FILED Sep 04 2024, 9:14 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
IN THE
Court of Appeals of Indiana Maurice McGraw, Jr. Appellant/Defendant
v.
State of Indiana, Appellee/Plaintiff
September 4, 2024 Court of Appeals Case No. 24A-CR-16 Appeal from the Marion Superior Court The Honorable Angela Dow Davis, Judge Trial Court Cause No. 49D27-2210-F3-27157
Opinion by Judge Bradford Judge Crone concurs with opinion and Judge Tavitas concurs in part and dissents in part with opinion.
Court of Appeals of Indiana | Opinion 24A-CR-16 | September 4, 2024. Page 1 of 21 Bradford, Judge.
Case Summary [1] In September of 2022, Maurice McGraw, Jr., went to the residence of his
sometime girlfriend T.N., with whom he had a then-one-year-old child.
McGraw, apparently suspecting that T.N. had become romantically involved
with another, punched T.N. in the nose and face, kicked her, and dragged her
back inside by the hair when she tried to leave, all in the presence of their child,
causing two facial fractures. T.N. called 911 and identified McGraw as her
assailant. A jury convicted McGraw of Level 5 felony domestic battery causing
serious bodily injury and Level 6 felony domestic battery occurring in the
presence of a child, and the trial court sentenced him to six years of
incarceration with three years suspended to probation. McGraw contends that
the trial court abused its discretion in admitting several items of evidence and
that his convictions violate prohibitions against double jeopardy. We affirm.
Facts and Procedural History [2] In September of 2022, McGraw and T.N. were in an on-again-off-again
relationship and were the parents of then-one-year-old M.N. On September 30,
2022, T.N. began getting M.N. ready for bed and was preparing his bottle when
McGraw arrived to collect some of his belongings. T.N. walked to her
bedroom with M.N. in her arms, and McGraw followed. (McGraw accused
T.N. of “messing around with someone” and tried to access her telephone. Ex.
Court of Appeals of Indiana | Opinion 24A-CR-16 | September 4, 2024. Page 2 of 21 Vol. I p. 66. When T.N. refused to give McGraw access, he punched her on the
left side of her head.
[3] T.N. walked to the living room, and McGraw followed, saying, “‘I’ll dock yo
a[**] out,’ and ‘b[****] you are not going no where.’” Ex. Vol. I p. 66.
McGraw punched T.N. in the face and nose, kicked her, and told her that he
was going to kill her. When T.N. tried to leave through a sliding glass door,
McGraw dragged her back into the house by her hair. T.N. was short of breath,
dizzy, and wheezing. McGraw gathered his things and walked outside. T.N.
quickly locked the door behind him, but McGraw broke through it.
[4] When McGraw left again, T.N. ran outside and flagged down a motorist, using
his telephone to call 911 and then her mother. T.N. told the 911 dispatcher that
“[m]y baby daddy just beat me up […] Maurice McGraw.” State’s Ex. 16 at
0:15–0:16, 0:59. Indianapolis Metropolitan Police Officer Elizabeth Saxon was
the first officer to arrive, and T.N. told Officer Saxon that McGraw had
battered her. Upon arrival at Community Hospital East, T.N. was diagnosed
with a fracture on the orbital wall outside of her right eye and a zygomatic
fracture over her left eye. After being treated in the emergency department,
T.N. was seen by forensic nurse Jessica Cardenas of the Center of Hope, which
conducts forensic examinations of alleged victims of violence. T.N., who was
free to decline the assessment from Center of Hope, told Cardenas that
McGraw had caused her injuries.
