D.L.B. 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
Sep 17 2020, 8:49 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen Knecht Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C. Attorney General of Indiana
Lafayette, Indiana Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indianan
IN THE
COURT OF APPEALS OF INDIANA
D.L.B., September 17, 2020
Appellant-Respondent, Court of Appeals Case No.
20A-JV-713
v. Appeal from the
Tippecanoe Superior Court
State of Indiana, The Honorable
Appellee-Petitioner. Faith A. Graham, Judge
The Honorable
Tricia L. Thompson, Magistrate
Trial Court Cause No.
79D03-1912-JD-289
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-JV-713 | September 17, 2020 Page 1 of 12
[1] D.L.B. appeals his adjudication as a delinquent child for committing battery,1
which would be a Class B misdemeanor if committed by an adult and battery
with a deadly weapon,2 which would be a Level 5 felony if committed by an
adult. He raises the following issue for our review: whether his convictions for
both battery and battery with a deadly weapon violate the continuous crime
doctrine.
[2] We affirm.
Facts and Procedural History
[3] On December 20, 2019, Savaria Bolden (“Savaria”) was visiting her boyfriend,
John Johnson (“Johnson”), at the apartment where Johnson was living. Tr. 10-
11, 33. At some point after Savaria arrived, her younger brother, J.B. entered
the apartment. Id. at 23, 33-34. Savaria and Johnson began to argue, and J.B.
observed the argument. Id. at 23, 34. According to Johnson and Savaria, the
argument was verbal and not physical, although at least one witness stated that
the argument was physical with Johnson and Savaria striking each other. Id. at
23-24, 34-35, 90. In response to the altercation between Johnson and Savaria,
J.B. became upset, began crying, ran outside the apartment, and called either
D.L.B., who is the brother of both J.B. and Savaria, or another family member,
to tell them about the fight between Johnson and Savaria. Id. at 34-35.
1
See Ind. Code § 35-42-2-1(c)(1).
2
See Ind. Code § 35-42-2-1(c)(1), (g)(2).
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[4] A short time later, and after being told that Johnson had allegedly hit Savaria,
Robert Bolden (“Robert”), who is Savaria’s father, D.L.B., and two of Savaria’s
sisters (“the sisters”) entered the apartment without being let in by any of the
occupants. Id. at 12-13. Savaria was in the back bedroom and heard one of the
sisters, yell “[D.L.B.] beat his ass,” and Savaria exited the bedroom and ran
towards the front of the apartment. Id. at 35-37. As soon as D.L.B. walked
into the apartment, he punched Johnson in the face, and the two started to fight
by wrestling each other. Id. at 13, 24, 30. At this point, Savaria had reached
the room and observed the fight. Id. at 37. While fighting, Johnson and D.L.B.
fell onto the couch and then onto the floor. Id. at 13, 37-38. While they were
wrestling on the floor, Johnson bit D.L.B.’s neck. Id. at 22, 26, 27. Around
this time, Robert and the sisters started punching, kicking, and hitting Johnson
with a golf club. Id. at 13, 41. To protect himself from the assault, Johnson
“ball[ed] up” on the floor. Id. at 20, 26.
[5] At some point, D.L.B. was able to get up from the floor and stand up. Id. at 27.
He then started to hit Johnson with the golf club. Id. at 13, 21-22, 27, 41.
Johnson testified that D.L.B., Robert, and the sisters were “taking turns” hitting
him with the golf club. Id. at 27. During the assault, Johnson was hit in the
face, neck, back, shoulder, and groin, and he had to go to the hospital for his
injuries. Id. at 13-14. Several of Johnson’s dreadlocks were also pulled from
his head during the altercation. Id. at 16.
