Chad A. George v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 29 2017, 9:02 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Curtis T. Hill, Jr.
Madison, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Chad A. George, June 29, 2017
Appellant-Defendant, Court of Appeals Case No.
39A01-1612-CR-2740
v. Appeal from the Jefferson Circuit
Court
State of Indiana, The Honorable Darrell M. Auxier,
Appellee-Plaintiff Judge
Trial Court Cause No.
39C01-1512-F4-1235
May, Judge.
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[1] Chad A. George appeals his convictions of Level 3 felony burglary, 1 Level 5
felony criminal confinement, 2 and Class A misdemeanor domestic battery. 3 He
presents two issues for our review:
1. Whether the State presented sufficient evidence George
possessed the requisite intent to commit Level 3 felony burglary;
and
2. Whether his convictions of burglary, criminal confinement,
and domestic battery subjected him to double jeopardy.
The State concedes George’s convictions of burglary, criminal confinement,
and domestic battery violated his right to be free from double jeopardy. We
affirm in part, reverse in part, and remand for resentencing. 4
Facts and Procedural History
[2] Tina Cosby and George had been in an “on and off relationship” for several
years. (Tr. at 45.) In November 2015, an incident occurred in which George
became physically aggressive toward Cosby, including choking her, throwing
1
Ind. Code § 35-43-2-1(2) (2014).
2
Ind. Code § 35-42-3-3(b)(1) (2014).
3
Ind. Code § 35-42-2-1.3(a) (2014).
4
George also asserts his sixteen-year aggregate sentence is inappropriate for his character and offenses. As
we modify two of his convictions and remand for resentencing, we need not consider that issue.
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her, hitting her in the face, and attempting to force her to swallow medication.
Cosby sustained some bruising to her face from this altercation.
[3] On December 23, 2015, Cosby heard a knock on her apartment door, and
opened it expecting to see one of her neighbors. Instead, George was at the
door and said, “Bitch, I bet you didn’t think you was [sic] going to see me
again.” (Id. at 50.) George pushed his way into Cosby’s apartment despite her
attempts to close the door. George said he just wanted to talk to Cosby. Cosby
told George to leave her apartment, but he refused. Cosby could smell alcohol
on his breath. George was upset with Cosby because she was “talking to these
other people” and damaging a case pending against him. (Id. at 51.)
[4] When Cosby attempted to exit the apartment, George shoved her, pulled her
back by her hair, and caused them both to fall back into a table knocking over a
candle and breaking a chair. George then placed his hands around Cosby’s
neck. Once released, Cosby made a run for her door and placed her right knee
into a gap between the door and the door frame to keep George from shutting
it. Cosby shouted, “No, Chad. No, no, no.” (Id. at 52.)
[5] The pair agreed to walk out of the apartment. Once outside, Cosby attempted
to “make a beeline [sic]” for her door, (id.), to get back inside her apartment,
but George grabbed her with one hand on her throat and the other hand pulling
her tank top. (Id.) A neighbor called 911 after witnessing the altercation and
hearing Cosby screaming.
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[6] Cosby began walking toward a gas station because “there’s [sic] cameras if
anything happens.” (Id. at 53.) George was walking after Cosby until law
enforcement arrived and ordered the pair to stop. The pair was instructed to
approach Officer Decker. Cosby approached first, and Officer Decker saw her
lip was bloody and her shirt was ripped open, exposing her breasts. According
to Officer Decker, Cosby was behaving “excited, scared to death, [and]
unintelligible.” (Id. at 89.) While Cosby waited by the patrol car, Officer
Decker placed George in handcuffs until other officers arrived. Officer Decker
detected the smell of alcohol on George and observed George was unsteady on
his feet, so he secured George in the back of the patrol car.
[7] Officer Decker took Cosby back to her apartment and spoke with her there. He
noticed a broken chair, an upturned end table, and candle wax on the carpet.
Officer Decker took photographs of Cosby’s appearance and injuries including:
“a defensive wound on the forearm,” (id. at 93), blood on her lip, and bruising
and redness on her face. Cosby indicated at trial that the bruising to her face
“was still healing up from the November incident,” and was not from
December 23. (Id. at 60.) Officer Decker also collected Cosby’s torn tank top
for evidence.
[8] The State charged George with Level 3 felony burglary, Level 5 felony criminal
confinement, Level 6 felony attempted strangulation, 5 Class A misdemeanor
5
Ind. Code § 35-42-2-9(b) (2014).
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domestic battery, and Class B misdemeanor public intoxication. 6 The State
dismissed the Class B misdemeanor charge prior to trial. After a two-day jury
trial, George was convicted of burglary, criminal confinement, and domestic
battery. The trial court sentenced him to twelve years for burglary, four years
for criminal confinement, and one year for domestic battery to be served
concurrent with the consecutive felony sentences, resulting in an aggregate
sentence of sixteen years.
Discussion and Decision
Sufficiency of the Evidence
[9] When reviewing sufficiency of the evidence to support a conviction, we must
consider only the probative evidence and reasonable inferences supporting the
verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not reweigh
evidence or assess the credibility of witnesses, as that is the role of the fact-
finder. Id. When confronted with conflicting evidence, we must consider it
most favorably to the verdict. Id. We affirm a “conviction unless no reasonable
fact-finder could find the elements of the crime proven beyond a reasonable
doubt.” Id. It is therefore not necessary that the evidence overcome every
reasonable hypothesis of innocence, but rather the evidence is sufficient if an
inference reasonably may be drawn from it to support the verdict. Id. at 147.
