Johnson v. State, 091521 INCA, 20A-CR-2119

Docket Nº20A-CR-2119
Opinion JudgeBRADFORD, CHIEF JUDGE.
Party NameDemarco Johnson, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
AttorneyATTORNEY FOR APPELLANT Tyler D. Helmond Voyles Vaiana Lukemeyer Baldwin & Webb Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
Judge PanelRobb, J., and Altice, J., concur.
Case DateSeptember 15, 2021
CourtCourt of Appeals of Indiana

Demarco Johnson, Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff.

No. 20A-CR-2119

Court of Appeals of Indiana

September 15, 2021

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

Appeal from the Vanderburgh Circuit Court The Honorable Kelli E. Fink, Magistrate Trial Court Cause No. 82C01-1910-F4-6968

ATTORNEY FOR APPELLANT Tyler D. Helmond Voyles Vaiana Lukemeyer Baldwin & Webb Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

BRADFORD, CHIEF JUDGE.

Case Summary

[¶1] Demarco Johnson was convicted of Level 4 felony sexual misconduct with a minor, Level 5 felony incest, and Class A misdemeanor attempted invasion of privacy for acts involving his biological daughter, R.J. On appeal, Johnson contends that his sexual misconduct and incest convictions violate the prohibitions against double jeopardy, claiming that both are based on the same instance of sexual conduct with the same victim. We affirm.

Facts and Procedural History

[¶2] Johnson is R.J.'s biological father. In May of 2019, Johnson moved in with R.J.'s mother, then-fourteen-year old R.J., and a few other family members. R.J. described her relationship with Johnson after he moved in as "awkward" because he would "touch [her] on [her] leg or touch [her] on [her] arm, or like just touch [her] in places that just didn't feel right." Tr. Vol. IV p. 10.

[¶3] On May 28, 2019, R.J. was in the family home with Johnson and her grandmother, who suffered from mental illness and dementia. Johnson was playing a video game in R.J.'s mother's bedroom when R.J. asked if she could play too. Johnson then "got up," closed the bedroom door, and instructed R.J. "to get on the floor." Tr. Vol. IV p. 13. Johnson became aggressive and told R.J. to "pull down [her] pants." Tr. Vol. IV p. 13. R.J. complied with Johnson's instructions "[b]ecause he told [her] to, and [she] was kind of scared." Tr. Vol. IV p. 13.

[¶4] Johnson then "gave [R.J.] oral sex," placing his mouth on and moving his mouth around the outer area of R.J.'s vagina. Tr. Vol. IV p. 13. After the oral sex, Johnson subjected R.J. to sexual intercourse. When Johnson stopped, "[h]e just got up … like nothing happened." Tr. Vol. IV p. 16. R.J. noticed that "[s]emen was coming out of" Johnson's penis as he pulled it out and got up. Tr. Vol. IV p. 16. R.J. had not wanted Johnson to subject her to either act and later reported that the sexual intercourse was "[p]ainful" and "hurt." Tr. Vol. IV p. 16.

[¶5] R.J. did not immediately report the incident to her mother because she "was too embarrassed." Tr. Vol. IV p. 19. Later that evening, R.J. told friends who had come over for a barbeque what had happened. One of the friends "ran outside and told her mom" who reported the incident to R.J.'s mother. Tr. Vol. IV p. 20. R.J.'s mother took R.J. outside and the two discussed what had happened. When Johnson noticed R.J. speaking to her mother, he "ran out and … punched [R.J.] in the back," causing a fight to break out. Tr. Vol. IV p. 20.

[¶6] R.J.'s mother immediately took R.J. to the hospital where she was examined by a sexual assault nurse examiner. DNA evidence recovered during the examination revealed that "[t]he DNA profile is at least 1 trillion times more likely if it originated from [R.J.] and Demarco Johnson than if it originated from [R.J.] and an unknown, unrelated individual." State's Ex. 1.

[¶7] Johnson was arrested on October 2, 2019. He was subsequently charged with two counts of Level 4 felony sexual misconduct with a minor and one count of Level 5 felony incest and was alleged to be a habitual offender. At some point, Johnson violated a no-contact order by contacting R.J. and her mother. The State then amended the charging information to include a charge of Class A misdemeanor attempted invasion of privacy. Following trial, the jury found Johnson guilty of one count of Level 4 felony sexual misconduct with a minor, Level 5 felony incest, and Class A misdemeanor attempted invasion of privacy. Johnson waived jury trial on the habitual offender enhancement and, following a hearing, the trial court found him to be a habitual offender. The trial court then sentenced Johnson to an aggregate twenty-four-year term of incarceration.

Discussion and Decision

[¶8] The Indiana Double Jeopardy Clause provides that "No person shall be put in jeopardy twice for the same offense." Ind. Const. art. I, § 14. It, along with its federal counterpart, "stands as a bedrock principle of our fundamental law." Wadle v. State, 151 N.E.3d 227, 238 (Ind. 2020). "The protective...

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