Kory Tremaine Johnson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Apr 18 2018, 8:56 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Scott L. Barnhart Curtis T. Hill, Jr. Brooke Smith Attorney General of Indiana Keffer Barnhart LLP Caroline G. Templeton Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kory Tremaine Johnson, April 18, 2018

Appellant-Defendant, Court of Appeals Case No. 82A05-1710-CR-2263

v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable Kelli E. Fink, Magistrate Appellee-Plaintiff. The Honorable David D. Kiely, Judge Trial Court Cause Nos. 82C01-1704-F5-1977 82C01-1610-F5-6049

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Case Summary 1 [1] In March of 2017, Appellant-Defendant Kory Johnson was at the Evansville

home of Jermekca Outlaw. After a heated discussion on the telephone with

another person, Johnson fired several shots out the back door. Outlaw left,

taking her three children and a young niece. When Outlaw returned some time

later, Johnson was on her front porch. Outlaw managed to get inside with the

children, at which point Johnson repeatedly asked to be let in. When Outlaw

refused, Johnson unsuccessfully attempted to enter through several windows,

eventually trying a kitchen window in the back of the house. When Outlaw

again refused Johnson entry, he shot three times at the doorknob of the back

door. [2] Johnson was charged with two counts of Level 6 felony carrying a handgun

without a license, Level 5 felony criminal recklessness, and Level 6 felony

attempted residential entry and requested a speedy trial. The day before trial

(which was set for the last day of the speedy-trial period), the State notified the

trial court that it could not secure the presence of a key witness for trial and

requested a continuance. The State had first attempted to contact the witness

eight days before trial and had never received any response. The trial court

granted the State’s request for a continuance of approximately one month, and

1 Oral argument was held in this case on March 8, 2018, at Ivy Tech Community College in Lafayette, Indiana. We would like to thank the faculty, staff, and students of Ivy Tech for their hospitality and counsel for the high quality of their arguments.

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Johnson was eventually convicted of Level 6 felony carrying a handgun without

a license, Level 5 felony criminal recklessness, and Level 6 felony attempted

residential entry. The trial court sentenced Johnson to seven years of

incarceration and revoked the probation imposed in an earlier case. Johnson

contends that the trial court erred in granting the State’s request for a

continuance and that his convictions violate Indiana constitutional prohibitions

against double jeopardy, specifically, the actual evidence test. Because we

disagree with both contentions, we affirm.

Facts and Procedural History [3] On January 19, 2017, in cause number 82C01-1610-F5-6049 (“Cause No.

6049”),2 Johnson pled guilty to Level 6 felony battery against a public safety

official and Class A misdemeanor resisting law enforcement. On March 23,

2017, the trial court sentenced Johnson to two years of incarceration, all

suspended to probation. [4] Meanwhile, on or about March 20, 2017, Jermekca Outlaw had met Johnson,

and the two began a sexual relationship. On March 31, 2017, Johnson

collected Outlaw from her home on Washington Avenue in Evansville at

around 8:00 p.m. and drove her around for a while. Johnson seemed

2 Unless noted, all material in this document refers to Cause No. 1977. In fact, Johnson makes no specific argument regarding the probation revocation in Cause No. 6049. Perhaps Johnson assumes that a reversal of his convictions in Cause No. 1977 would automatically lead to a reversal of his probation revocation in Cause No. 6049, as they were the basis of the revocation. Be that as it may, we decline to entertain granting this relief when no challenge has been made.

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intoxicated and argumentative and repeatedly called Outlaw a “b****[.]” Tr.

Vol. III p. 21. Outlaw walked home. [5] Later, at around 11:00 p.m., Outlaw was at home with her three children and a

niece when Johnson returned, arguing with somebody on the telephone.

Johnson pulled out a handgun and began to load it. Johnson’s telephone kept

ringing, and he kept telling those on the other end that he was at Outlaw’s

house and to “pull up on him.” Tr. Vol. III p. 23. Outlaw became concerned

with Johnson’s actions and told him that he had to leave. Johnson’s telephone

rang again, and he told the caller, “‘Do I have to send shots to let you know

that I’m on Washington?’” Tr. Vol. III p. 24. Johnson opened the back door

and “shot off like four shots[.]” Tr. Vol. III p. 24. Outlaw took the children

and left. [6] Outlaw returned a while later to find Johnson on her front porch. Outlaw took

the children inside and locked the door. Outlaw refused to let Johnson in

despite several requests, and he made several attempts to enter through

windows, eventually trying a kitchen window on the back of the house. When

Outlaw closed the window, Johnson asked, “‘So you really not gonna let me in

here?’” Tr. Vol. III p. 32. Outlaw replied “‘No[,]’” and Johnson said, “‘If you

don’t open this door I’m about to send shots through it.’” Tr. Vol. III p. 32.

