976 N.E.2d 1271
Ind. Ct. App.2012Background
- Jones was convicted of six counts: two domestic battery charges (one Class D felony, one Class A misdemeanor), strangulation (Class D felony), criminal confinement (Class D felony), battery (Class A misdemeanor), and interference with reporting a crime (Class A misdemeanor).
- The incidents occurred April 13, 2011 in Indianapolis, involving Jones, his girlfriend R.O., and two young children present during the events.
- Commissioner John J. Boyce presided as judge pro tempore for the trial and initial sentencing; later Judge Barbara A. Collins conducted a second sentencing proceeding.
- After the November 2011 proceedings, a December 2011 hearing sought further evaluations; on January 24, 2012, Judge Collins issued an amended sentence, with all counts running concurrently.
- Jones appeals challenging timing of the notice of appeal, double jeopardy issues with battery convictions and criminal confinement, whether Judge Collins had authority to amend the sentence, and prosecutorial misconduct during closing argument, with the court affirming in part, reversing in part, and remanding.
- Key procedural posture includes a challenge to a sentence redos and the propriety of the amended sentencing following evaluations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of notice of appeal | Jones’s appeal timely under CCS-entry rule. | Jones’s appeal timely since final judgment was noted on January 24, 2012. | Timely; notice filed within 30 days after final judgment was entered. |
| Double jeopardy for battery convictions | Counts IV and V are lesser offenses of Count I and should be vacated. | All three battery convictions may derive from separate facts; potential double jeopardy. | Vacate Counts IV and V; leave Count I intact. |
| Double jeopardy for criminal confinement | Confinement uses the same facts as battery/strangulation. | Confinement involved separate elements/facts. | Criminal confinement conviction not barred by double jeopardy. |
| Authority to vacate sentence by judge | Judge Collins lacked authority to alter Boyce’s sentence. | Judge Collins could amend after additional evaluations. | Amended sentence valid; no fundamental error. |
| Prosecutorial misconduct by vouching for credibility | Prosecutor vouched for RO’s credibility in closing. | Defense did not preserve error for review; but if fundamental, relief possible. | Not fundamental error; no new trial required. |
Key Cases Cited
- Richardson v. State, 717 N.E.2d 32 (Ind. 1999) (actual evidence test for double jeopardy; two offenses may violate if same evidentiary facts establish essential elements)
- Spivey v. State, 761 N.E.2d 831 (Ind. 2002) (defines the actual evidence test and separation of evidentiary facts)
- True v. State, 954 N.E.2d 1105 (Ind. Ct. App. 2011) (presence of children in domestic battery requires possibility to see/hear; not actual sighting required)
- Moala v. State, 969 N.E.2d 1061 (Ind. Ct. App. 2012) (vacatur/reevaluation approach when multiple convictions violate double jeopardy)
- Cain v. State, 955 N.E.2d 714 (Ind. 2011) (prosecutorial misconduct preservation and review framework)
- Beeler v. State, 959 N.E.2d 828 (Ind. Ct. App. 2011) (probation/placement is discretionary; not a fundamental error)