Jonathan J. Tipton v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), May 25 2016, 7:43 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
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
Jeremy K. Nix Gregory F. Zoeller
Matheny, Hahn, Denman & Nix, L.L.P. Attorney General of Indiana
Huntington, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jonathan J. Tipton, May 25, 2016
Appellant-Defendant, Court of Appeals Case No.
35A05-1511-CR-1986
v. Appeal from the Huntington
Circuit Court
State of Indiana, The Honorable Thomas M. Hakes,
Appellee-Plaintiff Judge
Trial Court Cause No.
35C01-1412-F4-277
Crone, Judge.
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Case Summary
[1] Jonathan J. Tipton and his cousin broke into Colton Miller’s apartment and
beat him with a tire iron. A jury convicted Tipton of level 1 felony burglary
resulting in serious bodily injury and level 5 felony battery with a deadly
weapon. The trial court sentenced him to consecutive terms of forty years for
burglary and five years for battery, with twenty-five years executed and twenty
years suspended to probation. On appeal, Tipton claims that his convictions
violate Indiana double jeopardy principles and that the burglary and battery
were a single continuous crime. He also claims that his sentence is
inappropriate in light of the nature of the offenses and his character. We
conclude that Tipton’s convictions violate Indiana double jeopardy principles,
and therefore we remand with instructions to reduce the battery conviction to a
class B misdemeanor and resentence him accordingly. We further conclude
that the continuous crime doctrine is inapplicable. Finally, we conclude that
Tipton has failed to establish that his burglary sentence is inappropriate, and
therefore we affirm it.
Facts and Procedural History
[2] The facts most favorable to the verdicts are that Tipton worked with Miller at a
factory in Huntington. On October 2, 2014, Miller invited Tipton to his
apartment to drink beer with him and Cody Smith. Tipton arrived around
midnight and drank beer until he and Miller started fighting. Miller and Smith
pushed Tipton downstairs and out of the apartment and locked the door.
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[3] Tipton drove to the apartment that he shared with his cousin Andrew Barrus
and Barrus’s girlfriend Andrea Reynolds. According to Reynolds, Tipton was
“loud” and “drunk” and “cursing out” Miller. Tr. at 373. Tipton and Miller
exchanged text messages and threatened to beat each other up. Tipton texted
that “he would be outside,” and Miller responded that if Tipton came over
Miller “was calling the cops.” Id. at 169. Tipton told Barrus and Reynolds that
he “wanted to go back over and kick [Miller’s] ass.” Id. at 377. Barrus and
Reynolds calmed Tipton down, but when Miller stopped responding to Tipton’s
texts, Tipton “was like on a whole new warpath.” Id. Eventually, Barrus
agreed to go to Miller’s apartment with Tipton. Tipton “was too drunk to drive
and [Barrus] never drove,” so Reynolds agreed to drive them in Tipton’s black
Dodge Charger, which was “fast” and “silent.” Id. at 379, 381. Before they left
their apartment, Reynolds paused their surveillance camera system so that it
would not record them leaving the premises. Tipton directed Reynolds to
Miller’s apartment, and she was told to park down the street with the lights off
and the engine running.
[4] Inside the apartment, Miller and Smith heard someone pounding on the
downstairs door. Smith, who had an outstanding warrant, opened Miller’s
bedroom window and crawled out onto “a little slanted roof.” Id. at 104. He
closed the window, jumped off the roof, and ran down the street. A few
minutes later, Miller heard window blinds rustling in his bedroom and saw
Tipton “coming out of the hallway into the living room.” Id. at 174. Miller hit
Tipton, and the two started “wrestling around.” Id. Miller then saw Barrus,
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who hit him on top of the head with a tire iron. Miller fell onto a couch and
tried to protect his head and face with his arms. Tipton and Barrus repeatedly
punched and kicked Miller and struck him on the head with the tire iron.
Miller experienced “an intense pain” that he had never felt before and “thought
[he] was gonna die.” Id. at 178. Barrus “said we have to go,” and Tipton
“kicked [Miller] a few more times” and landed a “really solid and blunt” blow
to his head that “wasn’t a normal hit” before leaving the apartment. Id. at 179.
[5] Miller’s wounds kept bleeding through t-shirts that he wrapped around his
head, so he had his sister take him to the hospital. Miller was treated and kept
overnight in the emergency room. He had lacerations to his scalp, face, and
mouth that required stitches, staples, and tissue adhesive. He also had
numerous abrasions and bruises on his face, arms, and torso, as well as swelling
under his scalp. Miller experienced “intense” pain in his head that “actually
got worse through the days.” Id. at 178. As a result of the attack, Miller “can’t
pay attention to anything anymore” and has “memory issues.” Id. at 189.
[6] Tipton, Barrus, and Reynolds returned to their apartment. Tipton and Barrus
changed their clothes, used the washing machine, and hid their shoes, which
they eventually burned. They talked about beating Miller’s head like a
punching bag and laughed about kicking him so hard “they thought they broke
his ribs.” Id. at 393. They also developed alibis and talked about deleting text
messages between Tipton and Miller.
