Jerry Dean Thompson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 16, 2020
• Docket: 20A-CR-33
• 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 Sep 16 2020, 8:45 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 Deborah Markisohn Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jerry Dean Thompson, September 16, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-33 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Mark D. Stoner, Appellee-Plaintiff, Judge Trial Court Cause No. 49G06-1902-F3-4788

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-33 | September 16, 2020 Page 1 of 8 Case Summary and Issue [1] Following a jury trial, Jerry Thompson was convicted of the following:

kidnapping, a Level 3 felony; unlawful possession of a firearm by a serious

violent felon, a Level 4 felony; battery resulting in bodily injury to a public

safety official, a Level 5 felony; possession of cocaine, a Level 6 felony; resisting

law enforcement, a Level 6 felony; invasion of privacy, a Level 6 felony; and

invasion of privacy as a Class A misdemeanor, enhanced to a Level 6 felony for

a prior conviction. The trial court ordered Thompson’s sentences for

kidnapping, battery on a public safety official, and resisting law enforcement to

be served consecutively. The sentences on the remaining counts were to be

served concurrently to his kidnapping sentence. Thompson was sentenced to an

aggregate of nineteen and one-half years.

[2] Thompson appeals, presenting the sole issue of whether the trial court abused

its discretion by ordering Thompson’s sentences for battery resulting in bodily

injury to a public safety official and resisting law enforcement to be served

consecutively to each other. Concluding the trial court did not abuse its

discretion, we affirm.

Facts and Procedural History [3] Thompson and Ashley Lacey had an on and off relationship for six years. By

February 2019, however, Lacey had obtained a no contact order against

Thompson. On February 3, 2019, Officer Corey Shinn of the Indianapolis

Court of Appeals of Indiana | Memorandum Decision 20A-CR-33 | September 16, 2020 Page 2 of 8 Metropolitan Police Department responded to a 911 call regarding a domestic

disturbance in a Walgreens parking lot on North Meridian Street. When he

arrived, Lacey told Officer Shinn that Thompson had assaulted her and bit her

neck. Thompson had left the scene by the time Officer Shinn arrived. Officer

Shinn took a report and had an evidence technician photograph the injuries on

Lacey’s neck.

[4] The following day, while he was patrolling, Officer Shinn saw Thompson near

31st Street and Rader Street on Indianapolis’ northwest side. Officer Shinn was

approaching Thompson’s car when Lacey suddenly exited Thompson’s car and

ran toward Officer Shinn. Lacey told Officer Shinn that Thompson had forced

her to get into his car, at gunpoint, earlier that morning. Officer Shinn put his

car in park and opened his door at the same time Thompson pulled his car

alongside Officer Shinn’s and opened his door as well. Initially, Thompson was

calm but became agitated when a second officer, Timothy Elliot, arrived.

Officer Shinn asked Thompson to exit his vehicle, planning to arrest him for

violating the no contact order. However, instead of exiting his vehicle,

Thompson grabbed the steering wheel and began to close the door. To stop

him, Officer Shinn climbed into the car, getting on top of Thompson.

Thompson began reaching around the car at which point Officer Shinn saw a

handgun, so he called out to alert Officer Elliot.

[5] Thompson grabbed the gun but was unable to pull it up. Officer Shinn had

Thompson’s arm pinned and Thompson began headbutting Officer Shinn in the

face. Officer Elliot tased Thompson and the officers were able to pull

Court of Appeals of Indiana | Memorandum Decision 20A-CR-33 | September 16, 2020 Page 3 of 8 Thompson out of the car. As Thompson struggled, he grabbed Officer Elliot’s

taser and attempted to use it on Officer Shinn. The officers managed to get the

taser away from Thompson and handcuffed him after additional officers

arrived. According to Lacey, Thompson had been using crack cocaine that day

which made him “very hostile, very angry towards people.” Transcript of

Evidence, Volume III at 5.

[6] The State charged Thompson with twelve counts, including kidnapping,

criminal confinement, unlawful possession of a firearm by a serious violent

felon, two counts of battery resulting in bodily injury to a public safety official,

possession of cocaine, two counts of resisting law enforcement, two counts of

invasion of privacy, and two counts of battery. Before trial, the trial court

dismissed one count of battery and one count of battery resulting in bodily

injury to a public safety official on the State’s motion. At trial, the jury found

Thompson not guilty of criminal confinement and battery, but guilty of the

remaining eight counts.

[7] At the sentencing hearing, the trial court found as mitigating circumstances

Thompson’s medical issues and disability, family history, mental issues, and

participation in jail programs. Conversely, the trial court found Thompson’s

criminal history to be an aggravating circumstance, noting that Thompson had

thirty-nine arrests, five misdemeanor convictions, and eighteen felony

convictions prior to these charges. Thompson also had multiple probation

violations and multiple disciplinary actions while incarcerated, including

several assaults.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-33 | September 16, 2020 Page 4 of 8 [8] The trial court sentenced Thompson to an aggregate of nineteen and one-half

years with the battery to a public safety officer and resisting law enforcement

sentences to be served consecutively to the kidnapping sentence and the

remainder of sentences to be served concurrently. Thompson now appeals.

Discussion and Decision I. Standard of Review [9] Sentencing decisions rest within the sound discretion of the trial court and are

reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868

N.E.2d 482, 490 (Ind. 2007), clarified on other grounds on reh’g, 875 N.E.2d 218

(Ind. 2007). An abuse of discretion occurs if the decision is clearly against the

logic and effect of the facts and circumstances before the court, or the

reasonable, probable, and actual deductions to be drawn therefrom. Id.

