakable implication, the court’s inquiry comes to an end and there is no violation of substantive double jeopardy.
2. But if the statutory language is not clear, then a court must apply our included-offense statutes to determine whether the charged offenses are the same. See Ind. Code § 35-31.5-2-168. If neither offense is included in the other (either inherently or as charged), there is no violation of double jeopardy.
3. But if one offense is included in the other (either inherently or as charged), then the court must examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial. If, based on these facts, the defendant’s actions were so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction, then the prosecutor may charge the offenses as alternative sanctions only. But if the defendant’s actions prove otherwise, a court may convict on each charged offense.
Court of Appeals of Indiana | Opinion 23A-CR-1340 | November 22, 2023 Page 8 of 10 151 N.E.3d at 253 (cleaned up).
[19] Baker’s argument that the jury “may have” convicted him of both strangulation
and domestic battery based on the same act of choking concerns the third step
of the test. But we don’t reach the third step unless the second step is satisfied—
that is, if one offense is included in the other, “either inherently or as charged.”
Here, the second step isn’t satisfied.
[20] To determine whether an offense is “inherently included” in another offense,
we look at the statutory elements of each offense and ask whether (1) one
offense may be established by proof of the same material elements or less than
all the material elements of the other offense or (2) the only feature
distinguishing the two offenses is that a lesser culpability is required to establish
the commission of the lesser offense. Id. at 251 n.30. Neither is true here. The
strangulation statute includes an element that the domestic-battery statute does
not: the defendant must apply pressure to the throat, neck, or upper torso of
another person, or obstruct the nose or mouth of another person, “in a manner
that impedes the normal breathing or the blood circulation of the other person.”
I.C. § 35-42-2-9(c). And the domestic-battery statute includes an element that
the strangulation statute does not: the victim must be a “family or household
member.” I.C. § 35-42-2-1.3(a). Therefore, neither offense is inherently included
in the other.
[21] To determine whether an offense is included “as charged” (or “factually
included”) in another offense, we look at the charging information and ask
Court of Appeals of Indiana | Opinion 23A-CR-1340 | November 22, 2023 Page 9 of 10 whether it alleges that the means used to commit one offense include all the
elements of the other offense. Wadle, 151 N.E.3d at 251 n.30. Here, the
strangulation charge specifically alleged that Baker applied pressure to
Humphrey’s throat or neck, but the domestic-battery charge tracked the
language of the domestic-battery statute, without alleging any specific act of
battery. Appellant’s App. Vol. II p. 17. Therefore, neither offense is included
“as charged” in the other.
[22] Because neither offense is included in the other, either inherently or as charged,
we don’t reach the third step of the Wadle test.1
[23] Affirmed.
Bradford, J., and Brown, J., concur.
1 We noted in Mills v. State, 211 N.E.3d 22, 34 n.4 (Ind. Ct. App. 2023), that this reading of Wadle means the State can in some cases avoid what would otherwise be a clear double-jeopardy violation simply by omitting detailed factual allegations from a charging information. The defendant in that case has filed a petition to transfer. See No. 22A-CR-1392.
Court of Appeals of Indiana | Opinion 23A-CR-1340 | November 22, 2023 Page 10 of 10