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[7] The State charged Tipton with level 1 felony burglary resulting in serious bodily
injury and level 5 felony battery with a deadly weapon. A jury found him guilty
as charged. The trial court imposed consecutive sentences of forty years for
burglary and five years for battery, with twenty-five years executed and twenty
years suspended to probation. This appeal followed.
Discussion and Decision
Section 1 – Tipton’s convictions violate Indiana double
jeopardy principles.
[8] Tipton argues, and the State concedes, that his burglary and battery convictions
violate Indiana double jeopardy principles. 1 Article 1, Section 14 of the Indiana
Constitution states, “No person shall be put in jeopardy twice for the same
offense.” Indiana courts “have long adhered to a series of rules of statutory
construction and common law that are often described as double jeopardy, but
are not governed by the constitutional test set forth” in Richardson v. State, 717
N.E.2d 32 (Ind. 1999). Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002); see also
Richardson, 717 N.E.2d at 56 (recognizing that “to the extent that a defendant’s
conviction for one crime is enhanced for engaging in particular additional
behavior or causing particular additional harm, that behavior or harm cannot
also be used as an enhancement of a separate crime. See Campbell v. State, 622
N.E.2d 495, 500 (Ind. 1993) (reducing a Class C enhancement to a battery
1
Tipton’s double jeopardy argument misses the mark, but we agree with the State that remand is necessary
for the reasons given in its brief.
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conviction because the very same serious bodily injury that was the basis of the
Class C enhancement was also the basis of a Class A enhancement to a burglary
conviction).”) (Sullivan, J., concurring). In Campbell, the defendant was
charged with and convicted of class C felony battery based on his use of a
deadly weapon as well as class B felony burglary based on serious bodily injury
to the victim. Our supreme court agreed with this Court’s decision to remand
with instructions to reduce the class C felony battery conviction to a class B
misdemeanor based on state and federal double jeopardy violations: “Although
the battery information alleged use of a deadly weapon and the burglary
information alleged serious bodily injury, the basis for the elevation of both
crimes was the same slashing of [the victim’s] face.” Campbell, 622 N.E.2d at
500.
[9] Here, Tipton’s burglary conviction was enhanced from a level 5 felony to a
level 1 felony based on serious bodily injury to Miller, i.e., extreme pain. See
Ind. Code § 35-43-2-1(4) (burglary statute); Appellant’s App. at 50 (charging
information). And Tipton’s battery conviction was enhanced from a class B
misdemeanor to a level 5 felony based on Tipton’s use of a deadly weapon, i.e.,
a tire iron. See Ind. Code § § 35-42-2-1(f) (battery statute); Appellant’s App. at
51 (charging information). The basis for the elevation of both crimes was the
same striking of Miller with the tire iron, which is impermissible under
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Campbell. 2 Consequently, the proper remedy is to remand with instructions to
reduce the level 5 felony battery conviction to a class B misdemeanor and
resentence Tipton accordingly. See Sanders v. State, 734 N.E.2d 646, 652 (Ind.
Ct. App. 2000) (“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. In the alternative, a reviewing court may vacate one of
the convictions to eliminate a double jeopardy violation. In making that
determination, we must be mindful of the penal consequences that the trial
court found appropriate.”) (citations omitted), trans. denied. The trial court need
not hold a sentencing hearing on remand. Cf. Ind. Code § 35-38-1-3 (“Before
sentencing a person for a felony, the court must conduct a hearing to consider
the facts and circumstances relevant to sentencing.”) (emphasis added).
Section 2 – The continuous crime doctrine is inapplicable.
[10] Tipton also claims that he is entitled to relief pursuant to the continuous crime
doctrine, which is “a rule of statutory construction and common law limited to
situations where a defendant has been charged multiple times with the same
2
In Pierce, Justice Boehm noted,
Although Campbell was explicitly said to be superseded in the Court’s opinion in Richardson, 717
N.E.2d at 49 n.36, only Justice Dickson and [then-Chief Justice Shepard] appear to have taken
that view. Justice Sullivan concurred in Richardson, but authored a separate opinion that cited
Campbell, apparently with approval. 717 N.E.2d at 56. The other two Justices [Selby and
Boehm] did not comment on Campbell, but cited with approval other cases following the same
doctrine.
761 N.E.2d at 830 n.4.
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offense.” Hines v. State, 30 N.E.3d 1216, 1219 (Ind. 2015). “‘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.’” Id. (quoting
Boyd v. State, 766 N.E.2d 396, 400 (Ind. Ct. App. 2002)). Our legislature, not
the courts, “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. Whether two offenses are a continuous
crime is a question of law, which we review de novo. Id.