Outlaw retreated to the hall closet (where she had told the children to hide), and

Johnson fired three shots in an attempt to shoot the knob off of the back door.

Around this time, police arrived.

Court of Appeals of Indiana | Memorandum Decision 82A05-1710-CR-2263 | April 18, 2018 Page 4 of 14 [7] On April 4, 2017, the State charged Johnson with Level 5 felony carrying a

handgun without a license with a felony conviction within the past five years,

Level 5 felony carrying a handgun without a license with a prior conviction,

Level 5 felony criminal recklessness, and Level 6 felony attempted residential

entry. On April 5, 2017, Johnson requested a speedy trial pursuant to Criminal

Rule 4(B). On June 13, 2017, the day before trial was scheduled, the State

moved to continue the trial, which motion was granted. The basis of the State’s

request for continuance was that it had been unable to secure the presence of

Evansville Police Detective John Pieszchalski, a crime scene technician who

processed the scene on Washington Avenue and collected a firearm and several

shell casings. On June 15, 2017, Johnson moved for discharge, which motion

was denied the same day. [8] On July 18, 2017, a jury found Johnson guilty of Class A misdemeanor carrying

a handgun without a license, Level 5 felony criminal recklessness, and Level 6

felony attempted residential entry. On August 11, 2017, the trial court found

that Johnson’s carrying a handgun without a license conviction was a Level 6

felony by virtue of a prior conviction for the same offense and/or a felony

conviction within the past fifteen years. [9] On September 11, 2017, the trial court found that Johnson had violated the

terms of probation imposed in Cause No. 6049 by committing the crimes

charged in Cause No. 1977, granted the State’s petition to revoke, and ordered

that he serve his two-year sentence. On September 12, 2017, the trial court

sentenced Johnson to an aggregate sentence of seven years of incarceration in

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Cause No. 1977. On November 17, 2017, this court granted Johnson’s motion

to consolidate his appeals in Cause Nos. 6049 and 1977.

Discussion and Decision I. Speedy Trial [10] The right of an accused to a speedy trial is guaranteed by the Sixth Amendment

to the United States Constitution and by Article I, Section 12 of the Indiana

Constitution. Clark v. State, 659 N.E.2d 548, 551 (Ind. 1995). This

“fundamental principle of constitutional law” has long been zealously guarded

by our courts. Id. (quoting Castle v. State, 237 Ind. 83, 85, 143 N.E.2d 570, 572

(1957)). Criminal Rule 4 implements a defendant’s right to a speedy trial.

Criminal Rule 4(B)(1) provides, in part, as follows:

If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar. Provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as set forth in subdivision (A) of this rule.

[11] While Criminal Rule 4 implements the defendant’s right to a speedy trial, Otte v.

State, 967 N.E.2d 540, 545 (Ind. Ct. App. 2012), it does not contemplate a mere

technical means to escape prosecution. Austin v. State, 997 N.E.2d 1027, 1041

(Ind. 2013). After according the trial court’s findings reasonable deference, Court of Appeals of Indiana | Memorandum Decision 82A05-1710-CR-2263 | April 18, 2018 Page 6 of 14

appellate review is for clear error. Austin, 997 N.E.2d at 1040. This Court will

neither reweigh the evidence nor determine the credibility of witnesses and will

consider only the probative evidence and reasonable inference supporting the

judgment. Id. A clear error is one that leaves the Court with a definite and firm

conviction that a mistake has been made. Id. [12] “The absence of a key witness through no fault of the State is good cause for

extending the time period requirements for early trial under Rule 4.” Woodson

v. State, 466 N.E.2d 432, 434 (Ind. 1984). If at the time the defendant requests

discharge the court is “satisfied that there is evidence for the state, which cannot

then be had, that reasonable effort has been made to procure the same and there

is just ground to believe that such evidence can be had within ninety (90) days,

the cause may be continued[.]” Crim. R. 4(D). [13] The record indicates that Detective Pieszchalski was emailed on June 6, 2017,

notifying him that Johnson’s trial was to begin on June 14, 2017. On June 12,

2017, somebody from the Vanderburgh County Prosecutor’s Office emailed

Detective Pieszchalski, asking when he could participate in a witness

conference. There is no indication that Detective Pieszchalski responded to

either of these emails. [14] On June 13, 2017, the State requested a continuance on the basis that Detective

Pieszchalski’s presence at trial, despite attempts to contact him, could not be

ensured. In its verified motion to continue trial, the State claimed that it had

become aware of Detective Pieszchalski’s unavailability on June 12, 2017; had

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been unable to contact him via email, cellular telephone, social media, or his

chain of command; and believed him to be out of the state. (Appellant’s App.

