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.
ATTORNEY FOR APPELLANT James A. Hanson Fort Wayne, Indiana ATTORNEY FOR APPELLEE Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana
I N T H E COURT OF APPEALS OF INDIANA
Mickey Davis, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff. May 28, 2020 Court of Appeals Case No. 19A-CR-2818 Appeal from the Allen Superior Court The Honorable David M. Zent, Judge Trial Court Cause No. 02D06-1905-F3-30
Bradford, Chief Judge. Case Summary
 In October of 2019, Mickey Davis was convicted of Level 3 felony criminal
confinement, Level 5 felony battery, and Level 5 felony domestic battery and
ultimately sentenced to sixteen years of incarceration. On appeal, Davis
contends that (1) the trial court failed to find that the State had engaged in
prosecutorial misconduct or to provide the jury with an admonishment
regarding the alleged misconduct, and (2) his criminal-confinement and battery
convictions violate Indiana constitutional prohibitions against double jeopardy.
Because we disagree, we affirm.
Facts and Procedural History
 On April 26, 2019, Davis arrived at the residence of Jaleesa Jackson, his
girlfriend at the time. Shortly thereafter, the two began arguing. Jackson was
standing in her bathroom and attempted to leave, but Davis would not allow it.
Once Davis allowed Jackson to exit the bathroom, the argument continued.
After Davis refused to leave the residence, Jackson attempted to leave but was
stopped by Davis, who locked the security door and blocked it with his body.
Davis pushed Jackson in the face to force her away from the door. Noticing
that Davis was becoming more agitated, Jackson armed herself with a steak
knife, but Davis grabbed it from her and threw it to the ground. Jackson
grabbed her phone and attempted to call 911, but Davis knocked it out of her
hand. At that point, Davis began punching Jackson. Jackson fell to the floor
and curled into a ball, attempting to protect herself. Davis kicked Jackson several times and continued punching her once he positioned himself on top of
her. After Davis was on top of Jackson, he placed his hands around her throat
and choked her until she lost consciousness. As Jackson regained
consciousness, Davis began slamming her head against the floor.
 -door neighbor Jada Clark heard noise
lark went to
residence and observed Davis hitting Jackson while on top of her. As
she pounded on the door, Clark told Davis to stop and said that she was calling
the police. Realizing she had forgotten her phone, Clark ran back to her
residence, retrieved her phone, and called 911. Once Clark returned to
residence, Davis shoved past her and fled the scene in his vehicle.
When Detective Brent Roddy arrived on the scene, he observed
a large amount of blood on the sidewalk and the steps leading up to the apartment, on the handrail, on the security door, just inside of the door. When you proceed into the apartment it opens up into a living room and all of the furniture was moved around as if there had been an altercation. There was blood literally victim was still alive.
Tr. Vol. III p. 167. After law enforcement arrived, Jackson was transported to
the hospital, where she recounted the details of the altercation to law
enforcement and medical personnel. Jackson had a fully swollen left eye, a
partially swollen right eye, and a laceration on her nose; both of her lips were
split open; and she had a tremendous amount of blood covering her body.  On May 3, 2019, the State charged Davis with Level 3 felony criminal
confinement, Level 5 felony battery, Level 5 felony domestic battery, Level 6
felony strangulation, and Class A misdemeanor interference with the reporting
of a crime. On October 7, 2019, the trial court held a status hearing, at which it
appointed Jackson a public defender, given the possibility that she may testify
in contradiction to the statements she had previously made to police. That
hearing, in relevant parts, proceeded as follows:
[STATE]: This is one where we put it out for status because the victim in this case is on probation for battery with a deadly weapon. This is one we want her to have an attorney to be advised of her consequences because it is my understanding, and has been my understanding since [Defense Counsel] was in the case that victim is going to recant and her recantation will be inconsistent with what she told the police. Both of them cannot be true. So I believe [the Chief Public Defender] spoke with her and advised her, gave her some sound legal advice. I just wanted to make sure that that was the case.
[CHIEF PUBLIC DEFENDER]: I did give her some legal r know that the
prosecutor is threatening her with having her probation violation [sic] if what she says is different than what she said. My advice to
THE COURT: Sure. Of course.
[CHIEF PUBLIC DEFENDER]: And if the truth is not what it was previously said she may go to jail for that. She does want to have a public defender?
