KIRSCH, Judge.
Shiloh Jones ("Jones") appeals his convictions and sentence for domestic battery
We affirm in part, reverse in part, and remand.
In April 2011, Jones, his girlfriend R.O., and their two children, both of whom were under two years of age, lived together in a house in Indianapolis. During the afternoon of April 13, 2011, Jones and R.O. got into an argument about housework and child care responsibilities. A short time later, the verbal altercation became physical; Jones poured baby formula on R.O.'s face, slapped and bit her face, and choked her. Tr. at 34. Jones also pushed R.O. down on the couch, sat on her, and told her she couldn't leave. Id. R.O. took their one-year-old child into the couple's bedroom, but Jones "told [R.O.] to come out of the room[,] ... grabbed [her] by the hair and snatched [her] out of the room ... draggin' from the floor onto the livin' room [sic]...." Id. at 36. At various times thereafter, Jones slapped, pushed, and choked R.O. while the couple's two children were in the room. Id. at 37. As the two tussled, Jones threw R.O. down to the floor and her knee "busted a little bit to where [her] skin had broke." Id. at 40. At one point Jones also bit R.O. on the side of her face. Id. at 47. R.O. estimated that the entire episode lasted "between four and like eight o'clock," id. at 83, after which Jones took R.O.'s cell phone and went outside to his vehicle. R.O. looked for the two cordless phones that were usually in the house, but could not find either of them. Id. 43-44. That night, Jones slept in the living room, and R.O. slept in the bedroom with the two children.
When Jones left the house around 8:30 the next morning, R.O. called a family member and later called the police. The State arrested Jones and charged him with domestic battery as a Class D felony; strangulation, a Class D felony; criminal confinement as a Class D felony; domestic battery as a Class A misdemeanor; battery as a Class A misdemeanor; and interference
Jones was tried to a jury in the courtroom of the Honorable Barbara A. Collins. On November 14, 2011, Commissioner John J. Boyce was appointed judge pro tempore and presided over Jones's trial. Appellant's App. at 134. During closing argument, the deputy prosecutor asserted that R.O. had no reason to falsify her testimony and stated, "[S]he's still here because it's the right thing and she was telling you the truth." Tr. at 159. Jones was convicted on all six counts. On November 28, 2011, Commissioner Boyce sentenced Jones to two years on each felony count and one year on each misdemeanor count with all sentences to be served concurrently. Jones's two-year sentence was ordered to be served as follows: twelve months at the Department of Correction ("DOC"), six months on Community Corrections, and six months to be suspended and served on probation. Tr. 314-16.
Jones's sentencing was complicated by the trial court's need to address a probation violation from a previous conviction. During a December 12, 2011 hearing, the trial court noted, "[t]here are some things that happened in the sentencing which couldn't happen, okay, without at least some more evaluations and that's what's going to happen today, it's going to be a Community Corrections evaluation and then the sentencing is going to [be] redone."
On January 24, 2012, Judge Collins conducted a second sentencing hearing, which resulted in what is referred to in the CCS as "amended sentencing." Appellant's App. at 16. Jones was sentenced to 730 days at the DOC on each felony count and 365 days at the DOC on each misdemeanor count with all sentences to run concurrently. Id. at 16-17, 19-20. Jones now appeals.
As a preliminary matter, we address the State's contention that Jones's appeal was not timely filed. Commissioner Boyce presided over Jones's jury trial, held on November 14, 2011, and his sentencing hearing, held on November 28, 2011. The State contends that because Commissioner Boyce served as a judge pro tempore for the trial and the sentencing hearing, the sentence imposed on November 28, 2011 constituted a final appealable order. Appellee's Br. at 7.
"A party initiates an appeal by filing a Notice of Appeal with the Clerk ... within thirty (30) days after the entry of a Final Judgment is noted in the Chronological Case Summary...." Ind. Appellate Rule 9(A)(1). The State contends that the thirty days ran from November 28, 2011 and expired in December 2011. As such, the State argues that Jones's notice of appeal,
A notice of appeal must be filed "with the Clerk ... within thirty (30) days after the entry of a Final Judgment is noted in the [CCS]." App. R. 9(A)(1) (emphasis added). Here, the trial court did not issue an "Order of Judgment of Conviction" until January 24, 2012. Appellant's App. at 21-24. While the CCS reflects that a hearing occurred on November 28, 2011 for sentencing, on December 5, 2011 for a bond review, and on January 24, 2012 for sentencing, the CCS reflects that the "Order of Judgment of Conviction" was entered only on January 24, 2012. Appellant's App. at 14-15, 21. Jones's notice of appeal, which was filed less than thirty days after the entry of final judgment was noted in the CCS, was timely filed. Id. at 21-24.
