Jonathan O Connor v. State of Indiana ( 2024 )

FILED
May 01 2024, 9:25 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Court of Appeals of Indiana
Jonathan D. O’Connor,
Appellant-Defendant
v.
State of Indiana,
Appellee-Plaintiff
May 1, 2024
Court of Appeals Case No.
23A-CR-2233
Appeal from the Henry Circuit Court
The Honorable Kit C. Dean Crane, Judge
Trial Court Cause No.
33C02-1812-F3-17
Opinion by Judge Mathias
Judges May and Vaidik concur.
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Mathias, Judge.
[1] Jonathan D. O’Connor appeals his convictions for Level 1 felony attempted
murder and Level 3 felony aggravated battery. 1 O’Connor raises the following
two issues for our review:
1. Whether his two convictions violate Indiana’s protections
against double jeopardy.
2. Whether the State presented sufficient evidence to support his
conviction for attempted murder.
[2] We affirm O’Connor’s conviction for attempted murder, but, following our
Supreme Court’s recent opinion in A.W. v. State, 229 N.E.3d 1060 (Ind. 2024),
we reverse his conviction for aggravated battery as contrary to Indiana’s
protections against double jeopardy. We remand to the trial court with
instructions to vacate O’Connor’s conviction and sentence for that offense.
Facts and Procedural History
[3] Alejandra Tellez used to purchase pain pills from Christopher Williams.
However, she ceased doing so and cut off communication with Williams
around June 2018 because Williams had become romantically interested in
Tellez, and she did not share that interest in him.
1
O’Connor does not appeal his convictions for Level 6 felony criminal confinement or Class A misdemeanor
theft.
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[4] Williams and O’Connor knew each other, and O’Connor also had previously
sold pills to Tellez. On June 11, after Tellez had cut off communication with
him, Williams used O’Connor’s phone to contact her. He told her he had some
pills that he could sell her on June 12, and she agreed to meet Williams.
[5] On the morning of June 12, Williams met with O’Connor at O’Connor’s
apartment. There, the two discussed abducting and raping Tellez. Williams
said, “let’s go do this,” and the two took O’Connor’s car to where Williams had
arranged to meet with her. Tr. Vol. 2, p. 219. On the way, it became clear to
O’Connor that Williams also intended to “murder” Tellez. Tr. Vol. 3, pp. 6-7.
[6] Williams drove O’Connor’s vehicle to the arranged location. There, Tellez got
into the back seat. She was “surprised” to see that O’Connor also was in the
back seat. Id. at 69. Williams drove off with Tellez in the vehicle. O’Connor
then tied Tellez’s hands and feet together with duct tape.
[7] At some point, O’Connor and Williams switched places in the vehicle.
O’Connor drove the vehicle from Indianapolis to Henry County. While driving
on a back road, he saw Williams strangling Tellez and thought that Williams
had killed her. O’Connor then pulled next to a ravine, and Williams threw
Tellez down it. Afterwards, O’Connor drove Williams to two different
locations, where Williams disposed of Tellez’s cell phone and other personal
belongings.
[8] Tellez survived the ordeal, and, in the evening hours of July 13, nearby
motorists located her after hearing her struggling to yell for help. At a nearby
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hospital, she was treated for several injuries, including a brain injury resulting
from oxygen deprivation and petechiae, or hemorrhages in the eyes, which are
usually caused by strangulation.
[9] Law enforcement officers identified Williams and O’Connor as the likely
perpetrators, and O’Connor later made incriminating statements to officers.
The State charged O’Connor in relevant part with Level 1 felony attempted
murder and Level 3 felony aggravated battery, both of which were under a
theory of accomplice liability. According to the charging information,
O’Connor had aided Williams in Williams’s attempt to murder Tellez by
strangulation. The charging information similarly alleged that O’Connor had
aided Williams in Williams’s commission of aggravated battery when Williams
“knowingly or intentionally inflict[ed] injury” on Tellez, which caused
impairment to her “eye.” Appellant’s App. Vol. 2, p. 128.