[5] On October 5, 2022, the State charged McGraw with Level 3 felony criminal
confinement, Level 4 felony unlawful possession of a firearm by a serious
Court of Appeals of Indiana | Opinion 24A-CR-16 | September 4, 2024. Page 3 of 21 violent felon, Level 5 felony domestic battery resulting in serious bodily injury,
Level 5 felony theft, Level 6 felony domestic battery occurring in the presence
of a child, and Level 6 felony neglect of a dependent. McGraw’s jury trial
began on April 25, 2023. T.N. testified that she did not remember the details of
her interaction with McGraw on September 30, 2022, or the details of her
conversation with Officer Saxon. The audio recording of T.N.’s 911 call, in
which she identified her assailant as McGraw, was played for the jury, with no
objection from McGraw. Officer Saxon and Cardenas testified, over McGraw’s
objections, that T.N. had told them that McGraw had assaulted her. The jury
found McGraw guilty of Level 5 felony domestic battery and Level 6 felony
domestic battery, and, on December 22, 2023, the trial court sentenced him to
an aggregate sentence of six years of incarceration with three years suspended
to probation.
Discussion and Decision I. Evidence The trial court has broad discretion in ruling on the admission or exclusion of
evidence. Salle v. State, 785 N.E.2d 645, 650 (Ind. Ct. App. 2003), trans. denied.
A ruling on the admissibility of evidence will be disturbed only upon showing
an abuse of discretion. Id. A trial court abuses its discretion when its decision
is clearly against the logic and effect of the facts and circumstances before it.
Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001).
Court of Appeals of Indiana | Opinion 24A-CR-16 | September 4, 2024. Page 4 of 21 A. T.N.’s Statements Identifying McGraw as her Assailant
[6] McGraw contends that the trial court abused its discretion in admitting T.N.’s
statements to Officer Saxon and Cardenas, in which she identified him as the
person who had battered her, because they were inadmissible hearsay. Hearsay
is “a statement that: (1) is not made by the declarant while testifying at the trial
or hearing; and (2) is offered in evidence to prove the truth of the matter
asserted.” Ind. Evidence Rule 801(c). Hearsay is not admissible except as
provided by law or by other court rules. Ind. Evidence Rule 802.
1. Statement to Officer Saxon
[7] The State argues that T.N.’s statement to Officer Saxon is admissible as an
excited utterance. For a statement to be admitted as an excited utterance, three
elements must be met: a startling event occurred, the declarant was still under
the stress of the startling event when she made the statement, and the statement
concerned the startling event. Boatner v. State, 934 N.E.2d 184, 186 (Ind. Ct.
App. 2010) (citation omitted). The timing of the statement in relation to the
startling event is not dispositive, and the inquiry ultimately focuses on whether
the statement was reliable. Id.
[8] We conclude that the trial court did not abuse its discretion in concluding that
T.N.’s identification to Officer Saxon of McGraw as her assailant was
admissible as an excited utterance. When Officer Saxon spoke with T.N., she
was crying, nervous, scared, stressed, and appeared to be in and out of shock.
T.N.’s face, knees, and feet were visibly injured, and Officer Saxon was
concerned that T.N. was going to pass out from her injuries. T.N. reported,
Court of Appeals of Indiana | Opinion 24A-CR-16 | September 4, 2024. Page 5 of 21 even after being taken to the hospital following her conversation with Officer
Saxon, that her pain level was nine out of ten. This is sufficient to establish that
T.N. was still under the stress of the startling event when she identified
McGraw as her assailant to Officer Saxon. The trial court did not abuse its
discretion in admitting that identification as an excited utterance. See, e.g., id.
(concluding that statements made by declarant who was crying and disoriented
were excited utterances).
[9] McGraw argues that T.N. had had time to recover from the stress of the
startling event.
