Troutner v. State

Decision Date18 July 2011
Docket NumberNo. 91A04–1012–CR–796.,91A04–1012–CR–796.
Citation951 N.E.2d 603
PartiesDonald TROUTNER, Appellant–Defendant,v.STATE of Indiana, Appellee–Plaintiff.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Steven Knecht, Vonderheide & Knecht, P.C., Lafayette, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Donald Troutner appeals his convictions for robbery, as a Class B felony, and battery, as a Class A misdemeanor, following a jury trial. Troutner raises two issues for our review, namely:

1. Whether the same evidence that the State used to support Troutner's conviction for robbery was also used to support his conviction for battery.

2. Whether the trial court abused its discretion when it limited the testimony of Troutner's niece.

We hold that the State presented the same evidence to support both of Troutner's convictions and, therefore, we vacate the lesser conviction for battery. We also hold that the trial court erred when it limited the testimony of Troutner's niece. Nonetheless, because that error was harmless, we affirm Troutner's conviction for robbery.

FACTS AND PROCEDURAL HISTORY

In the early evening of September 1, 2010, James Philo walked across the street from his residence in Monon to the residence of William and Debra Hubbard, where Philo's son was visiting. Philo's son left soon afterward, but Philo stayed and had drinks with the Hubbards, Troutner, and Krista Hubbard. Krista is the twenty-two-year-old daughter of William and Debra, and Troutner is Debra's brother.

After some time, Philo offered to buy more beer, and Krista drove him and Troutner to a liquor store. They purchased some alcohol and returned to the Hubbards' residence. And when they ran out of beer a second time, Philo again offered to purchase more and Krista drove Philo and Troutner back to the liquor store.

En route, Philo had Krista stop at his residence so he could get some cash. Philo placed $350 in cash in his wallet and the trio returned to the liquor store and purchased some more alcohol. When they returned to the car, Philo sat in the front passenger seat of the two-door car and Troutner sat behind him.

Once back in the car, Troutner asked Krista to drive them “out to the country” to pick up Troutner's girlfriend. Transcript at 88. About three miles outside of Monon, Troutner asked Krista to pull the car over so he could “relieve himself.” Appellant's Br. at 6. Krista pulled over, and Philo leaned his seat forward for Troutner to exit. Upon exiting, Troutner immediately began beating his fists against Philo's head and face. Troutner began yelling, “Give me your money,” and “Give me your money or I will kill you,” while Krista exited the vehicle. Transcript at 89. Philo had his arms over his face to block the blows, but he was knocked onto his side across the front seats. Troutner then reached into Philo's front pants pocket, but Philo told him that there was nothing there and that he kept his money in his wallet. Troutner then removed Philo's wallet from Philo's back pants pocket, and Philo crawled out of the driver's side door of the vehicle. Krista and Troutner drove away with Philo lying in the road.

Philo immediately called 911 and reported the incident, and nearby officers responded promptly. Within minutes, Krista and Troutner had been stopped at a nearby gas station by several officers. Troutner told the officers that they were in town for cigarettes and that the $334 cash on his person had been given to him by his mother. Troutner further stated that the fresh cuts and abrasions to his hands were from his sister's dog, which had bitten him. Officers also observed blood on Troutner's shirt and jeans. Krista denied ever having Philo in her car or having driven on the road where Philo had been abandoned. Officers observed blood on Krista's shirt.

On September 3, the State charged Troutner with robbery, as a Class B felony. The State later added a charge for battery, as a Class C felony. The trial court held Troutner's jury trial on November 16–17. The State called Philo and several of the officers to testify. The State also called Krista as a witness, and she testified that Philo was with them on September 1, that she pulled the car over for Troutner to urinate, and that when she did so she saw Troutner hit Philo. She then got out of the car and helped Philo crawl out through the driver's side door. But she did not recall seeing Troutner take any money from Philo or talking to Troutner about the incident afterward.

On cross examination, Krista testified as follows:

Q. [Wa]s there any conversation going on [in the car] from the point you le [ft] the liquor store to head out to the country?