[10] Tellez testified against O’Connor. The State also had O’Connor’s statements to
officers admitted into evidence. During closing argument, the State discussed
part of the evidence underlying the allegation of attempted murder as follows:
“The marks around her neck, the petechiae eye and her eyes, and the anoxic
brain injury are all consistent with establishing that Christopher Williams
strangled Alejandra to the near point of death.” Tr. Vol. 3, pp. 181-82. And,
with respect to the aggravated battery allegation, the State described the
relevant evidence similarly: “Alejandra’s testimony was that she was
temporarily blind [after the attack]. . . . And there’s no evidence to suggest that
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anything other than the strangulation was the cause of her loss of vision.” Id. at
184.
[11] The jury found O’Connor guilty of Level 1 felony attempted murder and Level
3 felony aggravated battery. The court then entered its judgment of conviction
and sentenced O’Connor accordingly. This appeal ensued.
1. O’Connor’s two convictions are contrary to Indiana’s
protections against double jeopardy.
[12] On appeal, O’Connor first contends that his convictions for Level 1 felony
attempted murder and Level 3 felony aggravated battery are contrary to
Indiana’s protections against double jeopardy. We review such questions de
novo. A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024).
[13] Indiana’s protection against substantive double jeopardy prohibits “multiple
convictions for the same offense in a single proceeding.” Id. at 1066. To
determine if a substantive double jeopardy violation has occurred, we apply a
“three-part test based on statutory sources . . . .” Id. The first step is to look to
the statutory language of the offenses at issue; if that language “clearly permits
multiple punishments,” then “there is no violation of substantive double
jeopardy.” Id. (quotation marks omitted). Here, O’Connor and the State agree
that the first step is not dispositive, and so we proceed to the second step.
[14] Under the second step, as clarified by our Supreme Court in A.W., we look to
the face of the charging information to discern if the factual bases identified for
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the charges implicate our statutory definitions of an “included offense.” Id. In
particular, the Indiana Code defines an included offense as an offense that:
(1) is established by proof of the same material elements or less
than all the material elements required to establish the
commission of the offense charged;
(2) consists of an attempt to commit the offense charged or an
offense otherwise included therein; or
(3) differs from the offense charged only in the respect that a less
serious harm or risk of harm to the same person, property, or
public interest, or a lesser kind of culpability, is required to
establish its commission.
Ind. Code § 35-31.5-2-168 (2017). As we have previously recognized,
aggravated battery is included in attempted murder where the fact-finder
“would necessarily have to find that all of the material elements of aggravated
battery” have been met in order to find that the means used to commit the
attempted murder were met. Demby v. State, 203 N.E.3d 1035, 1045 (Ind. Ct.
App. 2021), trans. denied.
[15] Here, the face of the charging information identifies the factual basis of the
means used to commit attempted murder as Williams’s strangulation of Tellez.
Appellant’s App. Vol. 2, p. 128. However, the face of the charging information
does not identify a factual basis for the aggravated battery allegation. Id.Instead, the charging information for that allegation simply tracks the statutory
language of the offense. See I.C. § 35-42-2-1.5 (2017).
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[16] Thus, the charging information here is ambiguous as to whether the aggravated
battery charge may have been included in the attempted murder charge. In such
circumstances, our Supreme Court made clear in A.W. that we “must
construe those ambiguities in the defendant’s favor, and thus find a presumptive
double jeopardy violation” at this step in the analysis.2 A.W., 229 N.E.3d at
1069. We therefore conclude that O’Connor has established a presumptive
double jeopardy violation, and we turn to step three.
[17] Under step three, the State may rebut the presumptive double jeopardy
violation by using the facts presented at trial to demonstrate a “distinction
between what would otherwise be two of the ‘same’ offenses.” Id. at 1071.
However, “if the facts show only a single continuous crime, and one statutory
offense is included in the other,” the State may not obtain cumulative
convictions. Id. (quotation marks omitted).