While a declaration is generally less likely to be admitted if it is made long after the startling event, e.g., Lewis v. State, 554 N.E.2d 1133 (Ind.1990), reh’g denied, the amount of time that has passed is not dispositive. Webb v. Lane, 922 F.2d 390, 394 (7th Cir. 1991). In some cases, we have held hearsay declarations made minutes after the startling event to be inadmissible. See, e.g., Kelley v. Dickerson, 213 Ind. 624, 13 N.E.2d 535 (1938), (statement 15 minutes after auto accident inadmissible). However, in other cases statements made hours after the event were admitted. Webb, 922 F.2d at 395. Again, the central issue is whether the declarant was still under the stress of excitement caused by the startling event when the statement was made. 13 R. MILLER, INDIANA PRACTICE § 803.102 at 607 (2d ed. 1995) (“Inquiry under Rule 803(2) focuses on whether the declarant remained excited”). Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996). As McGraw notes, the
record is not clear regarding the amount of time that had passed between the
startling event and T.N.’s statement to Officer Saxon. That said, because the
record contains ample evidence to support an inference that T.N. was still
under the stress of her battery when she spoke with Officer Saxon, the amount
Court of Appeals of Indiana | Opinion 24A-CR-16 | September 4, 2024. Page 6 of 21 of time that had passed is a secondary consideration, at best, under the
circumstances. McGraw’s argument is nothing more than a request to reweigh
the evidence, which we will not do. Alkhalidi v. State, 753 N.E.2d 625, 627 (Ind.
2001); see also Ind. Evidence Rule 104 (“The court must decide any preliminary
question about whether a witness is qualified, a privilege exists, or evidence is
admissible.”).
2. Statement to Cardenas
[10] McGraw also challenges the admission of T.N.’s statement to Cardenas that he
was her assailant. Statements made for the purpose of receiving medical
treatment are an exception to the hearsay rule. Ind. Evidence Rule 803(4);
Walters v. State, 68 N.E.3d 1097, 1100 (Ind. Ct. App. 2017), trans. denied. This
exception is based on the understanding that a person is unlikely to lie to
medical professionals because doing so might jeopardize the provider’s ability
to treat her. VanPatten v. State, 986 N.E.2d 255, 260 (Ind. 2013). A two-step
analysis applies to evidence that is admitted pursuant to Evidence Rule 803(4):
First, “is the declarant motivated to provide truthful information in order to
promote diagnosis and treatment,” and second, “is the content of the statement
such that an expert in the field would reasonably rely on it in rendering
diagnosis or treatment.” Id. McGraw contends only that the first requirement
was unsatisfied here. The State argues that there is sufficient evidence in the
record to sustain a reasonable inference that T.N. was highly motivated to
provide truthful information to Cardenas in order to promote her diagnosis and
treatment.
Court of Appeals of Indiana | Opinion 24A-CR-16 | September 4, 2024. Page 7 of 21 [11] We need not address this claim on the merits; in light of the recording of T.N.’s
911 call and Officer Saxon’s testimony, any error the trial court might have
made in admitting Cardenas’s testimony can only be considered harmless.
Errors in the admission of evidence “are to be disregarded as harmless unless
they affect the substantial rights of the party.” Mathis v. State, 859 N.E.2d 1275,
1280 (Ind. Ct. App. 2007). An error in the admission of evidence may be
harmless when the evidence is merely cumulative of other properly admitted
evidence. Id. Because it was, as best, cumulative of other identification
evidence, any error the trial court may have made in the admission of
Cardenas’s testimony was harmless.
B. Medical Records
[12] McGraw contends that the trial court abused its discretion in admitting
statements that were contained in T.N.’s medical records, which were admitted
as business records, regarding the nature and extent of her injuries, specifically
that she had sustained two orbital fractures and would need surgery. As with
McGraw’s previous argument, any error the trial court may have committed in
this regard can only be considered harmless. See id. T.N. testified that, after
evaluation and x-rays at the hospital on the night in question, she had been
diagnosed with fractures on the right side of her face. While T.N. also testified
that she had not been told that she needed to return for surgery, we fail to see
how this inconsistency could have affected the verdict, as it bears no obvious
relationship to any of the elements of either of McGraw’s convictions. See id.
Court of Appeals of Indiana | Opinion 24A-CR-16 | September 4, 2024. Page 8 of 21 II. Double Jeopardy [13] McGraw contends that his convictions for Level 5 felony and Level 6 felony
domestic battery violate Indiana’s prohibitions against double jeopardy.
Whether convictions violate Indiana’s prohibition against double jeopardy is a
question of law reviewed de novo. Wadle v. State, 151 N.E.3d 227, 237 (Ind.
