MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 07 2020, 6:26 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark K. Leeman Curtis T. Hill, Jr. Leeman Law Office and Attorney General of Indiana Cass County Public Defender Logansport, Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jessie Hatcher, May 7, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2613 v. Appeal from the Cass Superior Court State of Indiana, The Honorable Richard A. Appellee-Plaintiff Maughmer, Judge The Honorable Thomas C. Perrone, Senior Judge Trial Court Cause No. 09D02-1301-FB-2
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020 Page 1 of 15 Case Summary [1] A jury found Jessie Hatcher guilty of class B felony rape, class D felony
criminal confinement, class D felony strangulation, and class A misdemeanor
domestic battery. On appeal, Hatcher argues that his convictions violate both
federal and state double jeopardy principles. We disagree and therefore affirm.
Facts and Procedural History [2] Hatcher became romantically involved with C.L. and moved into an upstairs
apartment in Logansport with her and her two-year-old son in November 2012.
Both Hatcher’s and C.L.’s names were on the lease. Hatcher was unemployed,
and C.L. had a second-shift job at a meatpacking plant. In January 2013,
Hatcher told C.L. that “he was tired of the bull crap and that he was moving
out.” Tr. Vol. 2 at 159. He left the apartment, and C.L. did not think that he
would return. Later that day, however, C.L. heard Hatcher “screaming”
outside the apartment, “telling [her] to open the door and then [she] heard the
downstairs window shatter out of [her] front door.” Id. at 160. C.L. called law
enforcement, who asked Hatcher to leave, which he did.
[3] The next morning, Hatcher returned to the apartment “in a bad mood” and
“want[ing] to argue.” Id. at 162. C.L. became nervous and went to her
mother’s house, where her son was staying. She then went to work and
returned to her apartment around 2:30 a.m. Hatcher was not there. C.L. took
a shower and went to bed. At some point, Hatcher entered the apartment,
drunk and “really mad.” Id. at 166. He saw a text from C.L.’s ex-boyfriend on
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020 Page 2 of 15 her phone, started calling her names, and eventually “pulled [her] out of [her]
bed and started beating [her] head off the floor.” Id. at 167. C.L. “crawled up
on the little baby mattress that [she] had on the floor[,]” and Hatcher beat her
head against the brick wall. Id. He punched her, kicked her, and ripped hair off
the sides and back of her head. C.L. told Hatcher that she “just wanted to
leave” and be with her son at her mother’s house, and he told her that “he
didn’t care, that if [her] son was around, he’d be doing the same thing to [her]
kid.” Id. at 168.
[4] C.L. kept “trying to get away[,]” which “made it worse.” Id. She tried to hide
her phone in her bra, but Hatcher ripped her shirt, grabbed the phone, and
threw it “against the brick wall and shattered it.” Id. At some unspecified
point, Hatcher “had his arm around [C.L.’s] neck[.]” Id. at 170. He pulled off
her pants, ripped off her underwear, threw her on the bed, and forced her to
have sexual intercourse. She was “afraid he was going to keep beating [her]” if
she did not comply. Id. Hatcher then pulled C.L. off the bed, punched her,
kicked her, stomped on her ankles, and choked her “to the point where [she]
felt like [she] was dying.” Id. at 171. Hatcher threw the mattress off the bed
and told C.L. to get back on the bed. She told him that she did not want to be
on the box springs, so he pulled the mattress onto the bed, threw her on top of
it, and forced her to have sex again. When he was finished, he “told [her she]
needed to lay down and get some rest because he knew [she] had to go to
work.” Id. at 175. She told him that she “couldn’t go to sleep because [she]
was afraid that [she] wouldn’t wake up.” Id.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020 Page 3 of 15 [5] Eventually, C.L. took a shower. Hatcher stood in the bathroom and watched,
stating that “[h]e didn’t want [her] to escape out of the bathroom window.” Id.
at 176. C.L. told Hatcher that she had an appointment to get food stamps. He
told her that she “could go as long as he went.” Id. at 177. They went to the
food stamp office, and she “wasn’t allowed to leave his side.” Id. They
returned to the apartment, and Hatcher told C.L. she “needed to lay down and
rest, and [she] couldn’t do that.” Id. at 178. Despite her pain and injuries, C.L.
drove to work because she was in danger of losing her job if she did not go.
