Ransom v. State , 2006 Ind. App. LEXIS 1350 ( 2006 )

SULLIVAN, Judge,

concurring in part and dissenting in part.

I fully concur with respect to the lead opinion's holding as to denial of Ransom's Motion for New Trial based upon an alleged Brady violation.

As to the sufficiency of the evidence and double jeopardy issues, I write separately in order to cast the evidence and the procedural history of the case in a posture different from that stated in the lead opinion.

I would first opine that Ransom was not convicted of battery as a Class C felony. Rather she was convicted of battery as a Class A misdemeanor. My conclusion in this respect is drawn from the trial court's statement:

"On the battery, I don't think that under Richardson or the other double jeopardy cases, the handgun can be used two times. I think the battery's got to be a misdemeanor so I'll enter judgment on Count III as a, show it as guilty lesser, A misdemeanor." Tr. at 529.⁴

This pronouncement constituted a judgment of conviction upon the battery charge. As held in Stott v. State, 822 N.E.2d 176, 178 (Ind.Ct.App.2005), trans. denied:

"We are persuaded by the logic of Whatley v. State, 685 N.E.2d 48, 50 (Ind.1997), which held that the in-court pronouncement prevails over subsequent contradictory language. Here, the trial court obviously and unmistakably stated on the record that Stott was acquitted on Count One. It is elementary that the trial court be bound by its judgment."

Eliminating the use of the handgun as a necessary element of both the confinement and the battery does not end the double jeopardy inquiry. In this respect, my two colleagues approach the issue from different perspectives. Judge Darden's lead opinion concludes that the confinement and battery convictions violate double jeopardy considerations because the jury might have found that Cahill had been confined "when Reeves was striking her with the handgun, and that the jury also relied on that same evidence-including the use of the handgun-to find her guilty of battery as a Class C felony." Op. at 501. This conclusion presupposes that the conviction was truly for a Class C felony, rather than as I submit for a Class A misdemeanor.

In any event, the lead opinion would hold that there was indeed sufficient evidence for the jury to properly find that there was a confinement in that Reeves "backed Cahill against a wall' and that there was a battery in that Reeves "struck Cahill repeatedly with the handgun." Op. at 501. Judge Darden's opinion, however, finds a double jeopardy violation under the same evidence test of Richardson.

On the other hand, Judge Kirseh's dissent would hold that the confinement and the battery were discrete crimes, that the jury was properly instructed in this regard, and that there was no same evidence double jeopardy violation.

My conclusions as to the double jeopardy issue proceed from an entirely different analysis of the evidence and approach from an entirely different direction. It is my conclusion that there was no confinement separate and apart from the battery, and for that reason I concur with Judge Dar-den's opinion to the effect that there was a same evidence double jeopardy violation but must respectfully dissent from affir-mance of the battery conviction if reduced to a Class A misdemeanor. Whether as a Class C felony or a Class A misdemeanor, the battery conviction must fail.

The evidence reflects that Cahill and Reeves were walking toward each other before the besting began. Cahill was walking from the kitchen foward the living room and Reeves was in the dining room ten to twelve feet away, walking toward her pointing the gun. Given these facts, there was no confinement until Reeves held the gun to Cahill's lips and started beating her. There was no actual confinement when Reeves was ten to twelve feet away and not even as Reeves walked toward her because Cahill was also walking toward Reeves. Cahill testified that Ransom and Reeves were yelling at her during this occurrence. In response to the next question, "What did Michael Reeves do next?" she said, "He just started hitting me with the gun." Tr. at 60.⁵

It would appear that when Reeves approached Cahill and began to hit her, she was "right in front of the door" in the dining room. 'I'r. at 61. She testified that she was not "pinned against the door" but was "just up against it." Ir. at 166. The evidence does not reflect that she backed up to get in front of the door. It merely shows that that was her location when the beating, and therefore the confinement, took place.

In short, the confinement did not occur until the battery occurred. This poses the "same evidence" problem for double jeopardy purposes.

I would affirm the conviction and sentence for confinement, it being the convietion with greater penal consequences, but would reverse the conviction for battery, notwithstanding whether it is for a Class C felony or a Class A misdemeanor.

