Demario M. Loston v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Dec 10 2015, 9:17 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel J. Vanderpool Gregory F. Zoeller
Vanderpool Law Firm, PC Attorney General of Indiana
Warsaw, Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Demario M. Loston, December 10, 2015
Appellant-Defendant, Court of Appeals Case No.
85A04-1504-CR-153
v.
Appeal from the Wabash Circuit
Court
State of Indiana,
The Honorable Robert R.
Appellee-Plaintiff. McCallen, III, Judge
Trial Court Cause No.
85C01-1407-F5-641
Kirsch, Judge.
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[1] Demario M. Loston was convicted after a jury trial of battery1 as a Class A
misdemeanor and criminal trespass2 as a Class A misdemeanor. He was given
a one-year sentence for each offense with the sentences ordered to run
consecutively for an aggregate sentence of two years executed. Loston appeals
and raises the following restated issues for our review:
I. Whether the continuous crime doctrine applies to Loston’s
convictions for Class A misdemeanor battery and Class A
misdemeanor criminal trespass; and
II. Whether Loston’s consecutive sentences are inappropriate in
light of the nature of the offense and the character of the
offender.
[2] We affirm.
Facts and Procedural History
[3] On July 19, 2014, Leah Neupert was spending time with friends at her
residence in the Treeway Inn located in Manchester, Indiana and spoke with
Loston, who was an acquaintance of hers, on the phone. Neupert and Loston
made plans for Neupert to pick Loston up from a friend’s home in Warsaw.
Loston, believing that Neupert wanted to have sex with him, gave her
1
See Ind. Code § 35-42-2-1.
2
See Ind. Code § 35-43-2-2.
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directions to the house where he was staying. Neupert and her friend,
Savannah Baermann, later drove Baermann’s vehicle to pick up Loston.
[4] When Loston entered the vehicle, he brought a bottle of vodka, juice, and his
cell phone with him. Loston’s cell phone battery was dead, so he plugged the
phone into Baermann’s car charger and placed it on the floorboard between the
driver’s seat and the passenger seat. Baermann drove to three different hotels in
Warsaw to check room prices because Loston wanted to have sex with
Neupert. Loston did not have enough money for a hotel room and became
angry when the plan to get a hotel room was not successful. The three then
decided to go to the Aloha Bar in Warsaw.
[5] After sitting and drinking in the bar’s parking lot, Loston met up with some
friends and went inside, leaving his cell phone and vodka in Baermann’s
vehicle. Neupert and Baermann went inside the bar also, but did not hang out
with Loston. Neupert and Baermann were at the bar, drinking and having a
good time, from 9:00 p.m. until approximately 2:30 a.m. Prior to leaving,
Baermann went up to Loston and told him they were leaving and asked for gas
money. Loston shoved Baermann into the women’s restroom, tried to undress
her, and told her, “just let me see your boobs.” Tr. at 285. Because Loston had
her cornered in a stall, and she wanted him to leave her alone, Baermann
showed him her breasts, and Loston threw ten dollars at her.
[6] Neupert and Baermann left the bar and went back to the Treeway Inn in
Manchester. They went to the room of Stephen Keirn, who was also living at
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the hotel. When Neupert and Baermann reached Manchester, they realized
that Loston had left his cell phone in the vehicle. They discussed whether to
return to the bar, but were not able to because they did not have enough gas
money to drive there. Neupert planned to return the cell phone to Loston the
next time she saw him and took it and the vodka with her into Keirn’s room.
Once inside, she placed the cell phone on a coffee table near the door.
[7] About ten minutes after Neupert and Baermann arrived, Loston, barged into
Keirn’s room. The door to the room had been closed, but Loston opened it and
entered without knocking, announcing himself, waiting for permission to enter,
or having someone open the door for him. Loston was visibly angry and
headed straight to where Neupert was sitting. He grabbed her and said, “Bitch,
you want to play games?” Id. at 115, 135, 137, 141. Loston did not given
Neupert a chance to respond before he pulled her off the bed and began
punching her in the face with his fist. Loston looked at Keirn, and when Keirn
did not do anything to stop him, Loston again punched Neupert in the face.