THE COURT: She does? [CHIEF PUBLIC DEFENDER]: She does want a public defender
THE COURT: Okay.
[CHIEF PUBLIC DEFENDER]: - before she makes a decision about what to say um but I have given her that bit of advice, know the specifics enough to do anything else today, but I have told her that there will be a consequence for her testifying next week, but
[CHIEF PUBLIC DEFENDER]: Well, no. If she does tell the
statement if what she tells as truth next week is different than
Tr. Vol. II pp. 10 11.
 On October 15 and 16, 2019, a jury trial was held. On the first day of trial, the
State reported to the court that Jackson had been arrested over the weekend for
operating a vehicle while intoxicated and was being held in the county jail.
Jackson was ultimately transported to the courthouse and testified at trial.
Jackson testified that due to intoxication, she could not recall the events that
took place the night she was attacked or talking to police or medical personnel.
Jackson, however, did testify that on the evening of the attack, someone had
become physical with her and that Davis had caused her injuries. Jackson also
testified that there was a time when she had told others that Davis had not
caused her injuries, believing that it was none of their business. After the State
rested, Davis, through counsel, requested that the trial court give the jury a stipulation or statement essentially a threat of potentially revoking her probation. Tr. Vol.
IV p. 113. , the following colloquy between the parties
and the trial court took place:
you to appoint counsel to Ms. Jackson because she had rights
that she wanted they wanted to make sure that her rights were protected regardless of what decision that she made. When I spoke with Caryn Garton, we talked about she what Caryn
of the consequences of everything, bu relates to the OWI, I did not interfere with that at all. No one I
order to transport. She was not given any benefits or privileges or
anything at all for her testimony. I mean if Mr. Hanson would remember, probation was closed on Monday. So, therefore, they knowledge of to file a petition. So, I think she probably had a 2:00 probation appointment today. I anticipate at numerous instances where someone who has been on probation
and their probation officer d somebody has to be taken back in custody. In fact, there are
and then we have to then tell the probation officer to file petition
to revoke their bond.
THE COURT: Looking at Odyssey, a petition to revoke her bond was filed at 11:02 a.m. today.
[THE STATE]: So public access site. 1
[THE STATE]: Thank you. So, um, in saying that, I personally affronted by that cause it sounds like I did something
that was unethical. Um, number two, um, if we talk about the which is her battery with a deadly weapon. And I believe that
would be substantially more prejudicial than probative. So, therefore, I believe that that information should not come in front of the Jury.
THE COURT: Do you have any information there was some I
[DEFENSE COUNSEL]: Well
THE COURT: Unkind or influence that the State used?
[DEFENSE COUNSEL]: not accusing [the State] of simply stating that the circumstances are such that the witness, as
she sat there and testified, knew she has this sort of sword of Damocles over her head. She sat down with an attorney and been advised specifically on the pros and cons of what she agreement, Ms. Garton gave good advice and told her you gotta
if - you tell the truth this way, and if you tell the truth this way, whatever the truth is, she mapped out for her the basic scenarios that she was facing and told her the legal consequences of those scenarios, gave her good 1
There was discussion by defense counsel as to why Jackson was not held on a probation violation following her arrest for OWI. As the trial court pointed out, the State eventually filed a petition to revoke her bond for violating the terms of her probation. problem with I I guar (sic) I have no information that any promise was made to her.
THE COURT: So, you want me to tell the Jury that her lawyer told her to tell the truth and there was an accident and she was allowed out of jail?
consequences so when she testifies, she testifies, uh, based on her
knowledge of what could be the consequences of her testimony
[THE STATE]: Your Honor, I specifically
[DEFENSE COUNSEL]: - in light of her probation, but.
[THE STATE]: I specifically asked Ms. Garton what advice she gave her. And she said that I told her to tell the truth. I explained to her that it would not be okay be okay for you to get on the stand and say that he did it. You
have to tell the truth. She was very clear. She went through everything and talked about very good advice. She said tell the truth no matter what. She told her to tell the truth, so.