2020) (citing A.M. v. State, 134 N.E.3d 361, 364 (Ind. 2019)). In Wadle, the
Indiana Supreme Court held that Article 1, section 14, of the Indiana
Constitution applies only to “successive prosecutions for the same offense.”
Wadle, 151 N.E.3d at 245–46.
[14] “Substantive double-jeopardy claims principally arise in one of two situations:
(1) when a single criminal act or transaction violates multiple statutes with
common elements, or (2) when a single criminal act or transaction violates a
single statute and results in multiple injuries.” Powell v. State, 151 N.E.3d 256,
263 (Ind. 2020). The analysis laid out in Wadle governs the first category of
cases, while Powell’s analysis covers the second. Id. As an initial matter, the
parties seem to disagree on what type of case this is, with the State urging use of
the Powell analysis while McGraw cites to Wadle. While it is true that the two
offenses for which McGraw was convicted are defined in the same section of
the Indiana code (which could be characterized as a “single statute”), we
nonetheless agree with McGraw that Wadle governs this case, not Powell. Powell
explicitly states that the question in cases to which it applies is “not whether
one offense is included in the other [but i]nstead […] whether ‘the same act may
be twice punished’ as ‘two counts of the same offense.’” Powell, 151 N.E.3d at
Court of Appeals of Indiana | Opinion 24A-CR-16 | September 4, 2024. Page 9 of 21 263 (citation and footnote omitted, emphasis in Powell). It seems clear that if
two offenses have different elements, they are not, in fact, the “same offense.”
For purposes of double-jeopardy analysis, different subsections detailing
different elements should be treated as “multiple statutes” pursuant to Wadle,
even if they are subsections of the same section of the Indiana Code.
[15] That said, Wadle provides that when a single criminal act violates multiple
statutes with common elements and one or more victims, courts “first look to
the statutory language” for each charge. 151 N.E.3d at 248. If the language of
either statute “clearly permits” multiple punishments, there is no double-
jeopardy violation. Id. Here, neither of the relevant subsections of Indiana
Code section 35-42-2-1.3 clearly permits multiple punishments,1 so we proceed
to step two.
[16] The second step is to determine whether either of the offenses is inherently or
factually included in the other, both of which McGraw claims are the case.
Wadle, 151 N.E.3d at 248. An offense that is inherently included in another is
one 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
1 Neither of the relevant subsections explicitly provides that an act that violates it may also be punished pursuant to any other provision of the Indiana Code.
Court of Appeals of Indiana | Opinion 24A-CR-16 | September 4, 2024. Page 10 of 21 (3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission. Ind. Code § 35-31.5-2-168. An offense is factually included in another if the
charging information alleges “that the means used to commit the crime charged
include all of the elements of the alleged lesser included offense.” Norris v. State,
943 N.E.2d 362, 368–69 (Ind. Ct. App. 2011), trans. denied. The Indiana
Supreme Court has recently clarified that “when assessing whether an offense is
factually included, a court may examine only the facts as presented on the face
of the charging instrument.” A.W. v. State, 229 N.E.3d 1060, 1067 (Ind. 2024)
(emphasis in A.W.). “Step 2 has core constraints: it does not authorize courts
to probe other facts, such as evidence adduced from trial.” Id. “The factually
included inquiry at this step is thus limited to facts on the face of the charging
instrument.” Id. “‘If neither offense is an included offense of the other (either
inherently or as charged), there is no violation of double jeopardy’ and the
analysis ends—full stop.” Id. at 1071 (quoting Wadle, 151 N.E.3d at 248).
[17] We have little trouble concluding that neither McGraw’s Level 6 felony
domestic battery charge nor his Level 5 felony is included in the other, either
inherently or as charged.