She fell to the floor, and Loston looked at Keirn again before stomping on
Neupert’s face and knocking her unconscious.
[8] Baermann attempted to stop Loston by grabbing his arm, and he punched her
in the jaw. Loston then retrieved his cell phone from the table and ran from the
room. Keirn and Baermann followed Loston outside. Baermann was worried
that Loston might vandalize her vehicle. Loston lunged at Keirn, asking him
“if [he] wanted some,” and Keirn told Loston that he “was not in it” and
stepped to the side. Id. at 166. Loston then hit Keirn, and Keirn responded by
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punching Loston. Loston began to lift a cement block off the ground and
threatened to smash Baermann’s vehicle with it. Loston’s friends told him to
stop because the police were coming. Loston jumped into his friends’ vehicle,
and they quickly drove away.
[9] Baermann went back to Keirn’s room and called police. Neupert regained
consciousness about three minutes after being stomped in the face. Neupert
bled heavily from her face and nose, and as a result of the battery, her eyes
remained black and blue for almost a month and a half afterwards.
[10] The State charged Loston with Level 5 felony battery, two counts of Class A
misdemeanor battery, one count of Class B misdemeanor battery, and Class A
misdemeanor criminal trespass. Loston was also alleged to be a habitual
offender. Prior to trial, the Class B misdemeanor battery was dismissed. After
a three-day jury trial, Loston was found guilty of one count of Class A
misdemeanor battery and Class A misdemeanor criminal trespass and was
acquitted of the other charges. The habitual offender allegation was also
subsequently dismissed. Loston was sentenced to one year for each of his
convictions and ordered to serve the sentences consecutively, for a total
sentence of two years executed. Loston now appeals.
Discussion and Decision
I. Continuous Crime Doctrine
[11] Loston argues that his convictions for battery and criminal trespass cannot both
stand because the continuous crime doctrine applies. The continuous crime
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doctrine is a category of Indiana’s prohibition against double jeopardy. Walker
v. State, 932 N.E.2d 733, 736 (Ind. Ct. App. 2010). He contends that the
continuous crime doctrine applies when “actions which are sufficient in
themselves to constitute separate criminal offenses may be so compressed in
terms of time, place, singleness of purpose, and continuity of action as to
constitute a single transaction.” Seal v. State, 38 N.E.3d 717, 724 (Ind. Ct.
App.), trans. denied. Loston asserts that, because he was involved in “one
purposeful criminal act . . . the physical retrieval of his cell phone from another
individual,” his actions mirror the above elements to establish “one ‘continuous
crime.’” Appellant’s Br. at 10.
[12] Our Supreme Court recently held that the continuous crime doctrine “applies
only where a defendant has been charged multiple times with the same
‘continuous’ offense.” Hines v. State, 30 N.E.3d 1216, 1220 (Ind. 2015). The
Hines Court specified that,
The continuous crime doctrine is a rule of statutory construction
and common law limited to situations where a defendant has
been charged multiple times with the same offense. The
continuous crime doctrine does not seek to reconcile the double
jeopardy implications of two distinct chargeable crimes; rather, it
defines those instances where a defendant’s conduct amounts
only to a single chargeable crime. The Legislature, not this Court,
defines when a criminal offense is “continuous,” e.g. not
terminated by a single act or fact but subsisting for a definite
period and covering successive, similar occurrences.
Id. 1219 (citations and quotations omitted).
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[13] Here, the continuous crime doctrine does not apply to Loston’s convictions
because his convictions are for two distinct chargeable crimes. He was
convicted of one count of Class A misdemeanor battery and one count of Class
A misdemeanor criminal trespass. Loston was not convicted of multiple
charges of the battery, nor multiple charges of criminal trespass.
[14] Additionally, battery is not a crime for which all of the elements necessary to
impose criminal liability are also elements found in criminal trespass, or vice
versa. As charged, the elements of Loston’s conviction for Class A
misdemeanor battery were that he knowingly or intentionally touched Neupert
in a rude, insolent, or angry manner that resulted in bodily injury to Neupert.