[11] Tipton cites no relevant authority for the proposition that a burglary and a
battery amount only to a single chargeable crime. In Hines, our supreme court
disagreed with the notion that “the continuous crime doctrine may be judicially
extended to two distinct criminal offenses[.]” Id. at 1220. Here, the burglary
was complete when Tipton broke into Miller’s apartment, and his battery of
Miller was a distinct offense. See Ind. Code §§ 35-43-2-1 (defining burglary as
the breaking and entering of another person’s building or structure with intent
to commit a felony in it), 35-42-2-1 (defining battery as the knowing or
intentional touching of another person in a rude, insolent, or angry manner); 3
see also Williams v. State, 771 N.E.2d 70, 75 (Ind. 2002) (holding that defendant’s
burglary and intimidation convictions did not violate double jeopardy
3
Tipton emphasizes that he was charged with burglary resulting in serious bodily injury and battery with a
deadly weapon that was used to inflict the injury, but the dispositive fact is that the burglary was complete
when he broke into Miller’s apartment.
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principles: “When Williams broke into the apartment, the burglary was
complete. Williams then put a gun to [the victim’s] head—an act separate and
distinct from the act that supported the burglary conviction.”). Consequently,
we conclude that the continuous crime doctrine is inapplicable.
Section 3 – Tipton has failed to establish that his burglary
sentence is inappropriate.
[12] Finally, Tipton asks us to reduce his sentence pursuant to Indiana Appellate
Rule 7(B), which provides that this Court “may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, the Court finds
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” “[S]entencing is principally a discretionary function
in which the trial court’s judgment should receive considerable deference.”
Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). “[W]hether we regard a
sentence as appropriate 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 factors that come to light in a given case.” Id. at 1224.
“[T]he 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).
“When reviewing the appropriateness of a sentence under Rule 7(B), we may
consider all aspects of the penal consequences imposed by the trial court in
sentencing the defendant, including whether a portion of the sentence is
suspended.” Vermillion v. State, 978 N.E.2d 459, 469 (Ind. Ct. App. 2012).
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Tipton bears the burden of persuading us that his sentence is inappropriate. Id.
at 468-69.
[13] “As to the nature of the offense, the advisory sentence is the starting point the
legislature has selected as an appropriate sentence for the crime committed.”
Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015). Tipton was
convicted of burglary resulting in serious bodily injury, a level 1 felony, which
carries a sentencing range of twenty to forty years and an advisory sentence of
thirty years. Ind. Code § 35-50-2-4. The trial court sentenced Tipton to forty
years, with sixteen years suspended to probation. 4 On remand, Tipton will be
sentenced for battery as a class B misdemeanor, which carries a maximum
sentence of 180 days’ imprisonment. Ind. Code § 35-50-3-3.
[14] Tipton acknowledges that his offenses were violent, but argues that “Miller
testified that he initiated the fight with Tipton that preceded the burglary.”
Appellant’s Br. at 11. After Tipton was ejected from Miller’s apartment, he had
an opportunity to go home, cool off, and end the dispute. Instead, the
intoxicated Tipton enlisted Barrus to join him in breaking into Miller’s
apartment and pummeling him with their feet, fists, and a tire iron. 5 This brutal
4
Tipton complains that he received the maximum sentence but fails to acknowledge that more than a third of
it was suspended.
5
Tipton states that “[t]here was no testimony that [he] himself used the tire iron to strike Miller.”
Appellant’s Br. at 12. As noted above, Miller testified that Tipton landed a “really solid and blunt” blow to
his head that “wasn’t a normal hit” before leaving the apartment. Tr. at 179. We agree with the State that a
reasonable inference may be drawn that Tipton used the tire iron “to deliver his parting blow” and that, in
any event, “Tipton called the shots and worked in tandem with Barrus.” Appellee’s Br. at 17.
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attack landed Miller in the hospital with numerous lacerations and abrasions,
and it also caused intense pain and lasting attention and memory deficits. The
nature of Tipton’s offenses supports an enhanced sentence far above the
advisory term.
[15] The same is true for Tipton’s character. He tried to cover up his involvement in
the crimes and laughed about his vicious assault on the outnumbered and
helpless Miller. Tipton, who was twenty-three at the time of the attack, had
been adjudicated a delinquent for conversion, strangulation, auto theft, criminal
mischief, and operating a motor vehicle without a license. As an adult, he had
been convicted of both class A and class B misdemeanor battery. Obviously,
Tipton has failed to learn any lessons from his numerous encounters with the
criminal justice system and has become only more violent over time. 6 Tipton
has failed to persuade us that his forty-year burglary sentence is inappropriate,
and therefore we affirm it. As a final consideration, we would have affirmed
Tipton’s original forty-five-year sentence, so any time that he might receive for
his class B misdemeanor battery conviction on remand will not render his
aggregate sentence inappropriate.
6
Tipton observes that he had a daughter who was not yet born at the time of his offenses and that he pays
child support. Presumably, Tipton knew that he was going to be a father and committed the offenses
anyway, which reflects unfavorably on his character. He also observes that the trial court “did note [his]
remorse for the offenses[.]” Appellant’s Br. at 12. In fact, the trial court stated, “[T]he fact that you indicate
today that you are remorseful, I’ll accept the fact that you said that, but the Court always wonders whether in
fact you are remorseful for the act, or remorseful for the fact that you’re sitting here today looking at a
minimum of twenty years.” Tr. at 630.
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[16] Affirmed in part and remanded in part.
Najam, J., and Robb, J., concur.
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