[18] Here, the State cannot demonstrate a distinction between the attempted murder
allegation and the aggravated battery allegation based on the facts from the
trial. To the contrary, the prosecutor made clear in his closing remarks that the
factual basis for the aggravated battery allegation was Williams’s strangulation
of Tellez, which was also the means used by Williams in his attempt to murder
2
We also recognize that, if the State were to allege one factual basis in its charging information but then
attempt to prove that charge using a different factual basis at trial, the State would implicate the defendant’s
fundamental due process rights under our Supreme Court’s analysis in Young v. State, 30 N.E.3d 719, 724-28
(Ind. 2015).
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her. Accordingly, the facts show only a single continuous crime between the
two allegations.
[19] Where a defendant is found guilty of both the greater offense and an included
offense, the proper procedure is to vacate the conviction for the included offense
and to enter a judgment of conviction and sentence only upon the greater
offense. See, e.g., Demby, 203 N.E.3d at 1046. We therefore reverse O’Connor’s
conviction for Level 3 felony aggravated battery and remand to the trial court
for it to vacate that conviction and sentence accordingly.
2. The State presented sufficient evidence to show that
O’Connor committed attempted murder.
[20] O’Connor also argues that the State failed to present sufficient evidence to
support his conviction for attempted murder. For sufficiency of the evidence
challenges, we consider only probative evidence and reasonable inferences that
support the judgment of the trier of fact. Hall v. State, 177 N.E.3d 1183, 1191
(Ind. 2021). We will neither reweigh the evidence nor judge witness credibility.
Id. We will affirm a conviction unless no reasonable fact-finder could find the
elements of the crime proven beyond a reasonable doubt. Id.[21] As our Supreme Court has held, to prove attempted murder under a theory of
accomplice liability, the State must show that the defendant
knowingly or intentionally aided, induced, or caused [his
confederate] to commit the attempted murder of [the victim]. The
accomplice liability statute permits a defendant to be found guilty
as an accomplice without the jury finding that the defendant
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committed every element of the crime when that defendant
“knowingly or intentionally aids, induces, or causes another
person to commit an offense.” For many crimes, it is sufficient to
prove that a defendant either “knowingly” or “intentionally”
performed a prohibited act. It is well settled, however, that a
conviction for attempted murder requires proof of specific intent
to kill. See Spradlin v. State, 569 N.E.2d 948, 950 (Ind.1991).
Bethel v. State, 730 N.E.2d 1242, 1245-46 (Ind. 2000) (statutory citation
omitted). O’Connor argues only that the State failed to show that he had the
requisite intent to support his conviction.
[22] We disagree and conclude that a reasonable fact-finder could have readily
found that the State presented sufficient evidence to support O’Connor’s
conviction for attempted murder. The day prior to the abduction, O’Connor
allowed Williams to use his phone to contact Tellez. The following morning,
Williams and O’Connor discussed abducting and raping Tellez. O’Connor then
went with Williams to execute that plan, and, en route, it became clear to
O’Connor that Williams also intended to murder Tellez. O’Connor nonetheless
continued with Williams to locate, abduct, and bind Tellez, and O’Connor
drove Tellez and Williams to a remote location in another county. O’Connor
then watched Williams strangle Tellez and throw her body down a ravine, after
which he helped Williams dispose of Tellez’s personal property in multiple
locations.
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[23] The State presented sufficient evidence from which a reasonable fact-finder
could conclude that O’Connor acted with the specific intent to kill Tellez. We
therefore affirm his conviction for attempted murder.
Conclusion
[24] For all of the above-stated reasons, we affirm O’Connor’s conviction for Level 1
felony attempted murder and we reverse his conviction for Level 3 felony
aggravated battery. We remand to the trial court with instructions for it to
vacate O’Connor’s conviction and sentence for Level 3 felony aggravated
battery.
[25] Affirmed in part, reversed in part, and remanded with instructions.
May, J., and Vaidik, J., concur.
ATTORNEY FOR APPELLANT
Lisa Diane Manning
Plainfield, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Daylon L. Welliver
Deputy Attorney General
Indianapolis, Indiana
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