Ind. Code § 35-42-2-1(b)(1), (c); Appellant’s App. at 16. As charged, the elements
of Loston’s conviction for Class A misdemeanor criminal trespass were that he
(1) not having a contractual interest in the property, knowingly or intentionally
entered the real property of Keirn after having been denied entry by Keirn or
Keirn’s agent, or (2) knowingly or intentionally interfered with the possession
or use of the property of Keirn without Keirn’s consent. Ind. Code § 35-42-2-
2(b)(1), (4); Appellant’s App. at 17. Loston completed his criminal trespass when
he angrily entered Keirn’s room without knocking on the closed door, waiting
for permission to enter, or having anyone open the door for him. He completed
his battery when he punched Neupert in the face multiple times and stomped
her face. We, therefore, conclude that the continuous crime doctrine does not
apply in the present case.
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II. Inappropriate Sentence
[15] Under Indiana Appellate Rule 7(B), “we may revise any sentence authorized by
statute if we deem it to be inappropriate in light of the nature of the offense and
the character of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct.
App. 2014). The question under Appellate Rule 7(B) is not whether another
sentence is more appropriate; rather, the question is whether the sentence
imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.
2008). It is the defendant’s burden on appeal to persuade the reviewing court
that the sentence imposed by the trial court is inappropriate. Chappell v. State,
966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.
[16] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the
end of the day turns on “our sense of the culpability of the defendant, the
severity of the crime, the damage done to others, and myriad other facts that
come to light in a given case.” Id. at 1224.
[17] Loston contends that his sentence is inappropriate in light of the nature of the
offense and the character of the offender. Specifically, he asserts that his
sentence is inappropriate because his sentences were ordered to be served
consecutively. He argues that, as to the nature of the offense, because he was
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only convicted of misdemeanor battery, and not the Level 5 felony with which
he was charged, the “charges for which he was convicted were not, by their nature,
extremely serious.” Appellant’s Br. at 11. As to his character, Loston claims
that, although he has a criminal history, it is not significant because many of the
offenses were dismissed, and the convictions are not recent in time. He further
contends that he has a child for whom he provides care, and he has
employment available.
[18] Loston was convicted of one count of Class A misdemeanor battery and one
count of Class A misdemeanor criminal trespass. “A person who commits a
Class A misdemeanor shall be imprisoned for a fixed term of not more than one
(1) year.” Ind. Code § 35-50-3-2. The trial court sentenced Loston to one year
for each of his convictions and ordered the sentences to be served consecutively,
for an aggregate sentence of two years executed.
[19] As to the nature of the offense, after Loston was unable to secure a room to
have sex with Neupert, he spent the night drinking with Neupert and Baermann
and, later, other friends at a bar. When Baermann told Loston that she and
Neupert were leaving the bar and asked for gas money, Loston forced
Baermann into a restroom stall and attempted to undress her. Later, after
Neupert and Baermann had left and went to Keirn’s hotel room, Loston
showed up and barged into the room without announcing himself, knocking,
waiting for permission to enter, or having someone open the door for him. He
angrily entered a stranger’s residence and headed straight for Neupert, grabbed
her, and began punching her in the face until she fell to the floor. Loston then
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stomped on Neupert’s face, causing her to lose consciousness for several
minutes and to have black and blue eyes for several weeks thereafter. When
Baermann attempted to intervene, Loston punched her in the face. He then ran
out of the room, and Baermann and Keirn followed him. After lunging at
Keirn, Loston punched him in the face. We do not find Loston’s sentence
inappropriate in light of the nature of the offense.
[20] As to his character, Loston has a significant criminal history. As a juvenile,
Loston was adjudicated delinquent at least ten times for illegal consumption,
criminal confinement, sexual battery, battery, theft, and carrying a handgun
without a license. As an adult, has been arrested and charged with crimes
approximately eighteen times. He has approximately six misdemeanor
convictions and five felony convictions for offenses that include armed robbery,
domestic battery, battery resulting in bodily injury, criminal recklessness,
invasion of privacy, residential entry, and resisting law enforcement. Loston
also has numerous probation violations. We conclude that Loston’s
consecutive sentences are not inappropriate in light of his character.
[21] Affirmed.
Najam, J., and Barnes, J., concur.
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