[6] After approximately five minutes, D.L.B. and the others stopped hitting
Johnson. Id. When Johnson was able to get up, he noticed that the television
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was missing from the living room. Id. at 17. Johnson went outside and saw
one of the sisters who had been involved in the fight trying to put the television
into a car. Id. Johnson attempted to get the television out of the car, and one of
the sisters who was driving the car tried to drive away with the television. Id. at
17-18. Johnson was almost hit by the car but was able to move out of the way
and went back inside the apartment. Id. at 18.
[7] At least two calls were made to 911 relating to the incident at the apartment.
Id. at 62, 75. One call was made by a neighbor, reporting that “there were [a]
bunch of people that were fighting” in an apartment, and another call was made
by the sister driving the car that took the television, complaining about damage
to her car. Id. at 62, 75. Lafayette Police Department Officers Michael Sears
(“Officer Sears”) and Austin Bontrager (“Officer Bontrager”) responded
separately to these 911 calls. Id. at 61-62, 74-75. When Officer Bontrager
arrived on the scene, he spoke to the sister about her car, while Officer Sears
went to speak with Johnson and Savaria. Id. at 62-63, 75-76.
[8] Officer Sears immediately requested medics to check on Johnson’s injuries
sustained in the fight, specifically the head injury. Id. at 63. Officer Sears
observed that some furniture in the apartment had been knocked over, some of
Johnson’s dreadlocks were on the ground, and there was blood on the floor and
on the wall of the apartment. Id. at 65. Johnson gave a statement to Officer
Sears, which was consistent with the injuries that the officer observed and the
evidence in the apartment, and based on the statement, officers attempted to
locate a golf club. Id. at 66-67.
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[9] As Officer Bontrager was speaking to the sister in the parking lot about her car,
D.L.B. arrived in a car driven by his mother. Id. at 67, 77. Initially, D.L.B.
told Officer Bontrager that he had not been at the apartment that night. Id. at
78. However, after Officer Bontrager went back to speak with the sister, who
told the officer that D.L.B. had been at the apartment, D.L.B. admitted to being
at the apartment and to getting into a fight with Johnson. Id. Officer Bontrager
observed that D.L.B.’s hands were bloody and that his knuckles were scraped.
Id. at 78-79. D.L.B. was arrested for battery, which would be a Class B
misdemeanor if committed by an adult, and battery with a deadly weapon,
which would be a Level 5 felony if committed by an adult. Appellant’s App. Vol.
II at 7. While Officer Sears was transporting D.L.B. to the juvenile detention
center, D.L.B. stated that he had hit Johnson with his fists. Tr. at 68.
[10] On December 27, 2019, the State filed a delinquency petition against D.L.B.,
alleging that D.L.B. was a delinquent child for committing the two battery
counts, along with disorderly conduct, which would be a Class B misdemeanor
if committed by an adult, and two counts of intimidation, which would be
Level 6 felonies if committed by an adult. Appellant’s App. Vol. II at 36-37.
Fact-finding hearings were held on February 20, 2020 and February 24, 2020,
on the two battery counts, and the State moved to dismiss the disorderly
conduct and intimidation counts. Id. at 72-75. At the conclusion of the
hearings, the juvenile court adjudicated D.L.B. delinquent on the counts of
battery and battery by means of a deadly weapon. Id. at 74-75; Tr. at 153. The
dispositional hearing was held, and the juvenile court made D.L.B. a ward of
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the Indiana Department of Correction. Appellant’s App. Vol. II at 76-81. D.L.B.
now appeals.
Discussion and Decision
[11] D.L.B. argues that his convictions for both battery and battery with a deadly
weapon violate the continuous crime doctrine. He asserts that the actions for
which he was adjudicated delinquent were so compressed in time, place,
singleness of purpose, and continuity of action as to constitute a single
transaction for purposes of the continuous crime doctrine. D.L.B. maintains
that the actions took place on the same night, in the same apartment, against
the same victim and lasted only about five minutes. He, therefore, contends
that the evidence most favorable to the juvenile court’s findings indicates that
the attack was a single transaction. Because his actions constituted a single
transaction, he claims his convictions for both Class B misdemeanor battery
and Level 5 felony battery with a deadly weapon violate the continuous crime
doctrine, and he argues that his conviction for Class B misdemeanor battery
should be vacated.
