William Rowland Brittingham, III v. State of Indiana ( 2023 )

FILED
Apr 25 2023, 8:48 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael J. Lambert Theodore E. Rokita
Crown Point, Indiana Attorney General of Indiana
Indianapolis, Indiana
Evan M. Comer
Samuel J. Dayton
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William R. Brittingham, III, April 25, 2023
Appellant-Defendant, Court of Appeals Case No.
22A-CR-1974
v. Interlocutory Appeal from the
Lake Superior Court
State of Indiana, The Honorable Michael S.
Appellee-Plaintiff Bergerson, Senior Judge
Trial Court Cause No.
45G03-2201-F3-3
Opinion by Judge May
Judges Weissmann and Foley concur.
May, Judge.
Court of Appeals of Indiana | Opinion 22A-CR-1974 | April 25, 2023 Page 1 of 13
[1] William R. Brittingham, III, pursues an interlocutory appeal of the trial court’s
denial of his motion to dismiss. He presents one issue for our review: Whether
the State is barred by Indiana Code section 35-41-4-4 (“the Successive
Prosecution Statute”) from prosecuting Brittingham for alleged criminal acts of
kidnapping 1 and criminal confinement 2 against one victim when Brittingham
already pled guilty to committing battery 3 against a second victim. We affirm
and remand.
Facts and Procedural History 4
[2] The State alleges that Brittingham suspected his girlfriend, L.D. (“Girlfriend”),
was romantically involved with another man, R.H. Both Girlfriend and R.H.
worked at the Dollar Tree in Merrillville, Indiana, and they carpooled to work
together on January 12, 2022. When Girlfriend and R.H. arrived, Brittingham
was waiting for them in the parking lot. He immediately confronted Girlfriend
as she sat in the driver’s seat of her vehicle. He then proceeded to “[p]ull
[Girlfriend] out of the car slams her against the glass handcuffs her and throws
her in his vehicle.” (App. Vol. II at 45) (errors in original). During this
1
Ind. Code § 35-42-3-2.
2
Ind. Code § 35-42-3-3.
3
Ind. Code § 35-42-2-1.
4
We heard oral argument in this case on March 21, 2022, at Indiana University-East in Richmond. We
commend counsel for their advocacy and thank the university’s faculty, staff, and students for their warm
reception and hospitality.
Court of Appeals of Indiana | Opinion 22A-CR-1974 | April 25, 2023 Page 2 of 13
confrontation between Brittingham and Girlfriend, R.H. exited the passenger
side of Girlfriend’s vehicle and walked to the west side of the Dollar Tree to
avoid Brittingham. Shortly thereafter, R.H. left the premises of the Dollar Tree
and fled on foot to a nearby Meijer.
[3] R.H. tried to enter the Meijer, but the store was closed because it was before
6:00 a.m. Meanwhile, Brittingham drove from the Dollar Tree parking lot to
the Meijer store. He got out of his vehicle and punched R.H. several times.
Brittingham displayed a firearm and stated “something along the lines that he
would have [R.H.] arrested.” (Id. at 15.) Brittingham returned to his vehicle
and drove out of the parking lot with Girlfriend in the vehicle.
[4] Brittingham drove to the house he shared with Girlfriend and forced her into
another one of the couple’s vehicles. Brittingham then drove west along
Interstate 80. Along the way, Brittingham placed several phone calls to friends
and family in which Brittingham threatened to kill himself and Girlfriend. Law
enforcement tracked the location of Brittingham’s cell phone, and Nebraska
authorities eventually apprehended him. Girlfriend was in the vehicle with
Brittingham when he was arrested.
[5] On January 14, 2022, the State, under Cause Number 45G03-2201-F3-000003
(“Case 1”), charged Brittingham with Level 3 felony kidnapping, 5 Level 3
5
Ind. Code § 35-42-3-2(b)(3).
