FILED Sep 24 2020, 8:33 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald J. Berger Curtis T. Hill, Jr. Law Office of Donald J. Berger Attorney General of Indiana South Bend, Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joel Barrozo, September 24, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2037 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Appellee-Plaintiff Marnocha, Judge Trial Court Cause No. 71D02-1812-F5-247
Baker, Senior Judge.
Court of Appeals of Indiana | Opinion 19A-CR-2037 | September 24, 2020 Page 1 of 15 [1] Joel Barrozo appeals his convictions for three counts of Level 5 Felony Reckless
Homicide,1 two counts of Class A Misdemeanor Reckless Driving, 2 and one
count of Class A Misdemeanor Leaving the Scene of an Accident,3 arguing that
the convictions violate the prohibition against double jeopardy. The State
concedes that one of the reckless driving convictions must be vacated on double
jeopardy grounds. We agree, and remand with instructions to vacate one of the
reckless driving convictions and resentence Barrozo accordingly. In all other
respects, we affirm.
Facts [2] Around 6:15 in the evening on December 16, 2018, members of the St. Joseph
County Fatal Crash Team (FACT) were dispatched to an intersection in South
Bend to investigate a three-vehicle accident. When FACT officials arrived, they
discovered a black Nissan Altima with significant damage, a brown
Thunderbird resting in the southbound lane of traffic, and, a short distance up
the road, a silver Dodge Avenger resting along the northbound lane of traffic.
[3] The driver of the Avenger was not present when FACT officials arrived.
Witnesses stated that the driver, later identified as Barrozo, exited the vehicle
after it came to a stop and fled the scene. FACT officials assessed the damage
1 Ind. Code § 35-42-1-5. 2 Ind. Code § 9-21-8-52(a). 3 Ind. Code § 9-26-1-1.1(b)(1).
Court of Appeals of Indiana | Opinion 19A-CR-2037 | September 24, 2020 Page 2 of 15 to the Avenger and concluded that the damage to the front of that vehicle was
consistent with the rear damage to the Nissan. FACT officials determined that
the Nissan had been struck from behind by the Avenger and pushed into the
southbound lane of traffic, where it struck the Thunderbird.
[4] Inside the Nissan, FACT officials discovered the driver, Marvi Thomas, and
her son, Christopher Poe. Thomas and Poe were extracted from the vehicle
and pronounced dead. Inside the Thunderbird were the driver, Elizabeth Kelly,
and passengers Christopher Wilson and Kelly’s 17-month-old daughter, I.J.
Kelly, Wilson, and I.J. were all seriously injured: Kelly required surgery to treat
her injuries; Wilson suffered broken ribs and teeth and had bruising around his
eyes; and I.J. had head and neck trauma, a broken collar bone, and a broken
arm. I.J. was transported to a hospital, where she later died.
[5] Police were eventually able to identify Barrozo as the driver of the Avenger. In
December 2018, the State charged Barrozo with three counts of Level 5 felony
leaving the scene of an accident resulting in death; two counts of Level 6 felony
leaving the scene of an accident resulting in serious bodily injury; three counts
of Level 5 felony reckless homicide; and two counts of Class A misdemeanor
reckless driving.
[6] On July 2, 2019, Barrozo pleaded guilty as charged without a plea agreement.
The trial court conducted a sentencing hearing on August 2, 2019. The trial
court entered judgments of conviction and sentenced Barrozo as follows:
Court of Appeals of Indiana | Opinion 19A-CR-2037 | September 24, 2020 Page 3 of 15 • Three counts of Level 5 felony reckless homicide, for which Barrozo received five years apiece. • Two counts of Class A misdemeanor reckless driving, for which Barrozo received one year apiece. • The trial court reduced one count of leaving the scene of an accident resulting in death to a Class A misdemeanor and sentenced Barrozo to one year.
The trial court did not enter judgments of conviction on the remaining charges
based on double jeopardy concerns. It ordered all sentences to be served
consecutively, resulting in an aggregate term of eighteen years imprisonment.
Barrozo now appeals.