[12] The continuing crime doctrine, also known as the continuous crime doctrine,
“is a rule of statutory construction and common law limited to situations where
a defendant has been charged multiple times with the same offense.” Hines v.
State, 30 N.E.3d 1216, 1219 (Ind. 2015). Under the continuous crime doctrine,
“‘actions that are sufficient in themselves to constitute separate criminal
offenses may be so compressed in terms of time, place, singleness of purpose,
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and continuity of action as to constitute a single transaction.’” Anderson v. State,
15 N.E.3d 147, 149 (Ind. Ct. App. 2014) (quoting Riehle v. State, 823 N.E.2d
287, 296 (Ind. Ct. App. 2005), trans. denied). “‘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.’” Hines, 30 N.E.3d at 1219
(quoting Boyd v. State, 766 N.E.2d 396, 400 (Ind. Ct. App. 2002)). The purpose
of the continuing crime doctrine is to prevent the State from charging a
defendant twice for the same continuous offense. Riehle, 823 N.E.2d at 296.
“The focus . . . should be on the specific actions alleged.” Heckard v. State, 118
N.E.3d 823, 832 (Ind. Ct. App. 2019), trans. denied.
[13] Here, D.L.B. was adjudicated to be delinquent for committing battery, which
would be a Class B misdemeanor if committed by an adult, and battery with a
deadly weapon, which would be a Level 5 felony if committed by an adult.
Under Indiana Code section 35-42-2-1(c)(1), it is a Class B misdemeanor for an
individual to knowingly or intentionally touch another person in a rude,
insolent, or angry manner. The statute further provides that knowingly or
intentionally touching another person in a rude, insolent, or angry manner with
a deadly weapon, is a Level 5 felony. Ind. Code § 35-42-2-1(g)(2). In its
delinquency petition, the State alleged that D.L.B. committed Class B
misdemeanor battery when he “knowingly or intentionally touched another
person in a rude, insolent, or angry manner.” Appellant’s App. Vol. II at 26. The
State also alleged that D.L.B. committed Level 5 felony battery by means of a
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deadly weapon when he did “knowingly or intentionally touch[ed] [Johnson] in
a rude, insolent or angry manner, said touching being committed with a deadly
weapon, to wit: a golf club.” Id.[14] The evidence presented at the fact-finding hearing showed that D.L.B. and
other family members entered the apartment where Johnson was living at the
time. Tr. at 13. As soon as D.L.B. walked into the apartment, he punched
Johnson in the face, and the two started to fight by wrestling each other. Id. at
13, 24, 30. While fighting, Johnson and D.L.B. fell onto the couch and then
onto the floor. Id. at 13, 37-38. As they were wrestling and fighting on the
floor, Johnson bit D.L.B.’s neck. Id. at 22, 26, 27. At the same time, the fight
was occurring on the floor, Robert and the sisters started punching, kicking, and
hitting Johnson with a golf club. Id. at 13, 41. D.L.B. was able to get up from
the floor, stand up, and began to hit Johnson with the golf club. Id. at 13, 21-
22, 27, 41. Johnson described that during the attack D.L.B., Robert, and the
sisters were “taking turns” hitting him with the golf club. Id. at 27.
[15] The evidence presented established that the Class B misdemeanor battery
occurred when D.L.B., after being told that Johnson had allegedly hit Savaria,
struck Johnson in the face immediately after entering the apartment. After this
initial punch, D.L.B. and Johnson began to fight and wrestle, falling to the
floor. D.L.B. was then able to get up from the floor, and he then took turns
with the other individuals involved in the attack hitting Johnson with the golf
club. Nothing in the evidence presented indicated that D.L.B.’s actions of
punching Johnson and hitting him with the golf club occurred simultaneously.