4 . The court misspoke in referring to the battery charge as Count III. Original Count I for carrying a handgun by a serious violent felon related only to Reeves. The remaining counts were renumbered so that Count I as finally submitted to the jury was for the Class B confinement. The Class C felony battery became Count II, and pointing a firearm became Count III. The court directed a verdict on new Count IV which was for the charge of carrying a handgun without a license, a Class A misdemeanor. However, during sentencing, the court misspoke to the effect that she had directed a verdict as to the pointing a firearm charge rather than the carrying a handgun charge under new Count IV. Old Count IV was for the pointing offense.

The trial court, as noted, expressed double jeopardy concerns about using the handgun as a predicate for more than one conviction. Be that as it may, the actual conviction judgments were for confinement as a Class B felony, battery as a Class A Misdemeanor, and perhaps for pointing a firearm as a Class D felony. The court sentenced Ransom to 365 days for the battery. Thus, reducing the battery to a Class A misdemeanor eliminates the firearm from the equation as to the battery and thereby eliminating any Richardson double jeopardy concerns as to inclusion of the use of a firearm as to both the confinement and the battery convictions.

Ransom does not challenge the pointing conviction perhaps because the court at a subsequent continuation of the sentencing stated that the "pointing should merge with the confinement charge." Tr. at 537. Nevertheless, the parties both presume that the trial court sentenced Ransom to six years upon the confinement conviction and two years (rather than 365 days) on the battery conviction. In doing so, the court said that the minimum sentence was two years. This could only refer to the battery conviction as a Class C felony rather than as a Class A misdemeanor. The court did not discern any unfavorable penal impact upon Ransom, however, because she noted that, "I'm running it concurrent anyway." Tr. at 537.

The fact that Reeves and Ransom were jointly tried may explain why the trial court intermixed the handgun charges as they related to the two defendants. Furthermore, the fact that the sentencing stage was fragmented might also account for the apparent discrepancy in the mind of the court as to what the precise offenses were the subject of the convictions and therefore, what the precise convictions were the subject of the sentences imposed.

5 . With regard to the "same evidence" analysis, I certainly cannot dispute that Judge Dar-den's lead opinion at page 499 accurately quotes Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999), that a double jeopardy violation occurs if with respect to "the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense." Subsequent to the Richardson opinion, however, this court held that a double jeopardy violation occurs "where the evidentiary facts establish[ ] an essential element of one offense also establish[ ] alf of the essential elements of the second challenged offense." Alexander v. State, 768 N.E.2d 971, 974 (Ind.Ct.App.2002). Our Supreme Court denied transfer. It is my view that the present state of the law with respect to the same evidence test is that a double jeopardy violation does not occur only when the evidence establishes all of the essential elements of each offense under scrutiny. As set forth in our opinion upon rehearing in' Alexander, 772 N.E.2d 476, 478 (Ind.Ct.App.2002):

''Both of the offenses being analyzed for double jeopardy purposes must be viewed in the context of the other offense. If the evidentiary facts establishing any one or more elements of one of the challenged offenses establishes the essential elements of the second challenged offense, double jeopardy considerations prohibit multiple convictions." f

This, I believe, is the message conveyed by Justice Sullivan's separate concurrence in Richardson wherein he stated that double jeopardy considerations prohibit "Comviction and punishment for a crime which consists of the very same act as an element of another crime for which the defendant has been convicted and punished." 717 N.E.2d at 55 (original italics) (emphasis supplied).

The five categories under which Justice Sullivan would find a double jeopardy violation have been recognized and applied by subsequent Supreme Court decisions even though those decisions may also refer back to the same evidence test as originally stated in Richardson. See Guyton v. State, 771 N.E.2d 1141 (Ind.2002); Miller v. State, 790 N.E.2d 437 (Ind.2003). By utilizing Justice Sullivan's same evidence double jeopardy analysis instead of merely relying upon the Richardson decision itself, it may be perceived that our Supreme Court has retreated from, if not abandoned, Richardson. Indeed, Justice Boehm's separate opinion in Guyton says precisely this: "I believe today we have in effect abandoned Richardson, and should be explicit in doing this so future trial and appellate courts can follow a consistent methodology in reviewing double jeopardy claims." 771 N.E.2d at 1149.