Jones contends that his multiple convictions for battery violate Indiana's constitutional prohibition against double jeopardy. Specifically, he contends that he cannot be convicted for domestic battery as a Class D felony (Count I), domestic battery as a Class A misdemeanor (Count IV), and battery as a Class A misdemeanor (Count V) because "the evidence presented supports but a single offense of domestic battery." Appellant's Br. at 7. Jones bases his claim on the "actual evidence test" enunciated by the Indiana Supreme Court in Richardson v. State, 717 N.E.2d 32 (Ind.1999) and on the fact that Counts IV and V are each a lesser-included offense of Count I. Appellant's Br. at 5-8. Davenport v. State, 734 N.E.2d 622, 624 (Ind.Ct.App.2000) (greater offense is the "same" for purposes of double jeopardy as any lesser offense included in it) (citing Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)), trans. denied (2001). We review whether multiple convictions violate the prohibition against double jeopardy de novo. Goldsberry v. State, 821 N.E.2d 447, 458 (Ind.Ct. App.2005).
The State fails to address this issue. Relying on its argument that Jones's appeal was untimely filed, the State offers just one sentence: "Defendant's double jeopardy claim, even if correct, would only require this Court to vacate the misdemeanor battery convictions, ... but as all counts were ordered to be served concurrently, such would have no effect on Defendant's actual sentence." Appellee's Br. at 8. This court will not undertake the burden of developing an argument on behalf of a party on appeal. Hall v. State, 837 N.E.2d 159, 160 (Ind.Ct.App.2005), trans. denied (2006). Nonetheless, it is our duty to decide cases correctly. Because this issue was raised by Jones and is properly before us and because our standard of review is de novo, we address the merits of Jones's double jeopardy claim.
The Indiana Constitution's Double Jeopardy Clause ("the Double Jeopardy Clause"), found in Article 1, Section 14 of the Indiana Constitution, "was intended to prevent the State from being able to proceed against a person twice for the same criminal transgression." Richardson, 717 N.E.2d at 49. Two or more offenses are the "same offense" in violation of the Double Jeopardy Clause, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense. Id.
Under the "actual evidence" test, the evidence presented at trial is examined to determine whether each challenged offense was established by separate and distinct facts. Id. at 53. To show that two challenged offenses constitute the "same offense" in a claim of double jeopardy, a defendant must demonstrate a reasonable
The pertinent portions of each charging information and each final instruction to the jury relating to the battery counts were as follows. As to Count I, domestic battery as a Class D felony, the State alleged that Jones:
Appellant's App. at 28, 108 (emphasis added). As to Count IV, domestic battery as a Class A misdemeanor, the State alleged that Jones:
Id. at 31, 111 (emphasis added). Finally, as to Count V, battery as a Class A misdemeanor, the State alleged that Jones:
Id. at 32, 112 (emphasis added). As the emphasized language reveals, the State provided no details regarding the three batteries, but instead, alleged in general terms that Jones "did knowingly in a rude, insolent or angry manner touch" R.O., and that "said touching resulted in bodily injury to the other person, specifically: red marks and/or scratches and/or pain." Id. at 28, 31, 32. Here, there is a reasonable possibility that each challenged battery offense was not established by separate and distinct facts.
In closing argument, the State revealed its understanding of how these three counts were different. The attorney for the State noted:
Tr. at 159. The State claimed that the difference in proof between these three batteries was whether the battery occurred in front of the children in the bedroom or outside the presence of the children in the living room. The State,
True v. State, 954 N.E.2d 1105, 1110-11 (Ind.Ct.App.2011). Based on the above reasoning, we find a violation of the prohibition against double jeopardy because Counts IV and V are lesser included offenses of Count I and because the State relied on the same evidence to convict Jones of all three offenses.
When two convictions are found to contravene double jeopardy principles, a reviewing court may remedy the violation by reducing either conviction to a less serious form of the same offense if doing so will eliminate the violation. Moala v. State, 969 N.E.2d 1061, 1065 (Ind.Ct.App. 2012). If it will not, one of the convictions must be vacated. Id. "In the interest of efficient judicial administration, the trial court need not undertake a full sentencing reevaluation, but rather the reviewing court will make this determination itself, being mindful of the penal consequences that the trial court found appropriate." Id. (citing Richardson, 717 N.E.2d at 54). In Richardson, the defendant was convicted of robbery as a Class C felony and battery as a Class A misdemeanor, which our Supreme Court found to be a violation of the Indiana Double Jeopardy Clause under the actual evidence test. Richardson, 717 N.E.2d at 54. Because both convictions could not stand, the court in Richardson vacated the conviction with the less-severe penal consequence and left the robbery conviction standing. Id. at 55.
