Appellate court vacates battery conviction on double jeopardy grounds

Although a man’s battery of his ex-wife resulted in injury to two different people, the Indiana Court of Appeals has vacated one of the man’s battery convictions on double jeopardy grounds.

In Joshua Thompson v. State of Indiana, 09A04-1611-CR-2582, Joshua Thompson drove to the home of his ex-wife, Brooke, to continue an ongoing argument about child support when he shoved Brooke in the presence of their 2-year-old child. Brooke fell and twisted her ankle and also accidentally caused Charlotte Wells, her boyfriend’s grandmother, to fall and fracture her tailbone and a vertebra in her back.

As a result of the incident, Thompson was charged with Level 6 felony domestic battery, Level 6 felony battery with moderate bodily injury and Level 5 felony battery of Brooke resulting in serious bodily injury to Wells. Thompson pleaded guilty without a plea agreement, and the trial court entered conviction on the Level 6 felony domestic battery and Level 5 felony battery result in serious bodily injury charges.

Though the state argued on appeal that Thompson had waived his right to challenge the validity of his convictions by pleading guilty, Indiana Court of Appeals Judge Melissa May wrote Friday that because Thompson pleaded without a plea agreement, his appeal is not prohibited under Mapp v. State, 770 N.E.2d 332, 335. Additionally, the trial court judge assured Thompson that he could bring an appeal or file a motion to correct error, May wrote.

In his appeal, Thompson argued that because he did not physically touch Wells before she fell, the facts of the Level 5 felony count do not constitute any crime for his he could be convicted. But May disagreed, writing that “nothing in (the) subsections defining the elevated versions of battery that can be found based on injuries resulting from the battery requires the injured ‘person’ to be the same ‘person’ who was touched.” Instead, the standard is that the battery “results in” injury, as it did here to Wells, she wrote.

However, the appellate court agreed with Thompson that his two convictions violated double jeopardy and the “actual evidence test.” Specifically, May wrote that because Thompson shoved Brooke once, his convictions for battery against Brooke and Wells based on the single push violate double jeopardy.

Thus, the court vacated Thompson’s Level 6 felony conviction on double jeopardy grounds and remanded the case for resentencing on only the Level 5 felony conviction.

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