Aggravated battery conviction overturned on double jeopardy grounds

A man who broke into his ex-girlfriend’s home and shot the woman and her daughter will have his aggravated battery conviction and related sentence vacated on double jeopardy grounds. Like others before it, the case raised questions about the application of the Indiana Supreme Court’s new substantive double jeopardy analyses.

In Raymond O. Demby, Jr. v. State of Indiana, 20A-CR-1012,  Raymond Demby broke into the home of his former girlfriend, Courtney Madison, and her adult daughter, Kiara Jones. When Madison heard the noise, she called emergency services and retrieved a firearm to investigate, finding Demby in her home wielding a hammer.

An argument ensued and soon became physical, and Madison dropped the gun. Demby hit her with the hammer so hard that she lost consciousness, so Jones attempted to take the hammer away. Madison regained consciousness and pushed the two outside, where Demby struck Jones.

Upon returning inside, Demby found the gun. Meanwhile, Jones had fled to a neighbor’s house, and Madison tried to follow. Demby, however, caught up to Madison and fired at her three times. He then shot Jones in the legs before taking a car belonging to Madison’s mother and fleeing.

After a police chase, Demby was arrested and charged with numerous felonies, including burglary, aggravated battery, domestic battery, battery, invasion of privacy, auto theft, resisting law enforcement and attempted murder. The state also sought a firearm sentencing enhancement.

Demby raised an insanity defense, but a jury found him guilty but mentally ill on all counts. He was also convicted of the firearm enhancement, which applied to the aggravated battery conviction.

The Allen Superior Court vacated the domestic battery conviction and reduced the burglary conviction to a Level 3 felony. Demby was then sentenced to an aggregate of 84 years.

On appeal, Demby argued his convictions for attempted murder, aggravated battery and burglary violated the prohibition against substantive double jeopardy. He was sentenced prior to the Indiana Supreme Court handing down new guidance on substantive double jeopardy in Wadle v. State, 151 N.E.3d 227, 237 (Ind. 2020), and Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020), but because his appeal was brief after those decisions were issued, the Indiana Court of Appeals proceeded under their precedent.

Looking first to the burglary conviction under Wadle, the COA held that the implicated statute does not allow for multiple punishment, and burglary is not inherently included in either attempted murder or aggravated battery. Thus, Demby’s burglary conviction did not violate the prohibition against double jeopardy.

The implicated statutes related to attempted murder and aggravated battery also do not allow for multiple punishment, the appellate panel continued, and aggravated battery is not inherently included in attempted murder. However, aggravated battery was included in attempted murder as charged in this case, making Demby’s conviction and sentence for aggravated battery a violation of Indiana Code § 35-38-1-6.

“In so finding, we rely on the fact that the State’s firearm enhancement filing required proof of the use of a firearm in the commission of aggravated battery,” Judge Elizabeth Tavitas wrote. “We further rely on the State’s eleventh hour amendment of the attempted murder charging document, including the factual allegation, ‘… by hitting said Courtney Madison with a hammer or shooting her with a firearm.’

“To find that, as charged, Demby utilized the firearm in attempted murder, one would necessarily have to find that all of the material elements of aggravated battery, as the State charged it here, were met,” Tavitas continued. “Thus, the aggravated battery count was a lesser included offense of the attempted murder count pursuant to Indiana Code Section 35-31.5-2-168.”

Thus, Demby’s aggravated battery conviction and sentence to nine years, with a 20-year enhancement, for the use of a firearm, must be vacated on remand, the panel held. However, Tavitas went on to address “an inevitable difficulty with the Wadle analytical framework.”

Tavitas quoted a recent concurring opinion from Judge Nancy Vaidik, who wrote of Powell and Wadle in 2020, “It is attractive, yet unrealistic, to believe that these two tests can be superimposed on any future contingencies and provide the answer to all our double-jeopardy queries. Neither test may provide the perfect fit. Instead of trying to cram each possibility into the Wadle bucket or the Powell bucket, we should be guided by the principles expounded in the two cases.”

Writing about the instant case, Tavitas said, “This is one of those situations.” She added in a footnote, “Demby benefitted from the State’s amendment of the attempted murder charge to include a factual allegation with respect to the firearm. … Though Wadle and Powell establish a newly-wrong analytical frameworks, the core principle of the prohibition against substantive double jeopardy is undisturbed. Here, had the State simply left its charging instrument vague, Wadle’s formal, stepwise process could very easily have contravened that principle.”

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