Court of Appeals of Indiana | Opinion 22A-CR-1974 | April 25, 2023 Page 3 of 13
felony criminal confinement, 6 Level 5 felony kidnapping, 7 and Level 6 felony
criminal confinement8 with Girlfriend as the alleged victim and Level 5 felony
intimidation, 9 Level 6 felony pointing a firearm, 10 and Class B misdemeanor
battery 11 with R.H. as the alleged victim. On February 4, 2022, the State, under
Cause Number 45D08-2202-CM-000560 (“Case 2”), charged Brittingham with
Class A misdemeanor battery. 12 The criminal information in Case 2 alleged
“that on or about January 12th, 2022, in the County of Lake, State of Indiana,
William Rowland Brittingham, did knowingly or intentionally touch [R.H.] in
a rude, insolent or angry manner, which resulted in bodily injury[.]” (Id. at 88.)
Brittingham pled guilty without benefit of a plea agreement in Case 2 on April
12, 2022. On April 25, 2022, the trial court in Case 2 sentenced Brittingham to
180 days imprisonment, which the trial court ordered suspended subject to
Brittingham’s completion of probation and anger management classes.
[6] On May 5, 2022, Brittingham moved to dismiss all the charges pending against
him in Case 1. Brittingham argued the charges in Case 1 and Case 2 “stem
from the exact incident and same factual scenario that involves the same
6
Ind. Code § 35-42-3-3(b)(3).
7
Ind. Code § 35-45-2-1(b)(2).
8
Ind. Code § 35-42-3-3(a).
9
Ind. Code § 35-45-2-1(b)(2).
10
Ind. Code § 35-47-4-3.
11
Ind. Code § 35-42-2-1(c).
12
Ind. Code § 35-42-2-1(d).
Court of Appeals of Indiana | Opinion 22A-CR-1974 | April 25, 2023 Page 4 of 13
parties” and the charges “should have been joined under the same Cause, not
two separate Causes.” (Id. at 43-44.) The State subsequently moved to dismiss
the charges in Case 1 for which R.H. was the alleged victim and filed a response
to Brittingham’s motion to dismiss. The State argued the charges stemming
from the events in the Dollar Tree parking lot were “separate and distinct” from
the charges stemming from the events in the Meijer parking lot. (Id. at 57.)
[7] During the trial court’s hearing on Brittingham’s motion to dismiss, the State
explained it could try Case 1 “and not refer at all to the Meijer incident[.]” (Tr.
Vol. II at 9.) The trial court granted the State’s motion to dismiss the charges in
Case 1 for which R.H. was the alleged victim and denied Brittingham’s motion
to dismiss the charges for which Girlfriend was the alleged victim. The trial
court explained the charges related to the alleged kidnapping and criminal
confinement of Girlfriend were “sufficiently unrelated and could be described
independently, without referring to the specific details” of the events underlying
the charges where R.H. was the alleged victim. (App. Vol. II at 76.)
Brittingham filed a motion asking the trial court to certify its order for
interlocutory appeal, and the trial court granted Brittingham’s motion. We
accepted jurisdiction over the appeal on September 19, 2022.
Discussion and Decision
[8] Brittingham asserts the trial court erred in denying his motion to dismiss
because the Successive Prosecution Statute bars his prosecution for acts against
Girlfriend in Case 1. “When, as here, a defendant has filed a motion to dismiss
Court of Appeals of Indiana | Opinion 22A-CR-1974 | April 25, 2023 Page 5 of 13
a criminal information, we take the facts alleged in the information as true.”
Johnson v. State, 194 N.E.3d 98, 105-06 (Ind. Ct. App. 2022) (internal quotation
marks omitted), trans. denied. “In general, we review a trial court’s denial of a
motion to dismiss for an abuse of discretion.” Moss v. State, 6 N.E.3d 958, 960
(Ind. Ct. App. 2016), trans. denied. A trial court abuses its discretion when “the
court’s decision is clearly against the logic and effect of the facts and
circumstances” before it. Reeves v. State, 938 N.E.2d 10, 14 (Ind. Ct. App.
2010), reh’g denied, trans. denied. However, when the motion presents a pure
question of law, we apply a de novo standard of review. Moss, 6 N.E.3d at 960.