Discussion and Decision 4
[7] Very recently, our Supreme Court conducted a substantive overhaul of
Indiana’s double jeopardy precedent. Wadle v. State, No. 19S-CR-340, 2020
WL 4782698 (Ind. Aug. 18, 2020); Powell v. State, No. 19S-CR-527, 2020 WL
4783108 (Ind. Aug. 18, 2020). The Court overruled the long-standing
Richardson v. State, 717 N.E.2d 32 (Ind. 1999), and crafted new rules and
analyses for this area of jurisprudence. Our Supreme Court explained that there
are two distinct scenarios of substantive double jeopardy—(1) when a
defendant’s single act implicates multiple criminal statutes and (2) when a
4 Barrozo pleaded guilty. As such, he should have raised this challenge in the context of a petition for post- conviction relief rather than a direct appeal. E.g., Lee v. State, 816 N.E.2d 35, 40 (Ind. 2004); Mapp v. State, 770 N.E.2d 332, 333-34 (Ind. 2002). Nevertheless, we elect to address his argument.
Court of Appeals of Indiana | Opinion 19A-CR-2037 | September 24, 2020 Page 4 of 15 defendant’s single act harms multiple victims under the same criminal statute—
and distinct analyses for each. Both scenarios are present in this case.
I. Single Act, Multiple Statutes: Wadle [8] When a defendant’s single act or transaction implicates multiple criminal
statutes, there is a two-part inquiry:
First, a court must determine, under our included-offense statutes, whether one charged offense encompasses another charged offense. Second, a court must look at the underlying facts—as alleged in the information and as adduced at trial—to determine whether the charged offenses are the ‘same.’ If the facts show two separate and distinct crimes, there’s no violation of substantive double jeopardy, even if one offense is, by definition, ‘included’ in the other. But if the facts show only a single continuous crime, and one statutory offense is included in the other, then the presumption is that the legislation intends for alternative (rather than cumulative) sanctions. The State can rebut this presumption only by showing that the statute—either in express terms or by unmistakable implication—clearly permits multiple punishment.
Wadle, slip op. p. 3.
[9] First, we must look to the statutory language itself. If the language of the
statutes at issue “clearly permits multiple punishment, either expressly or by
unmistakable implication, the court’s inquiry comes to an end and there is no
violation of substantive double jeopardy.” Id. at 23 (internal footnote omitted).
[10] Here, we must consider whether Barrozo’s convictions for reckless homicide,
reckless driving, and leaving the scene of an accident violate the prohibition
Court of Appeals of Indiana | Opinion 19A-CR-2037 | September 24, 2020 Page 5 of 15 against double jeopardy. A person commits the crime of reckless homicide
when he “recklessly kills another human being.” I.C. § 35-42-1-5. A person
commits Class A misdemeanor reckless driving when (in relevant part) he
operates a vehicle and recklessly “drives at such an unreasonably high rate of
speed . . . under the circumstances” that he endangers the safety or property of
others and causes bodily injury to a person. I.C. § 9-21-8-52(a). Finally, a
person commits Class A misdemeanor leaving the scene of an accident if he
was the operator of a vehicle involved in an accident resulting in bodily injury
and leaves the scene of the accident without providing the necessary
information, assistance, or notice to law enforcement. I.C. § 9-26-1-1.1(b)(1).
[11] As none of these statutes clearly permits multiple punishment (either expressly
or by unmistakable implication), we must turn to the second part of the
statutory analysis. Specifically, we must apply our included-offense statutes to
determine statutory intent. Wadle, slip op. p. 23. A trial court may not enter
judgment of conviction and sentence for both an offense and an included
offense. Ind. Code § 35-38-1-6. An “included offense” is an offense that:
(1) 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;
(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or
(3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person,
Court of Appeals of Indiana | Opinion 19A-CR-2037 | September 24, 2020 Page 6 of 15 property, or public interest, or a lesser kind of culpability, is required to establish its commission.
Ind. Code § 35-31.5-2-168. If none of the offenses are included offenses of the
others (either inherently or as charged), then there is no double jeopardy
violation. Wadle, slip op. p. 24.
[12] In cases involving a comparison of more than two statutes, we believe that a
visual aid may be helpful.