After she got to work, she started crying and was taken to human resources,
where she “told them everything.” Id. at 182. Her parents took her to the
emergency room, where she was examined by staff and interviewed by police.
[6] The State charged Hatcher with class B felony rape, class D felony criminal
confinement, class D felony strangulation, class A misdemeanor interference
with the reporting of a crime, and class A misdemeanor domestic battery. The
trial court issued an arrest warrant, which remained outstanding until Hatcher
was arrested in Chicago in 2018. A two-day jury trial was held in August 2019.
The trial court entered a directed verdict on the interference charge, and the jury
found Hatcher guilty of the remaining charges. The trial court imposed
consecutive executed sentences of twenty years for rape, three years for criminal
confinement, and three years for strangulation, and a concurrent executed
sentence of one year for domestic battery, for an aggregate sentence of twenty-
six years. Hatcher now appeals. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020 Page 4 of 15 Discussion and Decision
Section 1 – Hatcher has not established a violation of the U.S. Constitution’s double jeopardy clause. [7] We first address Hatcher’s assertion that his convictions violate federal double
jeopardy principles. “The Double Jeopardy Clause of the Fifth Amendment to
the United States Constitution, applicable to the states through the Fourteenth
Amendment, provides: ‘Nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb.’” Rexroat v. State, 966 N.E.2d 165, 168
(Ind. Ct. App. 2012), trans. denied. “The Double Jeopardy Clause protects
against successive prosecutions following conviction, reprosecution after
acquittal, and multiple punishments for the same offense.” Games v. State, 684
N.E.2d 466, 473 (Ind. 1997), modified on reh’g on other grounds, 690 N.E.2d 211,
cert. denied (1998). “Where consecutive sentences are imposed at a single
criminal trial, the role of the constitutional guarantee is limited to assuring that
the court does not exceed its legislative authorization by imposing multiple
punishments for the same offense.” Brown v. Ohio, 432 U.S. 161, 165 (1977).
Hatcher contends that he received multiple punishments—consecutive
sentences for rape and criminal confinement—for what he alleges was the same
offense. “Whether convictions violate double jeopardy is a pure question of
law, which we review de novo.” Rexroat, 966 N.E.2d at 168. Hatcher bears the
burden of establishing that a double jeopardy violation has occurred. Bennett v.
State, 883 N.E.2d 888, 893 (Ind. Ct. App. 2008), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020 Page 5 of 15 [8] “In the context of multiple punishments imposed in a single criminal
proceeding, the [U.S. Supreme] Court has declared that the sole purpose of the
Double Jeopardy Clause is to ensure that a court imposes no more punishment
on a defendant than the legislature intended.” Games, 684 N.E.2d at 474
(citing, inter alia, Brown, 432 U.S. at 165). “Whether multiple punishments
may be imposed against a defendant in a single proceeding is, thus, solely a
matter of legislative intent.” Id. “While the legislature ‘ordinarily does not
intend to punish the same offense under two different statutes,’ the legislature is
constitutionally permitted to do so, as long as the intent of the legislature is
clear.” Id. (quoting Whalen v. United States, 445 U.S. 684, 692 (1980)); see also
Brown, 432 U.S. at 165 (“The legislature remains free under the Double
Jeopardy Clause to define crimes and fix punishments; but once the legislature
has acted courts may not impose more than one punishment for the same
offense and prosecutors ordinarily may not attempt to secure that punishment
in more than one trial.”). “Where legislative intent is clear that multiple
punishment is intended, double jeopardy is not violated and further inquiry into
the statutory elements is not appropriate.” Games, 684 N.E.2d at 474 (citing
Albernaz v. United States, 450 U.S. 333, 340 (1981)). “It is only when legislative
intent to impose multiple punishments is uncertain that further inquiry is
required.” Id. at 475.