Tr. Vol. IV pp. 117 21. The trial court declined to admonish the
 At the conclusion of trial, the jury found Davis guilty of Level 3 felony criminal
confinement, Level 5 felony battery, and Level 5 felony domestic battery. On
November 5, 2019, the trial court sentenced Davis to sixteen years for the
criminal-confinement conviction, merged the battery conviction with the
criminal-confinement conviction, and vacated the domestic battery conviction. Discussion and Decision
I. Prosecutorial Misconduct
 Davis contends that the trial court failed to prevent or remedy the prosecutorial
misconduct which occurred when the State allegedly threatened Jackson with a
probation violation, which ultimately deprived Davis of his right to call
witnesses pursuant to the Sixth Amendment of the United States Constitution.
We review a claim of prosecutorial misconduct properly raised in the trial court
misconduct, under all of the circumstances, placed the defendant in a position
of grave peril Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). 2
Regarding the Sixth Amendment
of the United States Constitution,
[a] fundamental element of due process of law is the right of an accused to present witnesses in his own defense. Those witnesses must be free to testify without fear of governmental retaliation. While a trial court judge may advise a witness of his right to avoid self-incrimination, he may not do so in a threatening or browbeating man during a personal interview with a witness improperly denies the
defendant the use of that testimony regardless of the
2 There is some argument that Davis failed to preserve his prosecutorial-misconduct claim for appellate review. See id. ( at the time the alleged misconduct occurs request an admonishment to the jury, and if further relief is desired, move for a laim on the merits. intentions. A prosecutor may not prevent nor discourage a defense witness from testifying.
Collins v. State, 822 N.E.2d 214, 220 (Ind. Ct. App. 2005), trans. denied.
 Davis bases his argument on
osecutor is threatening her with having her
p. 10. Not only is this merely characterization of the issue, but it also stands as an outlier to the other
evidence contained in the record, which indicates that the State sought only to
have Jackson testify truthfully and that she be advised of the legal consequences
if she chose not to. At the October 7, 2019, status hearing, the State informed
the trial court that it believed Jackson was going to recant the prior statements
she made given that Davis had attempted to call Jackson 3079 times from jail while
awaiting trial, and of those calls, 696 had connected. During one call, Davis
had Ex. 43. Moreover, Jackson testified at trial that she had been telling others that
Davis had not caused her injuries. Given its belief, the State requested that the
trial court provide Jackson with counsel to advise her of the perils of testifying
untruthfully, which was also reasonable given that untruthful testimony could
have resulted in criminal charges for Jackson, i.e., perjury or false reporting,
which could result in a revocation of her probation. At trial, the State again
reiterated that it only wanted Jackson to testify truthfully and sought to have counsel appointed to rights were protected
regardless of what decision that she made. 18. The trial
court made a similar observation, stating that the pressure on [Jackson] was to
We believe that the
amounted to nothing more than an attempt to
warn Jackson that there could be consequences if she did not testify truthfully,
which we have previously concluded does not amount to prosecutorial
misconduct. See Greer v. State, 115 N.E.3d 1287, 1291 (Ind. Ct. App. 2018)
( the witness that there
could be consequences for lying on the stand and that the prosecutor did not
explicitly threaten [the witness] with prosecution and repeatedly reminded him
that he would reminded him that he would be in trouble only if he did not tell
the truth, not
 In support of his argument, Davis directs our attention to Collins. In Collins,
during a pretrial interview, the witness informed the prosecutor that she would
testify that the contraband belonged to her and not the defendant. 822 N.E.2d
at 220. The prosecutor told the witness that if she testified as such, he would
Id. After the witness
refused to testify, the defendant moved for a mistrial, and the prosecutor
admitted to telling the witness he would have had her arrested, stating
I and Detective Tammy Kunz on October 21 st visited [the witness,] who very edgily told me essentially the conjured and coach[ed] took responsibility for all these actions, then she would only get she would at the conclusion of what she told me, that if she said those things
under oath, on this witness stand, that I would have her arrested. told me. And that is possession of cocaine with a firearm which is a Felony C as well as possession of cocaine as a
Felony D and possession of marijuana as a Misdemeanor A. That is what I to
Id. at 221. Amendment but that it was harmless error. Id. at 223.
 That said, Collins is easily distinguished from the present matter. Here, there is
no indication in the record that the State ever met with Jackson and told her
that if her testimony differed from the statements she made to police, she would
be arrested and criminally charged. Rather, knowing that Jackson was on
probation, the State requested the trial court to provide Jackson with counsel to
advise her of the possible consequences which could result if she testified
untruthfully or made a false report. In Collins, the State directly threatened the
witness with future legal peril if she essentially took responsibility for the
; here, the State was attempting to provide the witness with
sound legal advice in order to avoid any future legal peril. Davis has failed to
establish that any prosecutorial misconduct occurred.