Level 5 Felony Reckless Class A Misdemeanor Class A Misdemeanor Homicide Reckless Driving Leaving the Scene of an Accident
A person who A person who operates A person who operates a vehicle and a motor vehicle involved in an accident • recklessly • recklessly and • kills another • drives at an human being unreasonably • knowingly or high rate of speed intentionally commits Level 5 felony under the • leaves the scene reckless homicide. circumstances, of the accident • endangering the without providing safety or property necessary of others information, assistance, and • and causing notice to law bodily injury to a enforcement person • and the accident commits Class A results in bodily misdemeanor reckless injury to another driving. person
Court of Appeals of Indiana | Opinion 19A-CR-2037 | September 24, 2020 Page 7 of 15 commits Class A Misdemeanor leaving the scene of an accident.
[13] The first statute—reckless homicide—involves, plainly and simply, the reckless
killing of another person. There is no overlap between that statute and the
other two—in other words, it is not an included offense of the others, nor are
they of it.5
[14] As to the latter two statutes—reckless driving and leaving the scene of an
accident—while there is some overlap, it does not rise to the level of making
one an included offense of the other. Both require the defendant to have been
operating a vehicle and both require a person to have sustained bodily injury.
Reckless driving, however, requires that the defendant drove his vehicle in a
reckless manner, thereby endangering others and causing the bodily injury. In
contrast, leaving the scene of an accident merely requires that the defendant’s
vehicle was involved in an accident (he need not have caused the accident or the
bodily injury) and that the defendant then left the scene of the accident without
providing his identifying information, among other things. Under these
circumstances, we find that reckless driving is not an included offense of leaving
the scene of an accident, or vice versa. Cf. Wadle, slip op. p. 33-34 (finding that
operating while intoxicated causing serious bodily injury is an included offense
5 Nor is there a problem with the way in which the offenses were charged in this case, because the reckless homicide counts were based on the deaths of Thomas, Poe, and I.J., while the bodily injuries involved in the other charges were based on the injuries sustained by Wilson and Kelly. We will consider below whether the multiple charges of the same offense based on multiple victims are permissible.
Court of Appeals of Indiana | Opinion 19A-CR-2037 | September 24, 2020 Page 8 of 15 of leaving the scene of an accident during or after committing the offense of
operating while intoxicated causing serious bodily injury).
[15] Because we have found that none of the offenses are included in the others,
there is no double jeopardy violation stemming from the convictions for
reckless homicide, reckless driving, and leaving the scene of an accident. Id. at
32. Therefore, we need not consider the second part of the Wadle analysis,
which focuses on the facts underlying those offenses.
II. Single Act, Multiple Victims: Powell [16] In resolving a claim of multiplicity—the charging of a single offense in multiple
counts—we must determine “whether—and to what extent—the applicable
statute permits the fragmentation of a defendant’s criminal act into distinct
‘units of prosecution.’” Powell, slip op. p. 7. Our Supreme Court explains that
“[w]hereas the ‘elements of an offense define what must be proved to convict a
defendant of a crime,’ a criminal statute’s ‘unit of prosecution defines how many
offenses the defendant has committed.’” Id. at 7 n.7 (quoting United States v.
Rentz, 777 F.3d 1105, 1117 (10th Cir. 2015) (Matheson, J., concurring))
(emphasis in original).
[17] This analysis is (potentially) a two-step process. First, we must review the text
of the statute. If the statute “indicates a unit of prosecution, then we follow the
legislature’s guidance and our analysis is complete.” Id. at 7-8. But if the
statute is ambiguous, we proceed to the second step, pursuant to which we must
determine whether the facts indicate a single offense or distinguishable offenses.
Court of Appeals of Indiana | Opinion 19A-CR-2037 | September 24, 2020 Page 9 of 15 To answer this question, “we ask whether the defendant’s actions are ‘so
compressed in terms of time, place, singleness of purpose, and continuity of
action as to constitute a single transaction.’” Id. at 8 (quoting Walker v. State,
932 N.E.2d 733, 735 (Ind. Ct. App. 2010)). If the “criminal acts are sufficiently
distinct, then multiple convictions may stand; but if those acts are continuous
and indistinguishable, a court may impose only a single conviction.” Id.