II. Consecutive Sentences [10] Thompson challenges his sentence, contending that the trial court erred when it

imposed consecutive terms of imprisonment for Thompson’s convictions of

battery resulting in bodily injury to a public safety official and resisting law

enforcement. The trial court has discretion to sentence a defendant to

consecutive or concurrent terms of imprisonment. Smith v. State, 889 N.E.2d

261, 262 (Ind. 2008); Ind. Code § 35-50-1-2(c). When making this

determination, the trial court may consider aggravating and mitigating

circumstances. Ind. Code § 35-50-1-2(c)(1)-(2). Only one valid aggravating

Court of Appeals of Indiana | Memorandum Decision 20A-CR-33 | September 16, 2020 Page 5 of 8 circumstance is necessary to impose a consecutive sentence. Owens v. State, 916

N.E.2d 913, 917 (Ind. Ct. App. 2009). The trial court must provide a rationale

for the imposition of a consecutive sentence. McBride v. State, 992 N.E.2d 912,

919 (Ind. Ct. App. 2013).

[11] Thompson argues that because the acts constituting battery and resisting law

enforcement occurred during one single continuous incident, the trial court

abused its discretion in not ordering these sentences to be served concurrently.

Thompson contends that courts have “looked to the ‘episodic nature of the

crimes committed’ to evaluate whether sentences should be run consecutively

or concurrently.” Brief of Appellant at 13 (quoting Kocielko v. State, 943 N.E.2d

1282, 1283 (Ind. Ct. App. 2011), trans denied). He further claims that this “single

incident analysis,” which has been embraced in other contexts, is applicable

here. Id. (citing Beno v. State, 581 N.E.2d 922, 924 (Ind. 1991)). Thompson

analogizes this case to Beno, stating that in both cases, “there were multiple,

overlapping acts which occurred within a very short time [and] were so

intertwined that to recount one crime, reference must be made to the other.” Id.

at 14.

[12] In Beno, the defendant was convicted of two counts of dealing in cocaine and

one count of maintaining a common nuisance after two controlled drug

purchases four days apart. The trial court sentenced the defendant to the

maximum sentence for each offense and ordered that the sentences be served

consecutively. Our supreme court held that because “the crimes committed

were nearly identical State-sponsored buys, consecutive sentences were

Court of Appeals of Indiana | Memorandum Decision 20A-CR-33 | September 16, 2020 Page 6 of 8 inappropriate.” Beno, 581 N.E.2d at 924. Beno has primarily been applied to

drug cases. See Hendrickson v. State, 690 N.E.2d 765, 767 (Ind. Ct. App. 1998)

(stating the purpose of the holding in Beno is “prohibiting consecutive sentences

when the police entice additional drug buys”). Further, Beno involved two

virtually identical non-violent crimes and is distinguishable from this case. See

Beno, 581 N.E.2d at 924 (stating that if the defendant “had sold drugs to

different persons, or if he had provided a different type of drug during each buy,

the consecutive sentences imposed might seem more appropriate”).

Thompson’s convictions arose out of a single episode of criminal conduct;

however, they are separate offenses committed against two different officers.

[13] Although Beno has traditionally been applied to drug cases, Thompson

contends that it has been “embraced in other contexts.” Br. of Appellant at 13.

Specifically, Thompson points to Kocielko. The court in Kocielko applied a

“single incident analysis” in a sexual misconduct case. However, the court in

Kocielko “gave consideration to the episodic nature of multiple violent crimes

when committed against a single victim in a single confrontation.” 943 N.E.2d

at 1283 (opinion on reh’g) (citing Bowling v. State, 560 N.E.2d 658 (Ind. 1990)).

Because Thompson’s offenses were committed against two different officers,

this case is also distinguishable from Kocielko.

[14] Consecutive sentences are appropriate in some circumstances in order to

“vindicate the fact that there were separate harms and separate acts against

more than one person.” Serino v. State, 798 N.E.2d 852, 857 (Ind. 2003). Such is

the case here, where Thompson was convicted of battery on Officer Shinn and Court of Appeals of Indiana | Memorandum Decision 20A-CR-33 | September 16, 2020 Page 7 of 8 resisting law enforcement for his actions against Officer Elliott. To order a

consecutive sentence, “the trial court must find at least one aggravating

circumstance[.]” Hoeppner v. State, 918 N.E.2d 695, 699 (Ind. Ct. App. 2009). At

Thompson’s sentencing hearing, the trial court stated the “aggravating

circumstances clearly are his criminal history,” noting that Thompson has had a

total of thirty-nine arrests, five misdemeanor convictions, and eighteen felony

convictions as an adult. Tr., Vol. III at 164. One valid aggravator alone is

enough to enhance a sentence or to impose it consecutive to another. Gleason v.

State, 965 N.E.2d 702, 712 (Ind. Ct. App. 2012).

[15] Thompson does not challenge his criminal history as an aggravating

circumstance. Thompson’s criminal history is sufficient to justify the imposition

of consecutive sentences pursuant to Indiana Code section 35-50-1-2(c).

Conclusion [16] The trial court did not abuse its discretion when ordering Thompson’s

convictions for battery resulting in bodily injury to a public safety official and

resisting law enforcement be served consecutively. Accordingly, we affirm his

sentence.

[17] Affirmed.

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

Court of Appeals of Indiana | Memorandum Decision 20A-CR-33 | September 16, 2020 Page 8 of 8