Vol. II 115). The State also indicated that it had confirmed with Detective

Pieszchalski’s Captain that he would return to work in July and requested a

continuance to July 10, 2017. [15] Johnson argues that the State’s efforts to secure Detective Pieszchalski for trial

were not reasonable and that the trial court therefore committed clear error in

granting the State’s motion to continue trial. Keeping in mind that the trial

court was in the best position to evaluate the reasonableness of the State’s

efforts to secure Detective Pieszchalski for trial, we conclude that Johnson has

failed to establish clear error. [16] The record indicates that securing the presence of law enforcement officers via

email (without formally issuing a subpoena) is the standard operating procedure

for the Vanderburgh Prosecutor’s office. It is reasonable to infer from this that

the procedure has worked well for the office in the past and that if securing the

presence of law enforcement witnesses ever became an issue, subpoenas would

be issued. As for the timing of the prosecutor’s attempt to secure Detective

Pieszchalski’s testimony, we cannot say that Johnson has established that it was

unreasonably late. Even eight days before trial would have been more than

enough time to secure Detective Pieszchalski’s testimony in some other form,

had the prosecutor’s office known that it was necessary to do so. The problem

here was that Detective Pieszchalski was seemingly completely incommunicado

by the time the deputy prosecutor attempted to contact him.

Court of Appeals of Indiana | Memorandum Decision 82A05-1710-CR-2263 | April 18, 2018 Page 8 of 14 [17] It is also worth noting that the continuance asked for was relatively short, at less

than a month, because the State asked for just enough time to ensure Detective

Pieszchalski’s availability for trial and no more. Even though Criminal Rule

4(C) contemplates continuances of up to ninety days, the State requested a

continuance of only twenty-six days. Under the circumstances of this case, we

conclude that Johnson has failed to establish that the trial court committed clear

error in granting the State’s request for a continuance.

II. Double Jeopardy [18] Johnson contends that his three convictions in Cause No. 1977 violate

constitutional prohibitions against double jeopardy. As mentioned, the jury

found Johnson guilty of Class A misdemeanor carrying a handgun without a

license,3 Level 5 felony criminal recklessness, and Level 6 felony attempted

residential entry. In Richardson v. State, 717 N.E.2d 32 (Ind. 1999), the Indiana

Supreme Court held “that two or more offenses are the ‘same offense’ in

violation of Article I, Section 14 of the Indiana Constitution, if, with respect to

… the actual evidence used to convict, the essential elements of one challenged

offense also establish the essential elements of another challenged offense.” Id.

at 49–50.

To show that two challenged offenses constitute the “same offense” in a claim of double jeopardy, a defendant must demonstrate a reasonable possibility that the evidentiary facts

3 The trial court later found the offense to be a Level 6 felony by virtue of a prior conviction for the same offense and/or a felony conviction within the past fifteen years.

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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. at 53. “In determining the facts used by the fact-finder to establish the

elements of each offense, it is appropriate to consider the charging information,

jury instructions, and arguments of counsel.” Lee v. State, 892 N.E.2d 1231,

1234 (Ind. 2008) (citing Spivey v. State, 761 N.E.2d at 832 (Ind. 2002);

Richardson, 717 N.E.2d at 54 n.48). [19] If each conviction requires at least one unique evidentiary fact, no violation of

the actual evidence test occurs. Weddle v. State, 997 N.E.2d 45, 47 (Ind. Ct.

App. 2013), trans. denied; see also Berg v. State, 45 N.E.3d 506, 509 (Ind. Ct. App.

2015) (concluding that the double jeopardy clause is not violated when the

evidentiary facts establishing the essential elements of one offense also establish

only one or even several, but not all, of the essential elements of a second

offense). Allegations that multiple convictions violate double jeopardy

prohibitions are reviewed de novo. Weddle, 997 N.E.2d at 47. [20] Johnson has failed to establish that his conviction for carrying a handgun

without a license violates the actual evidence test. The charging information

alleged that “on or about March 31, 2017, Kory Tremaine Johnson … did carry

a handgun in any vehicle or on or about his body without being licensed[.]”

Appellant’s App. Vol. II p. 96. Outlaw testified that Johnson had a gun at her

kitchen table on the night of March 30, 2017, which is sufficient, by itself, to

sustain Johnson’s conviction for carrying a handgun without a license. The

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prosecutor pointed to that fact during her closing argument before detailing

Johnson’s continuing criminal conduct. Moreover, the jury instruction

specified what conduct was required to convict Johnson of carrying a handgun

without a license: “Johnson … carried a handgun in a vehicle or on or about

his person … away from [his] dwelling, property or fixed place of business.”