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Rather, the fact that D.L.B. got up from wrestling with Johnson on the floor
and then began to hit Johnson with the golf club established that one action
must have terminated before another began. This is especially true considering
the fact that the individuals involved in striking Johnson with the golf club,
including D.L.B., were taking turns hitting Johnson with the golf club. “The
purpose [of the continuous crime doctrine] is to prevent the State from charging
a defendant twice for the same continuous offense.” Firestone v. State, 838
N.E.2d 468, 472 (Ind. Ct. App. 2005). Therefore, even though committed very
close in time, the two distinct battery offenses in the present case constitute
separate and distinct crimes and do not violate the continuous crime doctrine.
[16] In his argument that his adjudications violated the continuous crimes doctrine,
D.L.B. relies on Gomez v. State, 56 N.E.3d 697, 704 (Ind. Ct. App. 2016).
However, D.L.B.’s actions and adjudications in the present case are
distinguishable from what occurred in Gomez. In Gomez, a panel of this court
found that the defendant’s three Class A misdemeanor battery convictions for
grabbing the victim, slamming her into a wall, and pulling her hair, which
occurred during one short, uninterrupted attack as defendant was trying to get
the victim out of his home, was a continuous crime because the acts were
“compressed in terms of time, place, singleness of purpose, and continuity of
action so as to constitute a single transaction.” Id. In the present case,
although somewhat compressed in terms of time and place, the Class B
misdemeanor battery, where D.L.B. punched Johnson immediately after
entering the apartment, and the Level 5 felony battery with a deadly weapon,
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where D.L.B. took turns with other individuals hitting Johnson with a golf
club, were not sufficiently compressed in terms of singleness of purpose and
continuity of action so as to constitute a single transaction for purposes of the
continuous crime doctrine. The initial battery occurred close in time to when
one of the sisters yelled, “[D.L.B.] beat his ass,” tr. at 35-37, and the second
battery was part of a group effort to attack Johnson after D.L.B.’s initial attack
of Johnson. We conclude that D.L.B.’s adjudications for battery and battery
with a deadly weapon do not violate the continuing crime doctrine. We,
therefore, affirm D.L.B.’s adjudications of delinquency for Class B
misdemeanor battery and Level 5 felony battery with a deadly weapon.
[17] Affirmed.
Pyle, J., concurs.
Tavitas, J., dissents with separate opinion.
Court of Appeals of Indiana | Memorandum Decision 20A-JV-713 | September 17, 2020 Page 10 of 12
IN THE
COURT OF APPEALS OF INDIANA
D.L.B., Court of Appeals Case No.
20A-JV-713
Appellant-Respondent,
v.
State of Indiana,
Appellee-Petitioner.
Tavitas, Judge, dissenting.
[18] I respectfully dissent from the majority’s conclusion that D.L.B.’s adjudications
of delinquency for acts that, if committed by an adult, would be battery, a Class
B misdemeanor, and battery with a deadly weapon, a Level 5 felony, do not
violate the continuous crime doctrine. I conclude that D.L.B.’s actions that
resulted in the two battery adjudications were “so compressed in terms of time,
place, singleness of purpose, and continuity of action as to constitute a single
transaction.” Anderson, 15 N.E.3d at 149.
[19] The majority concludes that D.L.B.’s actions were “not sufficiently compressed
in terms of singleness of purpose and continuity of action so as to constitute a
single transaction for purposes of the continuous crime doctrine.” Slip op. p.
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10. D.L.B.’s actions, however, occurred at the same location; occurred during
the same continuous fight with Johnson; took place within a short amount of
time; and were both in response to Johnson’s argument with D.L.B.’s sister.
Under these circumstances, I conclude that, as in Gomez, 56 N.E.3d at 704-05,
the continuous crime doctrine applies, and I would vacate D.L.B.’s
adjudication of delinquency for an act that, if committed by an adult, would be
battery, a Class B misdemeanor.
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