COA rejects jury instruction, double jeopardy challenges to domestic battery, strangulation convictions

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Neither a claim of fundamental error nor a claim of double jeopardy undermined a man’s domestic battery and strangulation convictions, the Court of Appeals of Indiana ruled Wednesday.

In Curtis Baker v. State of Indiana, 23A-CR-1340, appellant-defendant Curtis Baker was in a “friends with benefits type of relationship” with a woman named Ann Humphrey. That relationship continued after Baker got married.

In 2022, Humphrey told Baker that she had tested positive for a sexually transmitted disease.

On Aug. 27 of that year, Humphrey and Baker were in a parking lot at night when, according to Humphrey, “It was like a light switch went off and [Baker] just changed.” Baker pushed Humphrey against the car, punched her twice and choked her, telling her that his own STD test had come back positive.

Humphrey briefly broke free of Baker and began to run away, but he caught up to her, threw her to the ground and again began to choke her. Humphrey’s eyes began to roll into the back of her head, and she could not see anything.

Baker eventually relented and Humphrey was able to get away. Baker’s wife came to pick him up, but he was still angry and told his wife that “he was going to burn down (Humphrey’s) house.”

Baker then drove to Humphrey’s house and told her to apologize to her kids because he was going to set the house on fire. He then drove away.

Baker was subsequently charged with Level 6 felony counts of domestic battery and strangulation and was alleged to be a habitual offender.

At the close of his trial in May 2023, the Cass Superior Court instructed the jury, “Do not sign any Verdict form for which there is not unanimous agreement.” Baker did not object or offer a different instruction.

The jury then found Baker guilty as charged, and he was sentenced to seven years in the Department of Correction.

Baker appealed, first arguing that the trial court should have given a more detailed instruction on unanimity.

He relied on Baker v. State, 948 N.E.2d 1169 (Ind. 2011), reh’g denied, in which the Indiana Supreme Court held that where “evidence is presented of a greater number of separate criminal offenses than the defendant is charged with,” and where the state doesn’t “designate a specific act (or acts) on which it relies,” the jury “should be instructed that in order to convict the defendant they must either unanimously agree that the defendant committed the same act or acts or that the defendant committed all of the acts described by the victim and included within the time period charged.”

“When our Supreme Court, in its Baker decision, used the phrase ‘a greater number of separate criminal offenses than the defendant is charged with,’ it was referring to situations where evidence is presented of entirely separate criminal incidents, each of which could be used to support a conviction,” Judge Nancy Vaidik wrote. “… Here, on the other hand, the State presented evidence of a single continuous attack, albeit an attack that included multiple acts of violence — Baker punching Humphrey, throwing her to the ground, pinning her to the ground, and choking her twice.

“… In this case, the State charged Baker with two offenses — domestic battery and strangulation — and it presented evidence of a single continuous attack that included both offenses,” Vaidik wrote. “Therefore, the lack of a specific unanimity instruction wasn’t error, let alone fundamental error.”

Baker also argued that his convictions are double jeopardy under Wadle v. State, 151 N.E.3d 227 (Ind. 2020).

The appellate court rejected that argument, finding that the second step of the Wadle test — determining whether one offense is included in the other — is not satisfied.

That’s because the domestic battery and strangulation statutes each include an element that the other does not, and because the strangulation charge alleges Baker applied pressure to Humphrey’s throat or neck, while the domestic battery charge does not allege a specific act of battery.

“Because neither offense is included in the other, either inherently or as charged, we don’t reach the third step of the Wadle test,” Vaidik concluded.

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