[A] person who knowingly or intentionally […] touches a family or household member in a rude, insolent, or angry manner […] commits domestic battery[,] [….] a Level 6 felony if [t]he person who committed the offense is at least eighteen (18) years of age and committed the offense
Court of Appeals of Indiana | Opinion 24A-CR-16 | September 4, 2024. Page 11 of 21 against a family or household member in the physical presence of a child less than sixteen (16) years of age, knowing that the child was present and might be able to see or hear the offense [….] [and] is a Level 5 felony if [t]he offense results in serious bodily injury to a family or household member. Ind. Code § 35-42-2-1.3(a), -1.3(b)(2), -1.3(c)(1). As can readily be seen, the
relevant statutory language for each of the two offenses contains at least one
element the other does not: the Level 5 felony requires proof of serious bodily
injury and the Level 6 felony requires proof that the domestic battery was
committed in the presence of a child, knowing that the child was present and
might have been able to see or hear it. This is not, as McGraw argues, a
situation where the two provisions differ only in that one involves a “less
serious harm or risk of harm” than the other; the two offenses involve different
harms entirely. See Ind. Code § 35-31.5-2-168(3).
[18] Similarly, neither of McGraw’s offenses, as charged, is factually included in the
other. The charging information for McGraw’s two offenses provides as
follows:
COUNT III On or about September 30, 2022, MAURICE MCGRAW Jr. did knowingly or intentionally touch [T.N.], a family or household member, in a rude, insolent or angry manner, resulting in serious bodily injury, that is: extreme pain from multiple injuries sustained by [T.N.], including, two orbital fractures; [….] COUNT V On or about September 30, 2022, MAURICE MCGRAW Jr. being at least eighteen (18) years of age, did knowingly touch [T.N.], a family or household member, in a rude, insolent, or
Court of Appeals of Indiana | Opinion 24A-CR-16 | September 4, 2024. Page 12 of 21 angry manner, and MAURICE MCGRAW Jr. committed said offense in the presence of a child less than 16 years of age, knowing that the child was present and might be able to see or hear the offense[.] Appellant’s App. Vol. II p. 29. The evidence tending to prove T.N.’s serious
bodily injury does nothing to establish that the offense took place in the
presence of a child who might have been able to see or hear it, and vice versa.2
McGraw has failed to establish a substantive double-jeopardy violation.
[19] We affirm the judgment of the trial court.
Crone, J., concurs with opinion.
Tavitas, J., concurs in part and dissents in part with opinion.
ATTORNEY FOR APPELLANT Lisa Johnson Brownsburg, Indiana ATTORNEYS FOR APPELLEES
2 Because neither of McGraw’s offenses is inherently or factually (as charged) included in the other, we need not proceed to step three of the Wadle analysis; put another way, we engage in no analysis of the evidence actually presented at trial. If a court has found that one offense is included in the other—either inherently or as charged— the court must then (and only then) “examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial.” Wadle, 151 N.E.3d at 249 (emphasis added) (citing Bigler v. State, 602 N.E.2d 509, 521 (Ind. Ct. App. 1992), trans. denied). Step 3 functions as a cabined version of Richardson’s actual evidence test, and it serves an important, practical role in our double jeopardy analysis: to facilitate the distinction between what would otherwise be two of the “same” offenses. See id. at 249 n.27. So, at this final step, a court may only then probe the underlying facts—as presented in the charging instrument and adduced at trial—to determine whether a defendant’s actions were “so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” Id. at 249. A.W., 229 N.E.3d at 1071.
Court of Appeals of Indiana | Opinion 24A-CR-16 | September 4, 2024. Page 13 of 21 Theodore E. Rokita Indiana Attorney General Alexandria Sons Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 24A-CR-16 | September 4, 2024. Page 14 of 21 Crone, Judge, concurring.
[20] I concur with the lead opinion’s disposition of the evidentiary issues raised by
McGraw. And I reluctantly agree that McGraw’s convictions do not violate
prohibitions against double jeopardy under Wadle as that test is currently
structured.
