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.

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

PATRICIA CARESS MCMATH GREGORY F. ZOELLER

Appellate Clinic Attorney General of Indiana

Indiana University McKinney School of Law

Indianapolis, Indiana RICHARD C. WEBSTER

Deputy Attorney General

DRAKE T. LAND Indianapolis, Indiana

Certified Legal Intern

IN THE

COURT OF APPEALS OF INDIANA

ANTHONY BARRON, )

)

Appellant-Defendant, )

)

vs. ) No. 49A04-1304-CR-165

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Stanley Kroh, Judge 

Cause No. 49G16-1209-FD-67604 

January 7, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
2

STATEMENT OF THE CASE

Anthony Barron (“Barron”) appeals his conviction, after a bench trial, for 

domestic battery, a Class D felony.

1

 

We affirm in part, reverse in part, and remand.

ISSUE

Whether Barron’s convictions for strangulation and domestic battery 

violate Indiana’s Double Jeopardy Clause.

FACTS

On August 31, 2012, Barron was at home with his wife, Tiffani Garret Barron 

(“Tiffani”) and their thirteen-month old son. Barron and Tiffani argued throughout the 

day. The argument became physical, and Barron grabbed Tiffani’s throat with both 

hands and squeezed her throat, making it difficult for her to breathe. At some point, 

Tiffani stated that “she just kind of went limp and that is when he let go and [she] hit the 

floor.” (Tr. 13). When Tiffani came to, she got up and ran out of the back door of the 

apartment. Barron ran after her, grabbed her arm, and dragged her back into the 

apartment. Tiffani tried to resist, but Barron dragged her back in, causing her to injure

her knee. Later that evening, Barron took Tiffani to her grandmother’s house, and Tiffani 

went to the hospital for treatment. Tiffani reported the incident to the police on 

September 3, 2012. 

On October 3, 2012, the State charged Barron with strangulation, criminal 

confinement, two counts of domestic battery, and two counts of battery, all as Class D 

 

1

Ind. Code § 35-42-2-1.3(a)(1-3)(b)(2).
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felonies.2 On January 23, 2013, Barron waived his right to a trial by a jury, and the trial 

court held a bench trial on February 19, 2013. The trial court found Barron guilty of all 

counts and entered judgment of conviction. However, before scheduling the sentencing

hearing, the judge noted that some of the convictions would be vacated for double 

jeopardy purposes. The trial court sentenced Barron on March 12, 2013. The trial court 

vacated the convictions for one count of domestic battery and the remaining battery 

counts. On the strangulation, criminal confinement, and remaining domestic battery 

charge, the trial court sentenced Barron to two (2) years, with one (1) year executed in 

community corrections work release, and one (1) year suspended to probation. 

DECISION

Barron argues that the trial court violated Indiana’s Double Jeopardy Clause by 

convicting him of strangulation and domestic battery. Specifically, he alleges that the 

State used the same evidence to obtain the convictions. In the alternative, Barron claims 

that recognized common law principles prevented the court from entering convictions on 

both charges. The State contends that Barron failed to show a reasonable possibility that 

the trial court used the same evidence to convict him of both crimes.

Our Supreme Court established the following test for deciding double jeopardy 

claims:

[T]wo or more offenses are the same offense in violation of Article I, 

Section 14 of the Indiana Constitution, 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.

 

2 One count of domestic battery and one count of battery were enhanced from a Class A misdemeanor to a 

Class D felony because of prior convictions for battery.
4

Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999) (emphasis in original). “[U]nder the 

Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated 

when the evidentiary facts establishing the essential elements of one offense also 

establish only one or several, but not all, of the essential elements of a second offense.” 

Guyton v. State, 771 N.E.2d 1141, 1142 (Ind. 2002). For a successful double jeopardy 

claim under the Richardson 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. 

Notwithstanding the phrasing of the Richardson actual evidence test, “in 

application our Supreme Court has consistently overturned convictions [on] double 

jeopardy grounds where the evidentiary facts establishing an essential element of one 

offense also establish all of the essential elements of the second challenged offense.” 

Alexander v. State, 768 N.E.2d 971, 974 (Ind. Ct. App. 2002) (emphasis in original), 

trans. denied; see also Spears v. State, 735 N.E.2d 1161 (Ind. 2000), Logan v. State, 729 

N.E.2d 125 (Ind. 2000), Hampton v. State, 719 N.E.2d 803 (Ind. 1999) (in all cases, 

convictions for robbery as a Class A felony were reduced to a class C felony for double 

jeopardy purposes because the actual evidence of serious bodily injury for robbery 

satisfied all of the elements of corresponding murder charge). 

On appeal, in determining the facts used by the fact-finder, it is appropriate for a 

reviewing court to examine the evidence presented, the charging information, arguments 
5

of counsel, and any other factors that may have guided the fact-finder in making a 

decision. See Goldsberry v. State, 821 N.E.2d 447, 459 (Ind. Ct. App. 2005). We review 

de novo whether a defendant’s convictions violate our double jeopardy provision. Id. at 

458. 

To convict Barron of strangulation as charged, the State was required to prove that 

he knowingly and in a rude, insolent, or angry manner applied pressure to the throat or 

neck of Tiffani in a manner that impeded her normal breathing or blood circulation. 

(App. 20). To convict Barron as charged of domestic battery, the State was required to 

prove that Barron, being Tiffani’s husband, knowingly touched her in a rude, insolent, or 

angry manner, resulting in bodily injury, and that the battery occurred in the physical 

presence of a child less than sixteen (16) years of age, knowing that said child was 

present and might be able to see or hear the offense. (App. 22). 

The evidence presented showed that Barron grabbed Tiffani’s neck with both 

hands and squeezed, causing her difficulty in breathing. During closing argument, the 

prosecutor stated the following: 

We did prove that the Defendant on the date in question did grab her throat, 

grab her neck causing her an inability to breathe so much so that she was 

clawing at him trying to get him to release [his] grip so she could breathe. 

The criminal confinement occurred when he dragged her from outside in 

the driveway back into the apartment. The domestic battery occurred when 

he grabbed her [neck] causing the pain to her neck as he was squeezing it. 

In addition to her neck swelling later and furthermore the injury she 

sustained is as a result of being dragged back into the house. 

(Tr. 46). It is clear from the charging information and the State’s argument that the act of 

strangulation is the basis for the domestic battery charge. We acknowledge that the 
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State’s closing argument raises some possibility that another act of battery, Barron’s 

dragging Tiffani back into their apartment, could separately support the domestic battery 

charge. However, using that evidence as such would not alleviate double jeopardy 

concerns. Barron dragging Tiffani into the apartment, causing pain to her arm and 

injuring her knee, would fulfill one element of domestic battery, and all of the elements 

of criminal confinement. Thus, it is clear that all of Barron’s convictions are not 

supported by separate evidence. 

When two or more convictions violate double jeopardy principles, the remedy, if 

possible, is to reduce either conviction to a less serious form of the same offense if doing 

so will remove the violation. Richardson, 717 N.E.2d at 54. If this cannot be 

accomplished, one of the convictions must be vacated. Id. Accordingly, we reverse and 

remand to the trial court with instructions to vacate Barron’s conviction for domestic 

battery, leaving his remaining convictions and sentence in place.

Affirmed in part, reversed in part, and remanded. 

MATHIAS, J., and BRADFORD, J., concur.