Jason Humphrey v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Jul 10 2018, 8:15 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as CLERK Indiana Supreme Court precedent or cited before any court except for the Court of Appeals and Tax Court purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Victoria L. Bailey Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jason Humphrey, July 10, 2018

Appellant-Defendant, Court of Appeals Case No. 18A-CR-335

v. Appeal from the Marion Superior Court State of Indiana, The Honorable Christina R. Klineman, Judge Appellee-Plaintiff. The Honorable Marshelle Broadwell, Magistrate Trial Court Cause No. 49G17-1710-F6-41998

Bradford, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-335 | July 10, 2018 Page 1 of 4

Case Summary [1] In October of 2017, Jason Humphrey argued with his domestic partner, put his

hands around her neck, and pushed her, causing her head to strike a car door.

The State charged Humphrey with, and he was convicted of, Level 6 felony

domestic battery and Class A misdemeanor domestic battery. Because the

parties agree that Humphrey’s misdemeanor conviction must be vacated, we

affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History [2] A.J. and Humphrey have been romantically involved for many years and have

one son together. On October 28, 2017, Humphrey was driving with A.J. as a

passenger in the front seat and their son was in back. As it happened, A.J. was

convinced that Humphrey was cheating on her, and, when they arrived at their

Marion County home, A.J. told Humphrey that if he could cheat then she

could cheat as well. Humphrey ran around to the passenger side of the vehicle,

put his hands around A.J.’s neck, and pushed her head back into the car seat,

causing A.J.’s head to bang against the inside of the car door. Humphrey’s and

A.J.’s son was still in the car. [3] On October 30, 2017, the State charged Humphrey Level 6 felony domestic

battery (committed in the presence of a child below the age of sixteen) and

Class A misdemeanor domestic battery. On January 30, 2018, the trial court

found Humphrey guilty as charged and sentenced him to 180 days of

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incarceration with 166 suspended for felony conviction and fourteen days for

the misdemeanor, to be served concurrently.

Discussion [1] Humphrey argues that his convictions violate Indiana’s prohibitions against

double jeopardy. Whether multiple convictions violate Indiana’s constitutional

or common-law prohibitions against double jeopardy is a question of law that is

reviewed de novo. Goldsberry v. State, 821 N.E.2d 447, 458 (Ind. Ct. App. 2005)

(citing Spears v. State, 735 N.E.2d 1161, 1166 (Ind. 2000)). Two or more

offenses are the “same offense” in violation of Article 1, Section 14 of the

Indiana Constitution where, with respect to either the statutory elements of the

challenged offense or the actual evidence used to convict, the essential elements

of one offense also establish the essential elements of another offense.

Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). [2] Humphrey contends, and the State concedes, that the same actual evidence

established the facts needed to prove Counts I and II both domestic battery

offenses. While we agree with the parties that one of Humphrey’s convictions

must be vacated, it is on a slightly different basis. As Justice Sullivan

recognized in his Richardson concurrence, Indiana common law prohibits

“‘[c]onviction and punishment for a crime which is a lesser-included offense of

another crime for which the defendant has been convicted and punished.’”

Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quoting Richardson, 717

N.E.2d at 56 (Sullivan, J., concurring)). Humphrey’s conviction for Level 6

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felony domestic battery conviction required proof of all of the elements of Class

A misdemeanor domestic battery plus proof that he was over eighteen years old

and the offense was committed in the presence of a child below the age of

sixteen, knowing that the child was present and might be able to see and hear

the offense. See Ind. Code §§ 35-42-2-1.3(a); -1.3(b)(2). In other words, as

charged and proved in this case, the Class A misdemeanor domestic battery is a

lesser-included offense of the Level 6 felony. We therefore remand with

instructions to vacate Humphrey’s conviction and sentence for Class A

misdemeanor domestic battery. See Richardson, 717 N.E.2d at 55 (“Because

both convictions therefore cannot stand, we vacate the conviction with the less

severe penal consequences and leave standing the robbery conviction.”). [3] We reverse the judgement of the trial court in part and remand with instructions

to vacate Humphrey’s Class A misdemeanor domestic battery conviction.

Baker, J., and Kirsch, J., concur.

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