Rodriguez v. State

714 N.E.2d 667, 1999 Ind. App. LEXIS 1022, 1999 WL 431164
CourtIndiana Court of Appeals
DecidedJune 28, 1999
Docket49A02-9807-CR-590
StatusPublished
Cited by25 cases

This text of 714 N.E.2d 667 (Rodriguez v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rodriguez v. State, 714 N.E.2d 667, 1999 Ind. App. LEXIS 1022, 1999 WL 431164 (Ind. Ct. App. 1999).

Opinions

[669]*669OPINION

RILEY, Judge

STATEMENT OF THE CASE

Defendanb-Appellant Miguel Rodriguez (“Rodriguez”) appeals following his convictions of battery, a Class C felony, and criminal recklessness, a Class D felony. Ind.Code §§ 35-42-2-1; 35-42-2-2.

We affirm.

ISSUES

We review three issues:

1. Whether Rodriguez’ convictions for both battery and criminal recklessness violate double jeopardy principles.
2. Whether the trial court exceeded its authority by denying Rodriguez visitation with his daughter in his home during his period of home detention.
3. Whether there is sufficient evidence to rebut Rodriguez’ claim of self-defense.

STATEMENT OF THE FACTS

On January 14, 1996, Rodriguez’ daughter Heather, then twelve years old, was visiting Rodriguez at his apartment. When Heather’s mother Dawn DeWeese (“DeWeese”) arrived to pick up Heather, a dispute arose between DeWeese and Rodriguez. Rodriguez, who is confined to a wheelchair, reached for a gun. DeWeese left the apartment and as she got into the truck where Heather was waiting, Rodriguez began firing shots toward the truck. He continued shooting as DeWeese tried to maneuver her truck around the parking lot, eventually positioning himself beside the driver’s side of the truck and firing at DeWeese, injuring her arm and stomach. In connection with these events, Rodriguez was convicted of battery, a Class C felony, and criminal recklessness, a Class D felony.

DISCUSSION AND DECISION

I. Double Jeopardy

Rodriguez first argues that his convictions for both criminal recklessness and battery violate double jeopardy principles because criminal recklessness is a lesser included offense of battery. We disagree. In Games v. State, 684 N.E.2d 466 (Ind.1997), modified on other grounds, 690 N.E.2d 211 (Ind.1997), cert. denied, our supreme court set forth the proper analysis for double jeopardy claims. “ ‘The applicable rule is 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. at 475 (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932)). In applying the above rule, “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.” Games, 684 N.E.2d at 477.

In the case before us, Rodriguez was convicted of battery as a Class C felony and criminal recklessness as a Class D felony. The battery statute provides in relevant part:

Sec. 1. (a) A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is ...
(3) a Class C felony if it ... is committed by means of a deadly weapon ...

Ind.Code § 35-42-2-1(a)(3). The criminal recklessness statute provides in relevant part:

(b) A person who recklessly, knowingly, or intentionally performs:
(1) an act that creates a substantial risk of bodily injury to another person ... commits criminal recklessness, a Class B misdemeanor. However, the offense is a ...
(2) Class D felony if it is committed while armed with a deadly weapon....

Ind.Code § 35-42-2-2(b)(1)(2).

Looking only to the statutory elements of these offenses, it is clear that each statute requires proof of an additional fact which the other does not. Battery requires proof of a knowing or intentional rude, insolent, or angry touching; it does not require proof of a substantial risk of bodily injury. [670]*670Criminal recklessness requires proof of a reckless, knowing, or intentional act that creates a substantial risk of bodily injury; it does not require proof of a touching. Therefore, we find no double jeopardy violation in Rodriguez’ convictions for both battery and criminal recklessness.

II. Visitation Restrictions

Rodriguez next argues that the trial court exceeded its authority by disallowing Rodriguez to have visitation with Heather in his home during his period of home detention. We disagree. Placement in an in-home detention program is a matter of grace and a conditional liberty that is a favor, not a right. Brooks v. State, 692 N.E.2d 951, 953 (Ind.Ct.App.1998), trans. denied. It is an alternative to commitment to the Department of Correction and made at the sole discretion of the trial court. Id. This Court recently analogized home detention to probation, emphasizing that both are governed by the trial court’s discretionary powers. Id. Based on that similarity, this Court held in Brooks that the standard of review for a petition for termination of in-home detention privileges is analogous to that of a probation revocation. Id.

Similarly, we hold that in reviewing the validity of home detention conditions, we employ the same standard of review as that used in reviewing the validity of probation conditions. Trial courts are accorded broad discretion in establishing conditions of probation. Gordy v. State, 674 N.E.2d 190, 191 (Ind.Ct.App.1996). A probation order will be set aside on appeal only upon a showing that the trial court abused its discretion. Reinbold v. State, 555 N.E.2d 463, 471 (Ind.1990), overruled on other grounds. Applying this standard to the home detention conditions set by the trial court in the present case, we cannot say that the court abused its discretion. Rodriguez was sentenced to two years executed. The trial court allowed Rodriguez to serve his sentence in home detention rather than jail because his disability would have been difficult to accommodate in jail. As a condition of this arrangement, the trial court ordered that Rodriguez not be permitted to visit with Heather in his home. “[A]s far as the visitation of the child, I’m not going to permit the child to visit him in the home. Because of the possible exposure of the mother who has custody. And the violence that did take place here.” It is clear that the trial court’s decision was not arbitrary but rather was motivated by concern for Heather and her mother.

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Bluebook (online)
714 N.E.2d 667, 1999 Ind. App. LEXIS 1022, 1999 WL 431164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriguez-v-state-indctapp-1999.