[18] Turning first to the question of whether the reckless homicide statute contains a
“unit of prosecution,” we find it necessary to dig a bit deeper into this vague
term. As our Supreme Court turned to Rentz for guidance on this term, we will
follow suit. The Rentz Court explained that a unit of prosecution is “the
minimum amount of activity a defendant must undertake, what he must do, to
commit each new and independent violation of a criminal statute,” moving on
to focus on the statute’s verb. 777 F.3d at 1109. In conducting its analysis, it
provided an example relevant to this case: “if a law’s verb says it’s a crime to
kill someone, we usually think a defendant must kill more than one person to be
found guilty of more than one offense. That’s the action necessary to support
Court of Appeals of Indiana | Opinion 19A-CR-2037 | September 24, 2020 Page 10 of 15 each and every unit of prosecution.” Id. (emphases original).6
A. Reckless Homicide [19] Here, we first consider Barrozo’s three reckless homicide convictions. As noted
above, a person who recklessly kills another person has committed Level 5
felony reckless homicide. I.C. § 35-42-1-5. The gravamen of this offense is the
act of killing another person and, as in the example provided by Rentz, we find
that our legislature unambiguously intends the act of killing another person to
be this statute’s unit of prosecution. See also Powell, slip op. p. 11 (observing that
under result-based statutes, such as reckless homicide, the crime is complete so
long as the result is reached and the defendant acted with the requisite mental
state; therefore, where several deaths occur in the course of a single incident,
the offense has been committed several times over). As such, because Barrozo
killed three people, he has committed three instances of this crime.
6 The concurring opinion of Judge Matheson, to which our Supreme Court cited, gives another helpful example: “if the elements of an offense consist of at least two acts, X (e.g., use of a firearm) and Y (e.g., crime of violence), and in the same course of conduct the defendant has done X once and Y twice, then he or she has committed one crime if the unit of prosecution is X, two crimes if the unit of prosecution is Y, and one crime if the unit of prosecution is X and Y combined.” Id. at 1117 (Matheson, J., concurring). Judge Matheson also pointed to the decision of the Fourth Circuit in United States v. Shrader, 675 F.3d 300, 313 (4th Cir. 2012). In Shrader, the Fourth Circuit considered the federal stalking statute, which includes two possible units of prosecution—(1) the intent to harm a particular victim and (2) a course of conduct. The Shrader Court concluded that the plain language of the statute makes the unit of prosecution the victim, noting that the “statute does not punish fungible acts, such as possession of cocaine in two different receptacles, but rather defines the defendant’s crime—and therefore the unit of prosecution—in terms of his intent to strike fear in a particular individual.” Id. (internal citation omitted). The defendant in that case had engaged in a single course of conduct that harassed and intimidated two people—the victim and her husband. The Shrader Court concluded that two stalking charges were permissible because each was based on a different victim and, therefore, a different unit of prosecution. Id. at 313-14.
Court of Appeals of Indiana | Opinion 19A-CR-2037 | September 24, 2020 Page 11 of 15 [20] Our legislature is tasked with defining crimes and may include units of
prosecution if it sees fit to do so. Here, the General Assembly has
unambiguously provided that the act of killing another person is the unit of
prosecution of the reckless homicide statute. As such, our inquiry ends here,
and we need not consider the second step of the Powell analysis. Barrozo’s
three reckless homicide convictions do not violate the prohibition against
double jeopardy.
B. Reckless Driving [21] The State concedes that Barrozo’s two reckless driving convictions cannot stand
based on double jeopardy concerns. Appellee’s Br. p. 12. This concession,
however, occurred before Powell revamped the relevant double jeopardy
landscape. Therefore, we will consider the reckless driving convictions
notwithstanding the State’s concession.
[22] As noted above, a person commits reckless driving when (in relevant part) he
operates a vehicle and recklessly “drives at such an unreasonably high rate of
speed . . . under the circumstances” that he endangers the safety or property of
others. I.C. § 9-21-8-52(a). The offense is elevated from a Class C to a Class A
misdemeanor if the reckless driving causes bodily injury to a person. Id.
[23] In Powell, our Supreme Court distinguished between conduct- and result-based
statutes:
A conduct-based statute, under our criminal code, consists of an offense defined by certain actions or behavior (e.g., operating a
Court of Appeals of Indiana | Opinion 19A-CR-2037 | September 24, 2020 Page 12 of 15 vehicle) and the presence of an attendant circumstance (e.g., intoxication). Under these statutes, the crime is complete once the offender engages in the prohibited conduct, regardless of whether that conduct produces a specific result (e.g., multiple victims). The focus—or “gravamen”—of the statutory offense is the defendant’s actions, not the consequences of those actions. To be sure, a specific result or consequence (e.g., death or serious bodily injury) may enhance the penalty imposed. But “multiple consequences do not establish multiple crimes,” since the crime may still be committed without the consequence.