[9] Brittingham contends his conviction in Case 2 prohibits the State from
continuing to prosecute him in Case 1. The Successive Prosecution Statute
declares:
A prosecution is barred if all of the following exist:
(1) There was a former prosecution of the defendant for a
different offense or for the same offense based on different facts.
(2) The former prosecution resulted in an acquittal or a
conviction of the defendant or in an improper termination under
section 3 of this chapter.[ 13]
13
Indiana Code section 35-41-4-3 prohibits a successive prosecution if the prosecuting authority intentionally
causes a mistrial.
Court of Appeals of Indiana | Opinion 22A-CR-1974 | April 25, 2023 Page 6 of 13
(3) The instant prosecution is for an offense with which the
defendant should have been charged in the former prosecution.
Ind. Code § 35-41-4-4(a) (footnote added). We read the phrase “should have
been charged” in subsection (a)(3) in conjunction with Indiana’s joinder statute,
Indiana Code section 35-34-1-9. D.T.A. v. State, 956 N.E.2d 195, 197 (Ind. Ct.
App. 2011). Indiana Code section 35-34-1-9(a) declares:
Two (2) or more offenses may be joined in the same indictment
or information, with each offense stated in a separate count,
when the offenses:
(1) are of the same or similar character, even if not part of a
single scheme or plan; or
(2) are based on the same conduct or on a series of acts
connected together constituting parts of a single scheme or plan.
Further, Indiana Code section 35-34-1-10(c) provides:
A defendant who has been tried for one (1) offense may
thereafter move to dismiss an indictment or information for an
offense which could have been joined for trial with the prior
offenses under section 9 of this chapter. The motion to dismiss
shall be made prior to the second trial, and shall be granted if the
prosecution is barred by reason of the former prosecution.
[10] In Williams v. State, Terrell Williams sold crack cocaine to an undercover police
officer. 762 N.E.2d 1216, 1217 (Ind. 2002). When uniformed officers started
pursuing Williams, he broke into a vacant apartment. Id. The officers arrested
Williams in the empty apartment and found crack cocaine in Williams’s sock.
Court of Appeals of Indiana | Opinion 22A-CR-1974 | April 25, 2023 Page 7 of 13
Id. at 1218. The State then charged Williams with Class D felony residential
entry and Class D felony possession of cocaine in Marion Superior Court 9. Id.Williams agreed to plead guilty to the possession of cocaine charge, and
“the State agreed not to file ‘habitual or B felony’ charges against him.” Id.(quoting the record). Despite this agreement in Court 9, the State charged
Williams in Marion Superior Court 20 with Class A felony dealing cocaine
within 1,000 feet of a school and with Class B felony possession of cocaine
within 1,000 feet of a school, and the State alleged Williams was a habitual
offender. Id.[11] Williams argued the Court 20 charges were barred by the Successive
Prosecution Statute, and our Indiana Supreme Court agreed. Id. at 1218-19.
The Court noted the Successive Prosecution Statute and Indiana Code section
35-34-1-10 act as “‘a check upon the otherwise unlimited power of the State to
pursue successive prosecutions.’” Id. at 1219 (quoting State v. Wiggins, 661
N.E.2d 878, 881 (Ind. Ct. App. 2002)). The Court centered its analysis on
whether the Court 20 prosecution “is for offenses with which Williams should
have been charged” in the Court 9 case. Id. at 1219 (emphasis in original). It
explained that “[t]o determine whether contemporaneous crimes are part of a
single scheme or plan, we examine ‘whether they are connected by a distinctive
nature, have a common modus operandi, and a common motive.’” Id. at 1220(quoting Henderson v. State, 647 N.E.2d 7, 10 (Ind. Ct. App. 1995)). “A modus
operandi is ‘a pattern of criminal behavior so distinctive that separate crimes are
recognized as the handiwork of the same wrongdoer.’” Wells v. State, 2 N.E.3d
Court of Appeals of Indiana | Opinion 22A-CR-1974 | April 25, 2023 Page 8 of 13
123, 128 (Ind. Ct. App. 2014) (quoting Penley v. State, 506 N.E.2d 806, 810 (Ind.
1987)), trans. denied.
