MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Nov 01 2016, 9:39 am
regarded as precedent or cited before any                             CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                       Gregory F. Zoeller
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Paula J. Beller
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Damon Hohman,                                           November 1, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1603-CR-442
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Sheila A. Carlisle,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G03-1507-F1-24667



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-442| November 1, 2016     Page 1 of 8
                               Case Summary and Issues
[1]   Following a jury trial, Damon Hohman was convicted of, inter alia, criminal

      confinement as a Level 3 felony and battery by means of a deadly weapon as a

      Level 5 felony. On appeal, Hohman challenges his convictions for criminal

      confinement and battery by means of a deadly weapon, raising two issues for

      our review: (1) whether the evidence is sufficient to sustain these convictions,

      and (2) whether these convictions violate the prohibition against double

      jeopardy. Concluding the evidence is sufficient and Hohman’s convictions do

      not violate the prohibition against double jeopardy, we affirm.



                            Facts and Procedural History
[2]   In 2011, Hohman and Ann McDowell began dating and eventually had one

      child together. In May 2014, the couple ended their relationship. By December

      2014, McDowell was dating Marlan King. On December 9, 2014, King and

      McDowell went on a date and did not return to McDowell’s home until two in

      the morning. Not long after they arrived, they began arguing, so King returned

      to his home and McDowell went to bed.


[3]   At some point after McDowell fell asleep, she awoke to a man on top of her

      inserting his penis inside of her. McDowell initially thought the man was King

      but then opened her eyes and realized it was Hohman. Hohman had pinned

      her to the bed so she could not move and threatened her with a knife she

      recognized from a set of knives from her kitchen. When McDowell put her


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      hands to her face and began crying, she discovered she had been cut on her

      hand while sleeping and was bleeding. Hohman said he had to cut her because

      she “wouldn’t stop moving.” Transcript at 416.


[4]   Eventually, Hohman allowed McDowell to enter the bathroom to get dressed.

      The two began arguing. Hohman then slapped McDowell in the face and

      ordered her to return to the bed. McDowell slammed the bathroom door shut,

      escaped through the second-floor bathroom window, and ran to a neighbor’s

      house. Hohman fled the scene. The police were called and Hohman was later

      arrested. A search of McDowell’s home found a knife from her knife set was

      missing, but the knife used in the attack was never recovered.


[5]   The State charged Hohman with rape as a Level 1 felony, burglary as a Level 2

      felony, criminal confinement as a Level 3 felony, battery by means of a deadly

      weapon as a Level 5 felony, domestic battery as a Level 6 felony, battery

      resulting in bodily injury as a Class A misdemeanor, and invasion of privacy as

      a Class A misdemeanor. In August 2015, a jury found Hohman not guilty of

      burglary and guilty of domestic battery, Class A misdemeanor battery, and

      invasion of privacy. The jury reached an impasse as to the rape, criminal

      confinement, and battery by means of a deadly weapon charges, and a second

      jury trial was held in January 2016 as to those counts. The jury found Hohman

      not guilty of rape, but guilty of criminal confinement and battery by means of a

      deadly weapon. Hohman now appeals only his convictions for criminal

      confinement and battery by means of a deadly weapon.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-442| November 1, 2016   Page 3 of 8
                                Discussion and Decision
                              I. Sufficiency of the Evidence
                                     A. Standard of Review
[6]   When reviewing the sufficiency of the evidence to support a conviction, we

      consider only the probative evidence and reasonable inferences supporting the

      judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We neither reweigh

      the evidence nor reassess the credibility of witnesses. Id. We will affirm a

      conviction unless “no reasonable fact-finder could find the elements of the

      crime proven beyond a reasonable doubt.” Id. at 146-47 (citation omitted).


                                 B. Use of a Deadly Weapon
[7]   Hohman argues the evidence is insufficient to support his convictions for

      criminal confinement and battery by means of a deadly weapon. The State

      charged Hohman with criminal confinement as a Level 3 felony, alleging he

      committed the offense while armed with a deadly weapon. Indiana Code

      section 35-42-3-3(a) states a person who knowingly or intentionally confines

      another person without the other person’s consent commits criminal

      confinement as a Level 6 felony. The crime is elevated to a Level 3 felony if the

      offense is committed while armed with a deadly weapon. Ind. Code § 35-42-3-

      3(b)(2)(A). The State also charged Hohman with battery by means of a deadly

      weapon as a Level 5 felony. Indiana Code section 35-42-2-1(c) states a person

      who knowingly or intentionally touches another person in a rude, insolent, or

      angry manner commits battery as a Class B misdemeanor. The crime is

      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-442| November 1, 2016   Page 4 of 8
      elevated to a Level 5 felony if the offense is committed with a deadly weapon.

      Ind. Code § 35-42-2-1(g)(2).


[8]   The crux of Hohman’s argument is that, because law enforcement did not find

      the knife, coupled with his contention McDowell’s testimony is unreliable,

      there is a reasonable possibility no knife was actually used in the commission of

      these crimes. Such an argument invites us to reweigh the evidence and reassess

      witness credibility, which we will not do. Drane, 867 N.E.2d at 146. The

      evidence establishes McDowell awoke to Hohman on top of her, pinning her to

      the bed so she was unable to move, and threatening her with a knife. In

      addition, McDowell discovered she had been cut on her hand while she slept.