 Even assuming, arguendo, that prosecutorial misconduct had occurred, it could
only be considered harmless error. The United States Supreme Court has held
Brecht v. Abrahamson, 507 U.S. 619, 630 (1993) (internal quotations omitted). Errors under the Sixth Amendment are subject to harmless error analysis.
Collins, 822 N.E.2d at substantial likelihood the error contributed to the verdict, or, in other words,
that the error was Id. (internal quotations omitted).
 Law enforcement and medical personnel testified regarding their conversations
with Jackson, during which she identified Davis as her attacker and recounted
the details of the attack. Law enforcement also testified to observing blood
throughout the residence and furniture in disarray, indicating there had been an
altercation, and locating a steak knife on the floor. Moreover,
Davis as the attacker.
Detective Roddy also testified regarding his conversation with Clark, during
which she informed him that she had witnessed Davis punching and slapping
Jackson. Given this overwhelming evidence of guilt, any misconduct that
occurred was harmless error.
II. Double Jeopardy
 Davis contends that his convictions for Level 3 felony criminal confinement
and Level 5 felony battery violate the Double Jeopardy Clause of the Indiana
Constitution, for the same offense. Garret v. State, 992 N.E.2d 710, 719 (Ind. 2013). In Richardson v. State, 717 N.E.2d 32 (Ind. 1999) this Court concluded that two or more offenses are the same offense in violation of article 1, section 14 if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to obtain convictions, the essential elements of one challenged offense also establish the essential elements of another challenged offense. Under the actual evidence test, we examine the actual evidence presented at trial in order to determine whether each challenged offense was established by separate and distinct facts. To find a double jeopardy violation under this test, we must conclude that there is 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. The actual evidence test is applied to all the elements of both offenses. In violated when the evidentiary facts establishing the essential
elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense.
Id. assessment of whether the [fact finder] may have latched on to exactly the same
facts for both convictions. Id. at 720 (internal quotations omitted). We
two convictions violate the Double Jeopardy Clause is a pure question of law,
which we review de novo. Grabarczyk v. State, 772 N.E.2d 428, 432 (Ind. Ct.
 To convict Davis of Level 3 felony criminal confinement, the State was
required to prove that Davis knowingly or intentionally confined Jackson without her consent, resulting in serious bodily injury to Jackson. Ind. Code §
35-42-3-3(a), (b)(3)(B). To convict Davis of Level 5 felony battery, the State was
required to prove that Davis knowingly or intentionally touched Jackson in a
rude, insolent, or angry manner, resulting in serious bodily injury. Ind. Code §
35-42-2-1(c)(1), (g)(1). Serious bodily injury means bodily injury that creates a
substantial risk of death or that causes serious permanent disfigurement,
unconsciousness, extreme pain, permanent or protracted loss or impairment of
the function of a bodily member or organ, or loss of a fetus. Ind. Code § 35-
 Regarding criminal confinement, the record indicates that Davis locked the
door positioned himself on top of her, and repeatedly
beat her, which resulted in her sustaining two swollen eyes, split lips, and a
laceration on her nose, which is now permanently scarred. The record also
indicates that Jackson lost large amounts of blood and was hysterical and in
pain when medical personnel arrived. Regarding battery, the record indicates
that while on top of Jackson, Davis strangled her until she lost consciousness.
also presented these distinct facts to
support each conviction as follows:
So to be able to find him guilty of the Criminal Confinement, the State will submit to you that when he was on top of her hitting Confinement resulting in serious bodily injury. For the Domestic
Battery resulting in serious bodily injury, and the Battery for that matter as well, and the Strangulation. When he strangled her and caused her to lose [consciousness,] that will support those charges.
Tr. Vol. IV p. 136. Davis has failed to persuade us that there is a reasonable
possibility that the jury used the same evidentiary facts to convict him of both
criminal confinement and battery and therefore his convictions do not violate
the Double Jeopardy Clause under the Indiana Constitution.
 The judgment of the trial court is affirmed.
Baker, J., and Pyle, J., concur.