[12] Relying on Williams, Brittingham argues his alleged offenses in Case 1 and Case
2 “are connected by a distinctive nature and have a common modus operandi.”
(Appellant’s Br. at 9.) He notes the offenses “occurred within blocks of each
other, on the same date, and within a matter of minutes of one another.” (Id.)
Brittingham also observes he “allegedly committed the charged offenses—all of
which involve the use of bodily force—against both [Girlfriend] and [R.H.]
while brandishing a firearm. And one of the victims, [Girlfriend], was present
during Appellant’s alleged commission of the charged offenses against [R.H.].”
(Id. at 9-10.) However, unlike in Williams, the State never agreed not to pursue
charges against Brittingham for his alleged crimes against Girlfriend.
Brittingham pled guilty in Case 2 without the benefit of a plea agreement.
[13] Neither the Successive Prosecution Statute nor Indiana Code section 35-34-1-10
have been interpreted “to automatically bar successive prosecutions for separate
offenses which are committed at the same time or during the same general
criminal episode.” Seay v. State, 550 N.E.2d 1284, 1288 (Ind. 1990), reh’g
denied, superseded by statute in other part. 14 In Schmidt v. State, Mark Bowyer
14
In Seay, our Indiana Supreme Court analyzed the defendant’s sentence pursuant to Indiana Code section
35-50-1-2 (1987) and held the trial court erred in ordering the defendant’s sentence to be served consecutive to
the sentence imposed in another case. 550 N.E.2d at 1289. However, the General Assembly amended the
statute in 1994, thus superseding the Court’s analysis of the earlier version of the statute. See Davidson v. State,
763 N.E.2d 441, 445 (Ind. 2002) (explaining Seay is “no longer the law by reason of 1994 amendments to the
statute governing consecutive sentences”), reh’g denied, cert. denied, 537 U.S. 1122 (2003).
Court of Appeals of Indiana | Opinion 22A-CR-1974 | April 25, 2023 Page 9 of 13
agreed to purchase concrete-crushing machines from Johann Schmidt. 986
N.E.2d 857, 858 (Ind. Ct. App. 2013), trans. denied. First Farmer’s State Bank
(“FFSB”) also extended almost $800,000 worth of loans to Schmidt “[i]n light
of the existing relationship between Bowyer and Schmidt, along with Schmidt’s
representations about his own business[.]” Id. Bowyer paid Schmidt
approximately $2 million, but Schmidt did not deliver the concrete-crushing
machines. Id. Schmidt also failed to repay the loans from FFSB, and when
FFSB went to visually inspect the collateral Schmidt pledged to secure the
loans, Schmidt admitted he sold the collateral. Id. at 859. The State filed
charges in Miami County alleging Schmidt committed theft and alleging both
FFSB and Bowyer were his victims. Id. The State also filed charges against
Schmidt in Howard County alleging Schmidt exercised unauthorized control
over Bowyer’s property because Bowyer had borrowed money from a Howard
County bank to finance his purchases from Schmidt. Id. Schmidt pled guilty to
theft from FFSB in Miami County, and the State dismissed the remaining
charges in Miami County. Id. at 859-60. The State continued to pursue the
Howard County charges, and Schmidt moved to dismiss the charges on the
basis that they were barred by the Successive Prosecution Statute. Id. at 860.
We held the statute did not bar the Howard County charges. Id. at 862. We
explained that “Schmidt committed offenses against two victims, FFSB and
Bowyer. Moreover, the offenses that Schmidt committed against each victim
are also different in time and manner.” Id.Court of Appeals of Indiana | Opinion 22A-CR-1974 | April 25, 2023 Page 10 of 13
[14] Like in Schmidt, Case 1 and Case 2 involve different victims and concern
different acts that occurred at different times. In Case 1, the State charged
Brittingham with kidnapping and criminal confinement against Girlfriend.
Indiana Code section 35-42-3-2 provides: “A person who knowingly or
intentionally removes another person, by fraud, enticement, force, or threat of
force, from one place to another commits kidnapping.” The offense is a Level 3
felony if the perpetrator commits it while armed with a deadly weapon. Ind.