[9] “This further inquiry, known as the ‘same elements’ test, determines whether or
not a legislature intended to impose separate punishments for multiple offenses
arising in the course of a single act or transaction[.]” Id. “The applicable rule is
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020 Page 6 of 15 that, where the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two
offenses or only one is whether each provision requires proof of an additional
fact which the other does not.” Id. (quoting Blockburger v. United States, 284 U.S.
299, 304 (1932)). “If Blockburger is satisfied, the court assumes that the statutes
are not punishing the same offense and multiple punishment is constitutionally
permitted. If the test is not satisfied, double jeopardy is violated.” Id. (footnote
omitted). In Games, the Indiana Supreme Court abrogated contrary Indiana
precedent and clarified that, consistent with controlling federal jurisprudence, in
applying the same elements test, “we look only to the statutory elements of the
offenses, not to the charging information, the jury instructions outlining the
elements of the crime, or the underlying proof needed to establish the
elements.” Id. at 477.
[10] When Hatcher committed his offenses in January 2013, Indiana Code Section
35-42-4-1 defined class B felony rape in pertinent part as follows:
(a) [A] person who knowingly or intentionally has sexual intercourse with a member of the opposite sex when:
(1) the other person is compelled by force or imminent threat of force;
…
commits rape, a Class B felony.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020 Page 7 of 15 Indiana Code Section 35-42-3-3(a) defined class D felony criminal confinement
in pertinent part as follows:
(a) A person who knowingly or intentionally:
(1) confines another person without the other person’s consent; …
commits criminal confinement[,] … a Class D felony.
And Indiana Code Section 35-42-3-1 defined “confine” as “to substantially
interfere with the liberty of a person.”
[11] In asserting that Indiana Code Sections 35-42-4-1 and 35-42-3-3 define the same
offense for purposes of the federal double jeopardy clause, Hatcher purports to
dive straight into an application of the same elements test without first
examining whether legislative intent is clear that multiple punishment was
intended, contrary to Albernaz and Games. 1 And instead of actually determining
whether each statute requires proof of an additional fact which the other does
not, Hatcher simply attempts to analogize this case to Brown, which involved
joyriding and auto theft statutes, and says, “the rape occurred during a single
continuous confinement.” Appellant’s Br. at 23. We find this analysis
unpersuasive.
1 Because Hatcher does not make a separate argument regarding legislative intent, we do not address that issue.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020 Page 8 of 15 [12] Clearly, the rape statute requires proof of at least one additional fact that the
criminal confinement statute does not, i.e., a knowing or intentional act of
sexual intercourse, and the criminal confinement statute requires proof of at
least one additional fact that the rape statute does not, i.e., substantial
interference with another person’s liberty. The evidence offered to prove the
force or threat of force used to commit a rape may be substantially similar to
that offered to prove a substantial interference with the victim’s liberty, but that
is irrelevant for purposes of federal double jeopardy analysis. See Iannelli v.
United States, 420 U.S. 770, 775 n.17 (1975) (“As Blockburger and other decisions
applying its principle reveal, the Court’s application of the test focuses on the
statutory elements of the offense. If each requires proof of a fact that the other
does not, the Blockburger test is satisfied, notwithstanding a substantial overlap
in the proof offered to establish the crimes.”) (citations omitted). Accordingly,
we conclude that Hatcher has failed to establish a violation of the federal
double jeopardy clause. 2
Section 2 – Hatcher has failed to establish a violation of the Indiana Constitution’s double jeopardy clause. [13] Next, Hatcher contends that his convictions violate the Indiana Constitution’s
double jeopardy clause, and therefore his criminal confinement, strangulation,
2 Hatcher also argues that the rape and criminal confinement offenses are the same offense for federal double jeopardy purposes because the latter is allegedly a lesser included offense of the former. This argument is inapposite because it relies on how the offenses are charged and proved, which Hatcher himself acknowledges are improper considerations in a federal double jeopardy analysis.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020 Page 9 of 15 and domestic battery convictions must be vacated. Article 1, Section 14 of the
Indiana Constitution provides that “[n]o person shall be put in jeopardy twice
for the same offense.” Despite its similar wording, “Indiana’s Double Jeopardy
Clause is not coterminous with its federal counterpart.” Martin v. State, 740
N.E.2d 137, 140 (Ind. Ct. App. 2000), trans. denied (2001). Our supreme court
has explained that two or more offenses are the same offense in violation of
Indiana’s double jeopardy clause “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).