[21] I write separately to point out that T.N.’s statement to forensic nurse Cardenas
that McGraw was her assailant was not made for the purpose of receiving
medical diagnosis or treatment, and therefore Cardenas’s testimony regarding
this statement should have been excluded as inadmissible hearsay. T.N. had
already been diagnosed and treated by the time she spoke with Cardenas, who
testified that her role is to document patients’ injuries and share information
with law enforcement. See Tr. Vol. 3 at 187 (“So we get consents if the patient
would like … photos of their injuries and if they would like any of the
information released to law enforcement.”), 188 (“I get information about the
person that was the assailant and where it happened and when.… I would like
to know where the incident happened just so that we … can notify the correct
law enforcement jurisdiction, and then for safety planning for the patient.”). It
was error to admit Cardenas’s testimony regarding T.N.’s statement. I agree
with my colleagues that the error was harmless, but write separately in hopes of
providing future guidance on this issue.
[22] I also feel compelled to comment on our supreme court’s abandonment of the
“actual evidence” test from Richardson v. State, 717 N.E.2d 32 (Ind. 1999), in
favor of the Wadle test. In seeking to provide clarity, the court instead sowed
Court of Appeals of Indiana | Opinion 24A-CR-16 | September 4, 2024. Page 15 of 21 confusion. When the court did away with Richardson, it took away flexibility
and replaced it with rigid logic flowing from federal substantive double
jeopardy standards. Instead of looking to the evidence used to convict in the
first instance and concluding that the State has proven only one act and is
seeking two punishments, we must now apply this new test, which kept two
parts of former double jeopardy analysis: lesser included offenses (a statutory
creation) and the continuing crime doctrine (an old common law theory). This
test does not work well in a case like this because it is reminiscent of federal
jurisprudence and our law does not work like federal law.
[23] Federal courts use a “unit of prosecution” analysis for substantive double
jeopardy to make things easier. See, e.g., United States v. Haynes, 62 F.4th 454,
460 (8th Cir. 2023) (“If a defendant is charged with a single crime in multiple
counts, those counts are multiplicitous, and subjecting the defendant to multiple
punishments violates the Double Jeopardy Clause of the Fifth Amendment.
The operative question is whether the facts underlying each count were
intended by Congress to constitute separate units of prosecution.”) (citations
and quotation marks omitted). And that analysis works as a cohesive theory in
the federal system because of the comprehensive legislative history regarding
where Congress delineated each unit of prosecution, which is the precise act
that Congress sought to penalize.
[24] But without such legislative history in Indiana, we struggle to discern between
statutory elements and units of prosecution and to make any sense of this. I
believe that Judge Tavitas’s analysis is more sensible and sound, but I am
Court of Appeals of Indiana | Opinion 24A-CR-16 | September 4, 2024. Page 16 of 21 compelled by supreme court precedent to agree with Judge Bradford’s
application of the Wadle test, which has led to a result that seems illogical and
unjust. A.W. v. State appears to be a recognition by our supreme court that its
new double jeopardy jurisprudence requires further fine tuning. I hope that fine
tuning continues.
Court of Appeals of Indiana | Opinion 24A-CR-16 | September 4, 2024. Page 17 of 21 Tavitas, Judge, concurring in part and dissenting in part.
[25] I agree with Judge Bradford that the trial court did not abuse its discretion by
admitting the evidence in this case. I respectfully dissent, however, from
Judge Bradford’s conclusion that the two domestic battery convictions here
do not constitute double jeopardy under Wadle. I would hold that McGraw’s
convictions constitute double jeopardy because the offenses are inherently
included and draw from the same transaction.
[26] I agree with Judge Bradford that, under Wadle step one, the domestic battery
statute here does not clearly permit multiple punishment, and we, therefore,
proceed to step two. In step two, however, McGraw’s convictions constitute
inherently included offenses under Indiana Code Section 35-31.5-2-168(3),
which provides that an offense is an “[i]ncluded offense” if it “differs from
the offense charged only in the respect that a less serious harm or risk of
harm to the same person, property, or public interest, or a lesser kind of
culpability, is required to establish its commission.”