      Hohman admitted to cutting her. Moreover, McDowell recognized the knife

      Hohman used as a knife from a knife set in her kitchen. We acknowledge

      McDowell does not remember being cut and only discovered the wound after

      waking up, but note the evidence supporting the verdict gives rise to a

      reasonable inference that Hohman cut McDowell’s hand with a knife. We also

      acknowledge the missing knife from McDowell’s knife set was never

      discovered, but again, the evidence gives rise to a reasonable inference that

      Hohman used that knife in the commission of these offenses and then disposed

      of it. In sum, the evidence and reasonable inferences arising therefrom establish

      Hohman committed criminal confinement as a Level 3 felony and battery by

      means of a deadly weapon as a Level 5 felony.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-442| November 1, 2016   Page 5 of 8
                                       II. Double Jeopardy
[9]    Hohman argues his convictions for criminal confinement and battery by means

       of a deadly weapon violate the state constitutional prohibition against

       double jeopardy in that the same evidence was used to convict him of both

       counts. Article 1, Section 14 of the Indiana Constitution provides, “No person

       shall be put in jeopardy twice for the same offense.”


               [T]wo or more offenses are the ‘same offense’ in violation
               of Article 1, Section 14 of the Indiana Constitution, if, with
               respect to either the statutory elements of the challenged
               crimes or the actual evidence used to convict, the essential
               elements of one challenged offense also establish the essential
               elements of another challenged offense.


       Cross v. State, 15 N.E.3d 569, 571 (Ind. 2014) (alteration and emphasis in

       original) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). We

       review double jeopardy claims de novo. Strong v. State, 29 N.E.3d 760, 766

       (Ind. Ct. App. 2015).


[10]   Specifically, Hohman contends his convictions violate the actual evidence test.

       In evaluating two convictions under this test:

               [W]e examine the actual evidence presented at trial in order to
               determine whether each challenged offense was established by
               separate and distinct facts. To find a double jeopardy violation
               under this test, we must conclude that there is a reasonable
               possibility that the evidentiary facts used by the fact-finder to
               establish the essential elements of one offense may also have
               been used to establish the essential elements of a second
               challenged offense.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-442| November 1, 2016   Page 6 of 8
       Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013) (citations and internal

       quotation marks omitted). The actual evidence test is applied to all the

       elements of both offenses. Id. “In other words, under the Richardson actual

       evidence test, the Indiana Double Jeopardy Clause is not violated when the

       evidentiary facts establishing the essential elements of one offense also establish

       only one or even several, but not all, of the essential elements of a second

       offense.” Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002).


[11]   Determining whether there is a reasonable possibility the jury used the same

       evidentiary facts to reach two convictions “requires substantially more than a

       logical possibility.” Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008). “We

       evaluate the evidence from the jury’s perspective and may consider the charging

       information, jury instructions, and arguments of counsel.” Garrett, 992 N.E.2d

       at 720. Ultimately, if we find the jury “may have latched on to exactly the

       same facts for both convictions[,]” then a double jeopardy violation is

       present. Id. (citation omitted).


[12]   We see no violation of the double jeopardy clause here. The evidence

       supporting Hohman’s criminal confinement conviction is that when McDowell

       woke up, Hohman was on top of her, brandishing a knife, threatening her, and

       pinning her to the bed. McDowell could not move and did not consent to

       Hohman’s acts. The evidence supporting Hohman’s battery conviction is that

       he cut McDowell’s hand with a knife while she slept. We conclude there is not




       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-442| November 1, 2016   Page 7 of 8
       a reasonable possibility the jury relied on the same evidentiary facts to find

       Hohman guilty of both offenses. 1



                                                    Conclusion
[13]   The evidence is sufficient to sustain Hohman’s convictions of criminal

       confinement and battery by means of a deadly weapon and the two convictions

       do not violate the prohibition against double jeopardy. Accordingly, we affirm.


[14]   Affirmed.


       Mathias, J., and Brown, J., concur.




       1
         We further note, apart from the tests set forth above, Indiana courts have “long adhered to a series of rules
       of statutory construction and common law that are often described as double jeopardy, but are not governed
       by the constitutional test set forth in Richardson.” Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002). Among
       these rules is the rule that precludes a conviction and punishment for an enhancement of a crime where the
       enhancement is imposed for the very same behavior or harm as another crime for which the defendant has
       been convicted and punished. Sistrunk v. State, 36 N.E.3d 1051, 1053-54 (Ind. 2015). Here, Hohman was
       convicted of two elevated felony offenses because he committed both offenses while armed with a deadly
       weapon. Our supreme court has made clear Indiana “jurisprudence teaches that committing two or more
       separate offenses each while armed with a deadly weapon—even the same weapon—is not within the
       category of rules precluding the enhancement of each offense based on ‘the very same behavior.’” Id. at
       1054; see also Gates v. State, 759 N.E.2d 631, 633 n.2 (Ind. 2001) (“It is well established in Indiana that the use
       of a single deadly weapon during the commission of separate offenses may enhance the level of each
       offense.”). To the extent Hohman argues his convictions violate the above rule, we conclude such an
       argument fails.

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