[14] Hatcher does not contend that his offenses are the same offense under
Richardson’s statutory elements test. Instead, he relies on the actual evidence
test, pursuant to which “we examine the actual evidence presented at trial in
order to determine whether each challenged offense was established by separate
and distinct facts.” Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013). “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. (quoting
Richardson, 717 N.E.2d at 53). “The actual evidence test is applied to all the
elements of both offenses.” Id. “In other words … the Indiana Double
Jeopardy Clause is not violated when the evidentiary facts establishing the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020 Page 10 of 15 essential elements of one offense also establish only one or even several, but not
all, of the essential elements of a second offense.” Id. (quoting Spivey v. State,
761 N.E.2d 831, 833 (Ind. 2002)). “Our precedents ‘instruct that a “reasonable
possibility” that the jury used the same facts to reach two convictions requires
substantially more than a logical possibility.’” Id. (quoting Lee v. State, 892
N.E.2d 1231, 1236 (Ind. 2008)). “The existence of a ‘“reasonable possibility”
turns on a practical assessment of whether the [fact finder] may have latched on
to exactly the same facts for both convictions.’” Id. (quoting Lee, 892 N.E.2d at
1236) (alteration in Garrett). “We evaluate the evidence from the jury’s
perspective and may consider the charging information, jury instructions, and
arguments of counsel.” Id.
[15] The charging information here outlined the essential elements of each offense
but offered no factual details. It alleged that Hatcher committed rape in
violation of Indiana Code Section 35-42-4-1 by knowingly or intentionally
having sexual intercourse with C.L. when she was compelled by force or the
imminent threat of force; that he committed criminal confinement in violation
of Indiana Code Section 35-42-3-3 by knowingly or intentionally confining C.L.
without her consent; that he committed strangulation in violation of Indiana
Code Section 35-42-2-9 by knowingly or intentionally applying pressure to
C.L.’s throat or neck or obstructing her nose or mouth in a manner that
impeded normal breathing or blood circulation; and that he committed
domestic battery in violation of Indiana Code Section 35-42-2-1.3 by knowingly
or intentionally touching C.L., who was living with Hatcher as if she were his
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020 Page 11 of 15 spouse, in a rude, insolent, or angry manner, resulting in bodily injury.
Appellant’s App. Vol. 2 at 21-22. The preliminary and final jury instructions
reiterated these bare-bones allegations.
[16] The prosecutor’s brief opening statement was nonspecific regarding what
evidence would be used to prove each crime. The actual evidence presented at
trial is summarized above. In his closing argument, 3 the prosecutor asserted
that Hatcher committed rape by having sexual intercourse with C.L. and that
“[t]he force took place when he punched her in the head repeatedly. When he
bashed her head into the brick wall. When he kicked her. That was the force.
That was the threat of the force at the time he was having sex.” Tr. Vol. 3 at
12-13.
[17] Regarding criminal confinement, the prosecutor stated,
I would argue that [C.L.] was confined both when the arm was around her neck, but really the confinement that I want you to find [Hatcher] guilty on is she wanted to leave. She wanted to go to her mom’s. She wanted to go to her kid. He had said, “well, if your kid was here, I’d do the same thing to him” right? He would not let her leave. I think the reasonable thing here is that she was trying to leave.
