Ivan Gooden, Jr. v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 21 2017, 10:20 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Attorney General of Indiana
Magrath, LLP
Lyubov Gore
Madison, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ivan Gooden, Jr., February 21, 2017
Appellant-Defendant, Court of Appeals Case No.
15A01-1603-CR-593
v. Appeal from the Dearborn Circuit
Court
State of Indiana, The Honorable James D.
Appellee-Plaintiff Humphrey, Judge
Trial Court Cause No.
15C01-1501-F1-1
Baker, Judge.
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[1] Ivan Gooden, Jr., appeals his convictions for Criminal Confinement,1 a Level 3
felony, and Aggravated Battery,2 a Level 3 felony. He argues that his
convictions violate the prohibition against double jeopardy and that his
sentences should not be run consecutively. Finding no violation of the
prohibition against double jeopardy or any other error, we affirm.
Facts
[2] Gooden and Nicholl Lunsford were coworkers who became romantically
involved in December 2014. The couple and Lunsford’s teenage son moved
into an apartment together. One week after moving in together, Gooden
choked Lunsford until she lost consciousness. A week after that, Gooden again
choked Lunsford unconscious; this time, she fell on her face and suffered two
black eyes. After another attack, Lunsford’s son called the police, but Gooden
threatened to “burn [her] daughter’s house down with [her] grandbabies”
inside, tr. p. 126; when the police arrived, Lunsford recanted her story.
[3] On January 22, 2015, Lunsford was looking for a pen. She asked Gooden
whether he had moved it. They began arguing over the pen, and when
Lunsford yelled back, Gooden angrily accused her of “trying to get the white
people . . . that live next door” to get him in trouble. Tr. p. 93, 141. He
grabbed her and choked her unconscious, allowing her to fall onto the floor,
1
Ind. Code § 35-42-3-3.
2
I.C. § 35-42-2-1.5.
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which resulted in Lunsford chipping her teeth. Gooden then dragged her by her
ankles to the bedroom. Lunsford regained consciousness, but Gooden placed
her on the bed, got on top of her, and began choking her again. He placed a
pillow over her face and told her that she was going to die. Over the course of
an hour, Lunsford lost consciousness at least two more times as Gooden
attacked her. In addition to the broken teeth and loss of consciousness,
Lunsford suffered a bruise on her hip, bruises on her elbow, a concussion,
marks around her neck, and swelling above her eyebrow.
[4] Lunsford’s friend came by the apartment shortly thereafter and was eventually
able to call the police. Gooden was arrested and on January 26, 2015, was
charged with attempted murder, criminal confinement, and was alleged to be a
habitual offender. The State later amended the charging information to include
a count of aggravated battery.
[5] After a December 14-18, 2015, bifurcated jury trial, the jury found Gooden
guilty of criminal confinement and aggravated battery, but not guilty of
attempted murder. Gooden admitted to being an habitual offender. The trial
court held a sentencing hearing on January 28, 2016, and February 12, 2016,
and sentenced Gooden to sixteen years for the criminal confinement conviction
and fourteen years for the aggravated battery conviction, with those sentences
to run consecutively, plus an additional twenty years for being an habitual
offender. Gooden now appeals.
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Discussion and Decision
[6] Gooden argues that his convictions violate the prohibition against double
jeopardy. Article 1, Section 14 of the Indiana Constitution provides, “No
person shall be put in jeopardy twice for the same offense.” Our Supreme
Court has explained that two or more offenses are the “same offense” 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. Richardson v.
State, 717 N.E.2d 32, 49 (Ind. 1999). As long as “each conviction require[s]
proof of at least one unique evidentiary fact,” no violation of the actual
evidence test occurs. Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002).
[7] A person commits Level 3 felony aggravated battery by knowingly or
intentionally inflicting injury on a person that causes protracted loss or
impairment of the function of a bodily member or organ. I.C. § 35-42-2-1.5(2).
A person commits Level 3 felony criminal confinement by knowingly or
intentionally confining another person, without that person’s consent, and
causing a serious bodily injury. I.C. § 35-42-3-3(b)(2)(B). Here, the State
presented evidence that Gooden choked Lunsford unconscious and then
allowed her unconscious body to fall to the ground, where she chipped her
teeth. Having completed that act, Gooden then dragged Lunsford by her ankles
to the bedroom, where he immobilized her by sitting on top of her and choked
her until she again lost consciousness at least two more times. Gooden
committed two separate crimes, distinct in time, location, and evidence offered
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as proof. Accordingly, his convictions do not violate the “same offense” test,
nor do they violate the prohibition against double jeopardy.
[8] Gooden also argues that “it was improper to give him consecutive sentences for
the two offenses that were based upon the same factual storyline.” Appellant’s
Br. p. 12. It is well settled that the trial court may consider whether terms of
imprisonment shall be served concurrently or consecutively. Ind. Code § 35-50-
1-2. “[W]ith a few exceptions, it is within the trial court’s discretion whether to
order sentences to be served concurrently or consecutively.” Myers v. State, 27
N.E.3d 1069, 1082 (Ind. 2015).
[9] Gooden perpetrated a brutal assault on his girlfriend, which resulted in broken
teeth, bruises, and multiple losses of consciousness. The trial court also noted
that Gooden has a significant prior criminal history. We cannot say that the
trial court erred by ordering Gooden’s sentences to run consecutively.
[10] The judgment of the trial court is affirmed.
Mathias, J., and Pyle, J., concur.
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