A. The music was on, Uncle Don [Troutner] and James Philo, they were whispering to theirselves [sic] on the other side of the car by the window. I didn't hear what they were talking about. I didn't even think anything of it.

Q. And Mr. Troutner was in the back seat directly behind from [sic] Mr. Philo, correct?

A. Yes.

Q. It was the passenger's side door/window where they were talking?

A. Yep.

Q. How, if you recall, how loud was your radio set that night?

A. Medium.

Q. Loud enough where you couldn't hear—

A. You could hear each other talking if they had inside voices, but not loud enough where you had to yell.

Q. And you couldn't hear any of their conversation?

A. No.

Transcript at 150.

Once the attorneys had concluded their examination of Krista, a juror proffered the following question to her: “Krista, did you hear the defendant say anything to [Philo] or [Philo] say anything to the defendant during the fight?” Id. at 159. Krista said that she did, and the court immediately called a recess. Once the jury had exited the courtroom, the court asked Krista about the contents of those statements. Krista responded that she “heard [Troutner] call James Philo a child molester” while Troutner was punching Philo. Id. at 160. Krista also said she heard Troutner say, “You're not going to be able to have my niece [Krista]. You're a child molester.” Id. at 161. The State objected to the admission of those statements on the grounds that they were hearsay and “obviously prejudicial.” Id. The trial court agreed and excluded the testimony.

After the jury had returned, Troutner testified in his own defense. According to Troutner, during the trip into the country, Philo turned to him and started talking about [s]ex ... [a]nd money ... [and m]y niece.” Id. at 273. In the course of those statements, Philo handed the $334 to Troutner, and Troutner accepted it. Troutner then asked Krista to pull the car over, and Troutner began hitting Philo and telling him “that he's not buying my niece.” Id. at 275. Troutner then testified that he called Philo “a molester, a child molester ... because ... Krista's my niece.... To me, she's still a child.” Id. at 276. Troutner reiterated those points later in his testimony, stating that Philo asked him, “Can he get her,” while handing Troutner the money. Id. at 293. And Troutner stated that he had accepted the money despite Philo's comments because he was drunk. Id. at 298.

Following Troutner's testimony, Troutner's counsel called Krista as a witness. The State objected, and the trial court sustained the objection. Troutner then made an offer of proof, in which Krista stated that, during the altercation, she had heard Troutner call Philo a child molester and had heard Troutner make a comment to Philo “about buying his niece.” Id. at 321.

Following closing arguments, the jury found Troutner guilty of robbery, as a Class B felony, and battery, as a Class A misdemeanor. The court entered its judgment of convictions and sentences accordingly. This appeal ensued.

DISCUSSION AND DECISION
Issue One: Double Jeopardy

Troutner first contends that the State supported each of his two convictions with the same evidence, in violation of Indiana's Double Jeopardy Clause. See Richardson v. State, 717 N.E.2d 32 (Ind.1999). As our supreme court has explained:

In Richardson, we reviewed the history of the Indiana Constitution's Double Jeopardy Clause to ascertain and articulate a single comprehensive rule synthesizing and superseding previous formulations and exceptions. We explained that two offenses are the “same offense” in violation of the Indiana Double Jeopardy Clause 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.”

[ Richardson, 717 N.E.2d at 49]

. In the present case the defendant claims a violation of the Indiana Double Jeopardy Clause not under the statutory elements test but under the actual evidence test. To show that two challenged offenses constitute the same offense under the actual evidence test, “a defendant must demonstrate 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.” Id. at 53.

Application of the actual evidence test requires the reviewing court to identify the essential elements of each of the challenged crimes and to evaluate the evidence from the jury's perspective, considering where relevant the jury instructions, argument of counsel, and other factors that may have guided the jury's determination. Richardson, 717 N.E.2d at 54 n. 48; see, e.g., Burnett v. State, 736 N.E.2d 259, 262–63 (Ind.2000). The Richardson actual evidence test was carefully and deliberately crafted to provide a general formulation for the resolution of all actual evidence test claims. The language expressing the actual evidence test explicitly requires evaluation of whether the evidentiary facts used to establish the essential elements of one offense...

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