Id. at 14.
3 As will become evident, the prosecutor’s closing argument is more relevant to Hatcher’s common-law argument than his constitutional argument.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020 Page 12 of 15 [18] As for strangulation, the prosecutor remarked,
[I]t’s got to be in a manner that impeded the normal breathing or the blood circulation of [C.L.] She indicated both, right? She said she was having trouble breathing when [Hatcher] was doing it and she said she started to black out to do it and I’ll tell you that is a result of oxygen in your blood not getting to your head.… The [sexual assault nurse examiner] indicated that [C.L.’s] neck appeared swollen, which isn’t something that always shows up on a picture well.… She took great records. “Patient reports discomfort in the neck area, said her jaw hurt. Reported he choked me. He did it, like, two times.” And the documentation there shows the extent of the injuries on her front and on her back during the rape and during the battery. “Patient reports choking. He did it, like, two times.” There’s a specific notation for the scratch around her neck. “Also reports he had me in a choke hold one time.” Bilateral injuries to the elbows and upper right back have appeared to be rug burns, which would be consistent with the idea that she was forced onto her back and she was struggling. Right? More evidence of the rape.
Id. at 16-17.
[19] And finally, regarding domestic battery, the prosecutor stated,
I guess, [Hatcher] was, he was living there. He was eating there. He was using oxygen. It sounds like [C.L.] was putting food on the table, paying the utility bills, paying the rent, so that, to that extent they were both maintaining a common household.… They were living, let me back up to the specific line, “living as if a spouse of [C.L.]”… They were living in that manner and he should be found guilty of the domestic battery as well.
Id. at 16.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020 Page 13 of 15 [20] Hatcher argues that “[t]here is a reasonable possibility the jury used the same
evidence to convict [him] of all four crimes.” Appellant’s Br. at 28. Assuming
for argument’s sake that there is a reasonable possibility that the jury found that
he confined, strangled, and battered C.L. during the rape, as Hatcher suggests,
the facts that established the essential elements of the first three offenses did not
establish all the essential elements of rape, or of each other, as demonstrated by
the charging information. Therefore, we conclude that Hatcher has failed to
establish a violation of the Indiana Constitution’s double jeopardy clause.
Section 3 – Hatcher has failed to establish a violation of Indiana’s common-law double jeopardy rules. [21] Finally, we address Hatcher’s argument that his convictions violate Indiana’s
common-law double jeopardy rules. Our courts “have long adhered to a series
of rules of statutory construction and common law that are often described as
double jeopardy, but are not governed by the constitutional test set forth in
Richardson.” Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002). “One of those
rules prohibits ‘[c]onviction and punishment for a crime which consists of the
very same act as an element of another crime for which the defendant has been
convicted and punished.’” Taylor v. State, 101 N.E.3d 865, 872 (Ind. Ct. App.
2018) (alteration in Taylor) (quoting Richardson, 717 N.E.2d at 55 (Sullivan, J.,
concurring)).
[22] Hatcher contends that his strangulation, domestic battery, and rape convictions
“violate Indiana’s common law rules because the crimes of strangulation and
[battery] were the very same acts used to prove the force element of [his] rape
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020 Page 14 of 15 conviction.” Appellant’s Br. at 32. Notwithstanding the prosecutor’s
suggestion to the contrary, C.L. unequivocally testified that Hatcher strangled
her on the floor after the first act of nonconsensual sexual intercourse, which
occurred on the bed, and she did not specify when he put his arm around her
neck. Likewise, Hatcher punched and kicked C.L. and stomped on her ankles
after that first sexual act. In sum, Hatcher has failed to establish a violation of
Indiana’s common-law double jeopardy rules. Therefore, we affirm. 4
[23] Affirmed.
Bailey, J., and Altice, J., concur.
4 C.L.’s testimony indicates that the State easily could have avoided any potential double jeopardy problems by more carefully delineating the evidence used to establish the essential elements of each crime.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2613| May 7, 2020 Page 15 of 15