6
Ind. Code § 7.1-5-1-3(a) (2012).
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[10] To prove George committed Level 3 felony burglary, the State was required to
show that (1) George, (2) broke and entered the structure of Cosby, (3) with the
intent to commit a felony or theft in it, and (4) George’s conduct resulted in
bodily injury to Cosby. See Ind. Code § 35-43-2-1(2) (2014). George argues
that, because his stated intent for entering Cosby’s residence was to talk, not
commit a specific crime therein, the State did not present sufficient evidence for
his burglary conviction. We disagree.
[11] “A criminal conviction for burglary requires proof beyond a reasonable doubt
of a specific criminal intent which coincides in time with the acts constituting
the breaking and entering.” Robinson v. State, 541 N.E.2d 531, 533 (Ind. 1989),
reh’g denied. “The intent to commit a felony may be inferred from the
circumstances.” Taylor v. State, 514 N.E.2d 290, 291 (Ind. 1987). A burglary
conviction can be sustained from circumstantial evidence alone. Id. “Burglars
rarely announce their intentions at the moment of entry.” Gilliam v. State, 508
N.E.2d 1270, 1271 (Ind. 1987), reh’g denied. Further, a burglar can have
multiple intents during the moment of breaking and entering, and other intents
besides committing a felony “would subtract nothing from the reasonability of
inferring the concurrent intent to do violence if confronted.” Eby v. State, 154
Ind. App. 509, 518, 290 N.E.2d 89, 95 (1972), reh’g denied.
Whatever may have been [an intruder’s] primary intent or
purpose, he must have anticipated that confrontation with the
home’s inhabitants was not unlikely and that his presence would
not be welcome. If a confrontation then occurs and he does
commit an act of violence upon the person he then confronts, the
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commission of the act is sufficient to justify the inference that he
entered with the specific intent to do what he did, provided the
occasion arose.
Id. at 518, 290 N.E.2d at 95.
[12] One month after the two had been in a physical altercation, George came to
Cosby’s apartment smelling of alcohol. He greeted her with vulgar language
and pushed his way into her apartment as she tried to keep him out. George
ignored Cosby’s requests to leave her apartment and became violent with her
when she attempted to leave. It is reasonable that a jury would infer George
possessed a culpable intent to commit a felony when he entered Cosby’s
apartment. See, e.g., Baker v. State, 968 N.E.2d 227, 231 (Ind. 2012) (burglary
conviction upheld because intent to commit theft was supported by defendant
rummaging through cabinets of the church he broke and entered).
Double Jeopardy
[13] George’s convictions of burglary resulting in bodily injury, criminal
confinement resulting in bodily injury, and domestic battery were all proven
using the same bodily injury. The State concedes this subjected George to
double jeopardy.
[14] According to our Indiana Constitution, “No person shall be put in jeopardy
twice for the same offense.” Ind. Const. art. I, § 14. A double jeopardy
violation occurs if the same bodily injury is used to prove the elements of two
separate offenses. See Carter v. State, 956 N.E.2d 167, 173-74 (Ind. Ct. App.
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2011) (double jeopardy violation when the State did not distinguish injuries that
supported burglary charge from those supporting robbery charge), trans. denied.
We consider the statutes, charging instruments, evidence, and arguments of
counsel to determine whether the facts establishing one crime are the same as
the facts establishing one or more elements of another crime. Id. at 173.
[15] During this incident, Cosby sustained several injuries including a “defensive
wound on the forearm,” (Tr. at 93), a bloody lip, and “redness” on her
forehead. (Id. at 61.) At trial, no distinctions were drawn regarding which
injuries the jury should use to support which convictions when finding George
guilty. The State concedes there was a double jeopardy violation. (See
Appellee’s Br. at 16 (“Because each of these charges require the element of
bodily injury and because the jury may have used the same injury to support
each conviction, Defendant’s convictions cannot stand.”).)
[16] The State also concedes the remedy is to reduce George’s conviction of Level 5
felony criminal confinement to Level 6 felony criminal confinement, and to
reduce his Class A misdemeanor domestic battery conviction to Class B
misdemeanor battery, as the reduced charges do not require proof of bodily
injury. We agree and order George’s convictions reduced accordingly. See
Caldwell v. State, 43 N.E.3d 258, 269 (Ind. Ct. App. 2015) (burglary conviction
reduced to a Class B felony when the same injuries were used to enhance two of
defendant’s charges), trans. denied. As we reduce two of George’s convictions,
we remand for the trial court to resentence George accordingly.
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Conclusion
[17] The State presented sufficient evidence George had the requisite intent to
commit Level 3 felony burglary resulting in bodily injury. However, George’s
constitutional right to be free from double jeopardy was violated by his
conviction of three crimes based on the same bodily injury. Accordingly, we
reduce his convictions of criminal confinement and domestic battery to lesser
included offenses that do not require proof of bodily injury, and remand for
resentencing.
[18] Affirmed in part, reversed in part, and remanded.
Brown, J., and Pyle, J., concur.
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