[27] Here, the domestic battery offenses were premised on the same conduct—
rude, insolent, or angry touching of T.N., a family or household member.
Ind. Code § 35-42-2-1.3(a)(1); see Kerner v. State, 178 N.E.3d 1215, 1231 (Ind.
Ct. App. 2021) (finding significant, when determining whether offenses are
included under Indiana Code Section 35-31.5-2-168(3), whether the offenses
each require “some conduct the other does not”), trans. denied. The offenses
here only differed with respect to circumstances that enhanced the level of
Court of Appeals of Indiana | Opinion 24A-CR-16 | September 4, 2024. Page 18 of 21 the offense; McGraw was convicted of: (1) domestic battery as a Level 5
felony because of the victim’s serious bodily injuries; and (2) domestic
battery as a Level 6 felony because the battery occurred in the presence of a
child. Ind. Code § 35-42-2-1.3(b)(2), -(c)(1).
[28] By codifying domestic battery resulting in serious bodily injury as a Level 5
felony and domestic battery in the presence of a child as a Level 6 felony,
our legislature has implicitly determined that the former enhancing
circumstance is more serious than the latter. I would, thus, hold that the two
battery offenses here constitute included offenses because the underlying
conduct is the same, and each offense only differs from the other “in the
respect that a less serious harm or risk of harm to the same person, property,
or public interest, or a lesser kind of culpability, is required to establish its
commission.” Ind. Code § 35-31.5-2-168(3); cf. Massey v. State, 803 N.E.2d
1133, 1138 (Ind. Ct. App. 2004) (holding that aggravated battery as a Class B
felony and battery as a Class C felony were included offenses under Indiana
Code Section 35-31.5-2-168(3)) (citing Simmons v. State, 793 N.E.2d 321, 326
(Ind. Ct. App. 2003)), trans. denied. This holding is also consistent with
Wadle’s recognition that the enhancement, or “elevation,” of an offense is
“not a separate offense or conviction.” Wadle v. State, 151 N.E.3d 227, 254
(Ind. 2020).
[29] Having concluded that the offenses are inherently included here, analysis
under Wadle step three is required. Under this step, we examine the facts
Court of Appeals of Indiana | Opinion 24A-CR-16 | September 4, 2024. Page 19 of 21 underlying the offenses, “as presented in the charging instrument and as
adduced at trial.” Id. at 249. “Based on this information, a court must ask
whether 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.” Id. If the defendant’s acts constitute a single transaction, the
multiple convictions constitute double jeopardy. Id.
[30] Here, the State charged McGraw, in part, with two counts of domestic
battery. The first charge alleged that McGraw “did knowingly or
intentionally touch [T.N.], a family or household member, in a rude,
insolent or angry manner, resulting in serious bodily injury, that is: extreme
pain from multiple injuries sustained by [T.N.], including, two orbital
fractures.” Appellant’s App. Vol. II p. 29. As for the second charge, the State
alleged that McGraw, “being at least eighteen (18) years of age, did
knowingly touch [T.N.], a family or household member, in a rude, insolent,
or angry manner” and that McGraw “committed said offense in the presence
of a child less than 16 years of age, knowing that the child was present and
might be able to see or hear the offense.” Id.
[31] The facts presented at trial indicate that, on or about the evening of
September 30, 2022, McGraw struck T.N. in front of their child in several
places around the residence because McGraw believed T.N. was “messing
around with someone” else. Ex. Vol. I p. 66. Although the State charged
McGraw with two counts of domestic battery—one because of T.N.’s
Court of Appeals of Indiana | Opinion 24A-CR-16 | September 4, 2024. Page 20 of 21 injuries and one because of the presence of the child—the facts show that the
acts draw from the same transaction under Wadle; McGraw’s acts occurred
within a compressed period of time, in the same general location, and all
shared the same principal purpose.
[32] Accordingly, under Wadle step three, McGraw’s two domestic battery
convictions constitute double jeopardy.
Court of Appeals of Indiana | Opinion 24A-CR-16 | September 4, 2024. Page 21 of 21