Slip op. p. 10 (quoting Mathews v. State, 849 N.E.2d 578, 582 (Ind. 2006))
(emphases original) (internal citations omitted).
[24] We find our Supreme Court’s analysis of the double jeopardy implications of
the resisting law enforcement statute in Paquette v. State to be relevant here. 101
N.E.3d 234 (Ind. 2018). Most compellingly, the resisting law enforcement
statute in effect at the time Paquette was decided, like the reckless driving
statute, had a subsection that created “the foundation for the offense in
question.” Id. at 240. Without this foundation, the subsequent subsections—
which enhanced the offense based on a variety of circumstances—“could not
stand.” Id. Our Supreme Court inferred, based in part on this method of
crafting the statute, that the legislature did not intend multiple occurrences of
Court of Appeals of Indiana | Opinion 19A-CR-2037 | September 24, 2020 Page 13 of 15 the enhancing circumstances stemming from just one violation of the
foundational offense to be multiple offenses.7
[25] Furthermore, the Paquette Court found it noteworthy that other statutes, such as
operating a vehicle while intoxicated (OWI) and arson, explicitly allow
multiple convictions if there are multiple victims. See, e.g., I.C. § 9-30-5-4(b)
(elevating OWI to a Level 5 felony if it causes serious bodily injury and
explicitly providing that it is a separate offense for each person whose serious
bodily injury is caused by the OWI conduct); Ind. Code § 35-43-1-1(e)
(elevating arson to a higher level of felony if it results in bodily injury or serious
bodily injury and explicitly providing that it is a separate offense for each
person who suffers a bodily injury or serious bodily injury as a result of the
arson). The reckless driving statute does not have a comparable provision. As
our Supreme Court observed, “Our legislature is aware that multiple
convictions for multiple harms caused by a single violation require explicit
7 Since Paquette was decided, the General Assembly has amended the resisting law enforcement statute, which now explicitly allows for multiple convictions when there are multiple victims: (i) A person who commits an offense described in subsection (c) commits a separate offense for each person whose bodily injury, serious bodily injury, catastrophic injury, or death is caused by a violation of subsection (c). (j) A court may order terms of imprisonment imposed on a person convicted of more than one (1) offense described in subsection (c) to run consecutively. Consecutive terms of imprisonment imposed under this subsection are not subject to the sentencing restrictions set forth in IC 35-50-1-2(c) through IC 35- 50-1-2(d). Ind. Code § 35-44.1-3-1. This amendment further highlights the key role played by the legislature in setting the parameters of double jeopardy jurisprudence.
Court of Appeals of Indiana | Opinion 19A-CR-2037 | September 24, 2020 Page 14 of 15 authorization and we trust that they would have done so if that was their
intent.” Paquette, 101 N.E.3d at 241.
[26] The crime of reckless driving, like the crime of OWI, is complete once the
offender engages in the prohibited conduct. See Powell, slip op. p. 10 (discussing
OWI). For both offenses, the underlying crime is a Class C misdemeanor that
is complete as soon as the conduct occurs. The offense may be elevated—and
the penalty enhanced—if a specific result or consequence occurs, such as bodily
injury (elevating reckless driving to a Class A misdemeanor) or endangering a
person (elevating OWI to a Class A misdemeanor). I.C. 9-21-8-52(a); Ind.
Code § 9-30-5-2(b). But the crime occurs—and may be punished—only once,
because the unit of prosecution is the act of reckless driving. Therefore, both of
Barrozo’s reckless driving convictions may not stand. We remand with
instructions to vacate one of those convictions and resentence Barrozo
accordingly.
[27] The judgment of the trial court is affirmed and remanded with instructions to
vacate one of the reckless driving convictions and resentence Barrozo
[28] Bailey, J., and Vaidik, J., concur.
Court of Appeals of Indiana | Opinion 19A-CR-2037 | September 24, 2020 Page 15 of 15