John Thompson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 18, 2017
• Docket: 49A04-1701-CR-36
• 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 Aug 18 2017, 5:58 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew D. Anglemeyer Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

John Thompson, August 18, 2017 Appellant-Defendant, Court of Appeals Case No. 49A04-1701-CR-36 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa Borges, Judge Appellee-Plaintiff. Trial Court Cause No. 49G04-1607-F1-25387

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-36 | August 18, 2017 Page 1 of 7 Case Summary [1] John Thompson (“Thompson”) was convicted of two counts of Rape, as Level

1 felonies,1 Criminal Confinement, as a Level 3 felony,2 Aggravated Battery, a

Level 3 felony,3 and Strangulation, as a Level 6 felony.4 He challenges his

convictions for Aggravated Battery and Strangulation, presenting the sole issue

of whether those convictions violate double jeopardy prohibitions because they

are based upon the same act as that charged in the Confinement count. We

affirm in part, reverse in part, and remand with instructions that the trial court

vacate the Aggravated Battery and Strangulation convictions.

Facts and Procedural History [2] During the evening of June 27, 2016, Thompson and K.S. agreed to meet at

Thompson’s Indianapolis apartment. A disagreement over money arose, and

K.S. prepared to leave the apartment. When she stood, Thompson began to tug

at her shorts. K.S. tried to move out of Thompson’s reach by dropping to the

floor and pushing with her feet; however, Thompson grabbed K.S. under her

arms and forced her back onto the sofa.

1 Ind. Code § 35-42-4-1(a)(1). 2 I. C. § 35-42-3-3(a). 3 I. C. § 35-42-2-1.5. 4 I. C. § 35-42-2-9(b).

Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-36 | August 18, 2017 Page 2 of 7 [3] K.S. banged on the wall and screamed in an attempt to get help; her efforts

were unavailing. Thompson put his arm around K.S.’s neck and strangled her

into unconsciousness. When K.S. regained consciousness, she was gasping for

air. Thompson threatened to shoot K.S. and she agreed that she would be quiet

and compliant. K.S. asked to be allowed to leave and Thompson responded by

saying that he would kill her.

[4] Thompson then forced K.S. to engage in oral sex and intercourse. He placed a

knit hat over her face and walked her to the apartment building exit. He once

more threatened K.S. that she would be killed if she called police.

[5] K.S. went to her vehicle and summoned police. Having sustained significant

injuries, K.S. was taken to the hospital. She was able to identify the apartment

of her attacker, and Thompson was soon identified as the assailant. He was

charged with two counts of Rape, and one count each of Criminal

Confinement, Aggravated Battery, and Strangulation. At the conclusion of a

bench trial conducted on November 21, 2016, Thompson was found guilty as

charged.

[6] Thompson was given concurrent thirty-five-year sentences for each Rape

conviction, concurrent nine-year sentences for Criminal Confinement and

Aggravated Battery, and a concurrent one-year sentence for Strangulation. The

aggregate sentence imposed was thirty-five years imprisonment, with five years

suspended to probation. He now appeals.

Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-36 | August 18, 2017 Page 3 of 7 Discussion and Decision [7] Thompson argues that his convictions for Criminal Confinement, Aggravated

Battery, and Strangulation were all based upon his one act of strangling K.S., in

violation of Indiana’s prohibitions against double jeopardy. He directs our

attention to the double jeopardy clause of the Indiana Constitution, which

provides, in relevant part, that “[n]o person shall be put in jeopardy twice for

the same offense.” Ind. Const. Art. 1, § 14. He further directs our attention to

Indiana Code Section 35-38-1-6, providing

Whenever

(1) A defendant is charged with an offense and an included offense in separate counts; and

(2) The defendant is found guilty of both counts;

judgment and sentence may not be entered against the defendant for the included offense.

[8] Pursuant to Indiana Code Section 35-31.5-2-168(1), an included offense is 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[.]”

[9] Whether convictions violate double jeopardy presents a pure question of law,

which we review de novo. Whitham v. State, 49 N.E.3d 162, 168 (Ind. Ct. App.

2015). An offense is a factually lesser-included offense when the charging

Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-36 | August 18, 2017 Page 4 of 7 instrument alleges “the means used to commit the crime charged include all of

the elements of the alleged lesser included offense.” Smith v. State, 881 N.E.2d

1040, 1046 (Ind. Ct. App. 2008).

[10] In Count III, the State charged that Thompson committed Criminal

Confinement:

On or about June 28, 2016, JOHN MICHAEL THOMPSON did knowingly or intentionally confine [K.S.] without the consent of [K.S.], said act resulting in serious bodily injury to [K.S.], to wit, unconsciousness[.]

(App. at 27.)

[11] In Count IV, the State charged Thompson with Aggravated Battery, as follows:

On or about June 28, 2016, JOHN MICHAEL THOMPSON did knowingly or intentionally inflict injury on [K.S.] that created a substantial risk of death[.]

[12] In Count V, the State charged Thompson with Strangulation, as follows:

On or about June 28, 2016, JOHN MICHAEL THOMPSON, in a rude, insolent or angry manner, did knowingly apply pressure to the throat or neck, or obstruct the nose or mouth of [K.S.], another person, in a manner that impeded the normal breathing or the blood circulation of the other person[.]

Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-36 | August 18, 2017 Page 5 of 7 [13] The State alleged and proved that Thompson committed Criminal Confinement

by strangling K.S. into unconsciousness. The Aggravated Battery count, and

the State’s proof adduced thereon, concerned the same act of strangulation with

the same injury, that is, unconsciousness. The Strangulation count and proof

thereon concerned the same act. On the facts of this case, the Aggravated

Battery and Strangulation offenses are factually lesser-included offenses of

Criminal Confinement as they were “established by proof of the same material

elements or less than all the material elements” required to establish Criminal

Confinement, as charged. See I. C. § 35-31.5-2-168(1). It was impossible for the

fact-finder to have found that Thompson criminally confined K.S. by strangling

her into unconsciousness without also having found the facts that Thompson

strangled K.S. and caused unconsciousness.

[14] “A double jeopardy violation occurs when judgments of conviction are entered

for the same criminal act and cannot be remedied by the ‘practical effect’ of

concurrent sentences or by merger after conviction has been entered.” West v.

State, 22 N.E.3d 872, 874-75 (Ind. Ct. App. 2014). Thompson’s convictions for

Aggravated Battery and Strangulation must be vacated to cure the double

jeopardy violation.

Conclusion [15] Thompson’s convictions for Rape and Criminal Confinement are affirmed. His

convictions for Aggravated Battery and Strangulation are reversed. We remand

Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-36 | August 18, 2017 Page 6 of 7 to the trial court with instructions to vacate the convictions and sentences for

those offenses.

[16] Affirmed in part, reversed in part, and remanded.

Baker, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-36 | August 18, 2017 Page 7 of 7