Appellant’s App. Vol. II p. 159. Nowhere in any of this is any suggestion that

use of the handgun was necessary to complete, or was used to prove, the crime

of carrying a handgun without a license. [21] We further conclude that the jury was presented with more than one unique

fact to support Johnson’s conviction for criminal recklessness. The State

alleged that “on or about March 31, 2017, Kory Tremaine Johnson did

recklessly, knowingly, or intentionally perform an act that created a substantial

risk of bodily injury to another person by shooting a firearm into an inhabited

dwelling[.]” Appellant’s App. Vol. II p. 96. The jury instructions for criminal

recklessness indicated that State was required to prove that “Johnson …

recklessly, knowingly or intentionally … performed an act that created a

substantial risk of bodily … injury to another person, and … by shooting a

firearm into an inhabited dwelling of Jermekca Outlaw[.]” Appellant’s App.

Vol. II p. 160. Outlaw’s testimony about being home with three of her children

and a niece when she heard gunshots, and evidence of a bullet hole and bullet

found in Outlaw’s son’s room, tend to establish the above. More importantly,

performing an act that created a substantial risk of bodily injury and shooting a

firearm into an inhabited dwelling do not tend to prove any element of

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Johnson’s other charges. Johnson has failed to establish that his criminal

recklessness conviction violates prohibitions against double jeopardy. [22] Finally, we conclude that Johnson’s attempted residential entry conviction is

supported by unique evidentiary facts. The charging information for his count

alleged that

on or about March 31, 2017, Kory Tremaine Johnson did attempt to commit the crime of Residential Entry: knowingly or intentionally breaking and entering the dwelling of Jermekca Outlaw … by performing conduct that constituted a substantial step toward the commission of said crime, to wit: opening windows, and/or lifting screens, and/or damaging a door knob, and/or reaching through a hole[.]

Appellant’s App. Vol. II p. 96. [23] The record contains evidence that Johnson lifted all of the screens on Outlaw’s

windows in an attempt to get into the home after she locked him out and

refused entrance, and Outlaw saw him attempt to put his hand through the hole

he caused by shooting the doorknob off. These are evidentiary facts that had no

relevance to Johnson’s criminal recklessness or carrying a handgun without a

license charges. The jury instructions also focused on specific, unique conduct

that related only to the attempted residential entry conviction: “Johnson … did

knowingly or intentionally attempt to break and enter the dwelling of Jermekca

Outlaw … by opening windows, and/or lifting screens, and/or damaging a

door knob, and/or reaching through a hole[.]” Appellant’s App. Vol. II pp.

161–62.

Court of Appeals of Indiana | Memorandum Decision 82A05-1710-CR-2263 | April 18, 2018 Page 12 of 14 [24] Johnson argues that the prosecutor’s closing argument created a reasonable

probability that the jury used the same facts to convict Johnson on both the

residential entry and criminal recklessness charges. We disagree that the

argument had this effect. For one thing, the prosecutor made the argument to

rebut Johnson’s previous assertion that there was “no attempt to get into that

house[.]” Tr. Vol. II p. 148. Countering the assertion, the prosecutor argued

that

I do not know how you can reach that conclusion that there was no evidence the defendant tried to gain entry into the home. Between screaming at the home’s occupant. Between having to be kicked off the front porch, between shooting out the doorknob, checking the windows, lifting the screens, sticking a hand through a hole that was created when he shot off the doorknob, that seems to be evidence to me of attempting to get into the home.

Tr. Vol. II p. 157. [25] Although one fact (the shooting at the doorknob) could have been used to

support, in part, the convictions for both attempted residential entry and

criminal recklessness, this is not enough to violate the actual evidence test. See

Borum v. State, 951 N.E.2d 619, 626 (Ind. Ct. App. 2011) (a single fact

supporting a first charge and also included among additional facts supporting a

second charge does not indicate a reasonable probability that the jury based its

findings of guilt on the same evidence, which is especially true in cases

involving protracted criminal episodes). In summary, we conclude that

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Johnson has failed to establish that any of his three convictions violate

constitutional prohibitions against double jeopardy.

Conclusion [26] Johnson’s speedy-trial rights were not violated in Cause No. 1977, as we

conclude that, under the circumstances of this case, the State’s efforts to secure

Detective Pieszchalski’s presence for trial were reasonable, entitling it to the

continuance it received. Also, we conclude that none of Johnson’s three

convictions in Cause No. 1977 were based on the same actual evidence. [27] We affirm the judgment of the trial court.

Robb, J., and Altice, J, concur.

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