Jones was convicted in violation of Article 1, section 14, of Class D felony domestic battery, Class A misdemeanor domestic battery, and Class A misdemeanor battery. The two Class A misdemeanor battery convictions have the less-severe penal consequences. Accordingly, we vacate both the convictions and sentence for the Class A misdemeanor domestic battery (Count IV) and for the Class A misdemeanor battery (Count V), and leave standing the conviction and sentence for Class D felony domestic battery (Count I).
Jones next contends that his conviction for criminal confinement violates the prohibition against double jeopardy set forth in Indiana Constitution, Article 1, Section 14. Jones again bases his claim on the "actual evidence test" enunciated by the Indiana Supreme Court in Richardson, and the State again fails to make an argument as to why Jones's conviction for criminal confinement does not constitute double jeopardy.
The conflict between Jones and R.O. began with a verbal altercation on the afternoon of April 13, 2011. The exchange escalated and became violent. The entire episode lasted four hours and occurred in the presence of the couple's children, who were under the age of sixteen. R.O. testified that Jones poured formula on her face, slapped her face, and bit her on the side of her face. Id. at 34-35, 47. This evidence supported Jones's conviction for Class D felony domestic battery. See Ind.Code § 35-42-2-1.3. R.O. also testified that Jones choked her; "I couldn't breathe I was gaspin' for air and I kept askin' him to stop." Tr. at 34. This evidence supported Jones's conviction for Class D felony strangulation. Ind.Code § 35-42-2-9.
The State charged that Jones "did knowingly confine R.O., another person, without said person's consent." Appellant's App. at 30. In addition to Jones choking, slapping, and biting R.O., there was also evidence that Jones criminally confined R.O. R.O. testified that Jones pushed her onto the couch, sat on top of her, and told her that she "couldn't get up," and "couldn't leave." Tr. at 34. Additionally, through his actions, Jones kept R.O. in the home until he left the next morning, at which time R.O. called her family and then the police.
The actual evidence to convict Jones of criminal confinement was different from the evidence required to convict him of domestic battery and strangulation. Jones's conviction for criminal confinement did not violate the prohibition against double jeopardy
Jones contends that Judge Collins did not have the authority to vacate the sentence previously imposed by Commissioner Boyce. Commissioner Boyce, acting as judge pro tempore, sentenced Jones on November 28, 2011, to two years on each felony count and one year on each misdemeanor count with all sentences to be served concurrently. Tr. at 314-16. Of that time, the trial court ordered Jones to serve 365 days in the DOC, 180 days in Community Correction, and 180 days on probation. Id. Both parties agree that Commissioner Boyce, by acting as judge pro tempore at the criminal trial, had the authority to conduct the sentencing hearing and impose a sentence. Appellant's Br. at 12-14; Appellee's Br. at 9. See Long v. State, 962 N.E.2d 671, 673 (Ind.Ct.App. 2012) (citing Ind.Code § 33-23-5-9(b)) (magistrate presiding at criminal trial may enter final order, conduct sentencing hearing, and impose sentence), trans. denied.
During a hearing held on December 12, 2011, the trial court noted:
Tr. at 370-71. Thereafter, the trial judge asked Jones questions about his mental health and the treatment he received for his mental health. Id. at 371-75.
During a sentencing hearing held on January 24, 2012, Judge Collins heard testimony from R.O., Jones, and Jones's sister on topics covering Jones's mental health and corresponding treatment, his involvement in the life of his fourteen-year-old daughter, his job prospects, and the possibility of living with his sister in the event the trial court allowed him to serve time in Community Corrections. Id. at 185-202. The trial court also explored information from Marion County Community Corrections, which was provided in the form of a memorandum dated January 20, 2012. Id. at 198.
At the conclusion of the hearing, Judge Collins stated:
Id. at 208-09. Noting the problematic situation of having to consider Jones's sentence under this cause number as well as his sentence for a probation violation on a previous conviction, the trial court stated:
Id. at 209. For time served plus credit time, Jones received 572 days of credit, which was credited against his most restrictive placement, i.e., the executed time in DOC. Id. The remainder of the sentencing hearing addressed the sentence imposed for Jones having violated his probation.