Code § 35-42-3-2(b)(3). Kidnapping “does not require an asportation of any
particular distance.” Reed v. State, 379 N.E.2d 249, 252 (Ind. 1978). For
example, forcibly removing someone from the inside of a store to the store’s
parking lot is sufficient to constitute kidnapping. Id. This asportation element
differentiates kidnapping from criminal confinement. See Jones v. State, 159
N.E.3d 55, 66 (Ind. Ct. App. 2020) (“Kidnapping requires removal from one
place to another, while criminal confinement requires an act of confinement. In
removing someone from one place to another, a kidnapper has confined that
person to those places. The element of confinement is a necessary part of
forced removal.”), trans. denied. Criminal confinement merely requires the
perpetrator to knowingly or intentionally confine another person without the
other person’s consent. Ind. Code § 35-42-3-3. In Case 1, Brittingham
allegedly committed the crime of criminal confinement when he pulled
Girlfriend out of her vehicle and forced her into his vehicle, and Brittingham
allegedly committed kidnapping when he drove out of the Dollar Tree parking
lot.
Court of Appeals of Indiana | Opinion 22A-CR-1974 | April 25, 2023 Page 11 of 13
[15] In Case 2, Brittingham’s battery of R.H. occurred only after he is alleged to
have kidnapped Girlfriend. We agree with the State that “once Brittingham
had finished handcuffing [Girlfriend] and stuffing her in his car, he made a
separate criminally culpable choice to follow [R.H.] and attack him.”
(Appellee’s Br. at 10.) Girlfriend witnessed Brittingham batter R.H., but the
State does not need to present evidence of what occurred in the Meijer parking
lot to prove Brittingham criminally confined and kidnapped Girlfriend.
Brittingham’s battery of R.H., which was the subject of Case 2, is thus distinct
from his alleged criminal acts against Girlfriend, and the acts also do not share
a common modus operandi. See Schmidt, 986 N.E.2d at 862 (holding Schmidt’s
thefts from FFSB perpetuated by fraudulent loan agreements were distinct from
his thefts from Bowyer by means of promises not connected to Schmidt’s
dealings with FFSB).
[16] With respect to motive, Brittingham contends both Case 1 and Case 2 “share a
common motive: Appellant allegedly committed the offenses against both
[Girlfriend] and [R.H.] because he believed the two were having an affair.”
(Appellant’s Br. at 10.) However, while jealousy likely fueled Brittingham’s
actions, his intention with respect to each victim was different. Brittingham’s
intention with respect to R.H. was simply to scare him away and inflict some
degree of physical pain. In contrast, as the State contends, Brittingham
intended to terrorize Girlfriend: “Brittingham . . . wanted to take [Girlfriend]
far away and make her suffer forever, either because he was going to kill her or
Court of Appeals of Indiana | Opinion 22A-CR-1974 | April 25, 2023 Page 12 of 13
psychologically traumatize her by forcing her to watch and be scarred by his
suicide.” (Appellee’s Br. at 10-11.)
[17] Therefore, we affirm the trial court’s denial of Brittingham’s motion to dismiss
because the three Williams factors indicate Brittingham’s alleged criminal acts
against Girlfriend and his battery of R.H. were not part of the same single
scheme or plan. See State v. Dixon, 924 N.E.2d 1270, 1273 (Ind. Ct. App. 2010)
(holding the Successive Prosecution Statute did not bar the State from pursuing
a criminal recklessness charge even though the defendant already pled guilty to
operating while intoxicated because the two crimes did not share a distinctive
nature, modus operandi, or common motive), trans. denied.
Conclusion
[18] The Successive Prosecution Statute does not bar the State from prosecuting
Brittingham for his alleged criminal acts against Girlfriend in Case 1 even
though Brittingham pled guilty to battering R.H. in Case 2. The criminal acts
underlying the two cases involved different victims, occurred at different times
and in different places, and were fueled by distinct intentions. Therefore, we
affirm the trial court and remand for further proceedings.
[19] Affirmed and Remanded.
Weissmann, J., and Foley, J., concur.
Court of Appeals of Indiana | Opinion 22A-CR-1974 | April 25, 2023 Page 13 of 13