While Judge Collins had to resentence Jones because necessary evaluations had not been completed prior to Commissioner Boyce's November 28, 2011 hearing, the amended sentence did not increase Jones's original sentence of 730 days. The one change was that Jones would have to serve his entire sentence executed at the DOC, instead of having some of his sentence on Community Corrections and some on probation. This change, however, does not constitute fundamental error. The grant of probation is a favor and not a right. Beeler v. State, 959 N.E.2d 828, 829 (Ind.Ct.App.2011), trans. denied. As with probation, placement in a community corrections program "is a `matter of grace' and a `conditional liberty that is a favor, not a right.'" Brown v. State, 947 N.E.2d 486, 489 (Ind.Ct.App.2011) (quoting Million v. State, 646 N.E.2d 998, 1001-02 (Ind.Ct.App.1995)), trans. denied. Therefore, Judge Collins's amended sentencing, which changed only placement in Community Corrections and probation, did not affect Jones's substantial rights or in any manner deprive Jones of due process. We find that the amended sentence imposed by Judge Collins did not constitute fundamental error.
Finally, Jones contends that the deputy prosecutor engaged in prosecutorial misconduct during closing argument of the guilt phase of the jury trial by impermissibly vouching for R.O.'s credibility. Jones concedes that he did not object to the prosecutor's remarks but contends that the prosecutor's comments constituted fundamental error, which justifies a new trial. Appellant's Br. at 16-20. The State fails to address Jones's fundamental error argument, but instead argues that Jones's "prosecutorial misconduct claim is unavailable for appellate review because [he] failed to properly preserve the issue by objecting, requesting an admonishment, and moving for a mistrial." Appellee's Br. at 7 (citing Delarosa v. State, 938 N.E.2d 690, 696 (Ind.2010); Cooper v. State, 854 N.E.2d 831, 835 (Ind.2006)).
During closing argument, the deputy prosecutor made the following statement:
Tr. at 158-59. In Cain v. State, 955 N.E.2d 714, 721 (Ind.2011), our Supreme Court noted:
Because Jones did not object, request an admonishment, or move for a mistrial, he seeks relief on the basis that the prosecutor's comments constituted fundamental error.
In some instances, prosecutorial misconduct may amount to fundamental error. Cowan v. State, 783 N.E.2d 1270, 1277 (Ind.Ct.App.2003), trans. denied. For such misconduct to rise to the level of fundamental error, however, it must be so prejudicial to the rights of the defendant as to have made a fair trial impossible. Id. In determining whether an alleged error rendered a judicial proceeding unfair, this court must consider whether the resulting harm or potential for harm is substantial. Id. A review of the totality of the circumstances and a determination whether the error had a substantial influence upon the outcome are required. Id.
Assuming without deciding that it was error for the prosecutor to make statements about R.O.'s credibility, we address whether Jones was denied fundamental due process. Identity was not the issue at trial; instead, the issue before the jury was whether Jones had committed the charged offenses. The main witness for the State was the victim, R.O. The jury heard her testimony regarding the events that happened on the day in question. They also heard from two police officers who investigated the crimes and took photographs of R.O. to reflect her injuries.
The defense offered no witnesses but, instead, questioned R.O.'s credibility. Defense counsel asked R.O., "[Y]ou understood that you were to tell everyone, that you were to speak the truth and the whole truth?" Appellant's App. at 76. Additionally, defense counsel highlighted the inconsistencies in R.O.'s version of the events on the day in question. Tr. at 76-81.
During closing argument, the State maintained that R.O. was telling the truth. In rebuttal, the defense counsel during closing argument again raised the issue of R.O.'s credibility.
Tr. at 164-65. Defense counsel went on to explain the various inconsistencies in R.O.'s testimony — how she changed her story over time, adding injuries not previously mentioned. Id. at 165-68. Defense counsel also suggested that the photograph exhibits did not reveal the injuries that R.O. claimed she had sustained.
Id. at 168-69.
Jones's theory at trial was that R.O.'s story was inconsistent and could not be believed. During closing argument, the State asserted that R.O. was telling the truth. In rebuttal, defense counsel again asserted that R.O.'s story was inconsistent. Here, where R.O.'s credibility was at issue and both sides had their say on the matter, we cannot say that the statements made by the State placed Jones in a position of grave peril to which he should not have been subjected. Furthermore, because the statements did not deny Jones a fair trial, we find no fundamental error.
On the basis of double jeopardy, we reverse Jones's convictions for Count IV, Class A misdemeanor domestic battery, and Count V, Class A misdemeanor battery, and we affirm Jones's conviction and sentence for Count I, Class D felony domestic battery. In all other respects, we affirm the trial court's decision. Therefore, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
NAJAM, J., and MAY, J., concur.
