Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-442| November 1, 2016 Page 1 of 8

MEMORANDUM DECISION

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

Ellen M. O’Connor

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Paula J. Beller

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Damon Hohman,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 1, 2016

Court of Appeals Case No.

49A02-1603-CR-442

Appeal from the Marion Superior 

Court

The Honorable Sheila A. Carlisle, 

Judge

Trial Court Cause No.

49G03-1507-F1-24667

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-442| November 1, 2016 Page 2 of 8

Case Summary and Issues

[1] Following a jury trial, Damon Hohman was convicted of, inter alia, criminal 

confinement as a Level 3 felony and battery by means of a deadly weapon as a 

Level 5 felony. On appeal, Hohman challenges his convictions for criminal 

confinement and battery by means of a deadly weapon, raising two issues for 

our review: (1) whether the evidence is sufficient to sustain these convictions, 

and (2) whether these convictions violate the prohibition against double 

jeopardy. Concluding the evidence is sufficient and Hohman’s convictions do 

not violate the prohibition against double jeopardy, we affirm.

Facts and Procedural History

[2] In 2011, Hohman and Ann McDowell began dating and eventually had one

child together. In May 2014, the couple ended their relationship. By December 

2014, McDowell was dating Marlan King. On December 9, 2014, King and 

McDowell went on a date and did not return to McDowell’s home until two in 

the morning. Not long after they arrived, they began arguing, so King returned 

to his home and McDowell went to bed.

[3] At some point after McDowell fell asleep, she awoke to a man on top of her 

inserting his penis inside of her. McDowell initially thought the man was King 

but then opened her eyes and realized it was Hohman. Hohman had pinned 

her to the bed so she could not move and threatened her with a knife she 

recognized from a set of knives from her kitchen. When McDowell put her 
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hands to her face and began crying, she discovered she had been cut on her 

hand while sleeping and was bleeding. Hohman said he had to cut her because 

she “wouldn’t stop moving.” Transcript at 416. 

[4] Eventually, Hohman allowed McDowell to enter the bathroom to get dressed. 

The two began arguing. Hohman then slapped McDowell in the face and 

ordered her to return to the bed. McDowell slammed the bathroom door shut, 

escaped through the second-floor bathroom window, and ran to a neighbor’s 

house. Hohman fled the scene. The police were called and Hohman was later 

arrested. A search of McDowell’s home found a knife from her knife set was 

missing, but the knife used in the attack was never recovered.

[5] The State charged Hohman with rape as a Level 1 felony, burglary as a Level 2 

felony, criminal confinement as a Level 3 felony, battery by means of a deadly 

weapon as a Level 5 felony, domestic battery as a Level 6 felony, battery 

resulting in bodily injury as a Class A misdemeanor, and invasion of privacy as 

a Class A misdemeanor. In August 2015, a jury found Hohman not guilty of 

burglary and guilty of domestic battery, Class A misdemeanor battery, and 

invasion of privacy. The jury reached an impasse as to the rape, criminal 

confinement, and battery by means of a deadly weapon charges, and a second 

jury trial was held in January 2016 as to those counts. The jury found Hohman 

not guilty of rape, but guilty of criminal confinement and battery by means of a 

deadly weapon. Hohman now appeals only his convictions for criminal 

confinement and battery by means of a deadly weapon. 
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Discussion and Decision

I. Sufficiency of the Evidence

A. Standard of Review

[6] When reviewing the sufficiency of the evidence to support a conviction, we 

consider only the probative evidence and reasonable inferences supporting the 

judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We neither reweigh 

the evidence nor reassess the credibility of witnesses. Id. We will affirm a 

conviction unless “no reasonable fact-finder could find the elements of the 

crime proven beyond a reasonable doubt.” Id. at 146-47 (citation omitted).

B. Use of a Deadly Weapon

[7] Hohman argues the evidence is insufficient to support his convictions for 

criminal confinement and battery by means of a deadly weapon. The State 

charged Hohman with criminal confinement as a Level 3 felony, alleging he 

committed the offense while armed with a deadly weapon. Indiana Code 

section 35-42-3-3(a) states a person who knowingly or intentionally confines 

another person without the other person’s consent commits criminal 

confinement as a Level 6 felony. The crime is elevated to a Level 3 felony if the 

offense is committed while armed with a deadly weapon. Ind. Code § 35-42-3-

3(b)(2)(A). The State also charged Hohman with battery by means of a deadly 

weapon as a Level 5 felony. Indiana Code section 35-42-2-1(c) states a person 

who knowingly or intentionally touches another person in a rude, insolent, or 

angry manner commits battery as a Class B misdemeanor. The crime is 
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elevated to a Level 5 felony if the offense is committed with a deadly weapon. 

Ind. Code § 35-42-2-1(g)(2). 

[8] The crux of Hohman’s argument is that, because law enforcement did not find 

the knife, coupled with his contention McDowell’s testimony is unreliable, 

there is a reasonable possibility no knife was actually used in the commission of 

these crimes. Such an argument invites us to reweigh the evidence and reassess 

witness credibility, which we will not do. Drane, 867 N.E.2d at 146. The 

evidence establishes McDowell awoke to Hohman on top of her, pinning her to 

the bed so she was unable to move, and threatening her with a knife. In 

addition, McDowell discovered she had been cut on her hand while she slept.

Hohman admitted to cutting her. Moreover, McDowell recognized the knife 

Hohman used as a knife from a knife set in her kitchen. We acknowledge 

McDowell does not remember being cut and only discovered the wound after 

waking up, but note the evidence supporting the verdict gives rise to a

reasonable inference that Hohman cut McDowell’s hand with a knife. We also 

acknowledge the missing knife from McDowell’s knife set was never 

discovered, but again, the evidence gives rise to a reasonable inference that 

Hohman used that knife in the commission of these offenses and then disposed 

of it. In sum, the evidence and reasonable inferences arising therefrom establish 

Hohman committed criminal confinement as a Level 3 felony and battery by 

means of a deadly weapon as a Level 5 felony. 
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II. Double Jeopardy

[9] Hohman argues his convictions for criminal confinement and battery by means 

of a deadly weapon violate the state constitutional prohibition against

double jeopardy in that the same evidence was used to convict him of both 

counts. Article 1, Section 14 of the Indiana Constitution provides, “No person 

shall be put in jeopardy twice for the same offense.”

[T]wo or more offenses are the ‘same offense’ in violation 

of Article 1, 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.

Cross v. State, 15 N.E.3d 569, 571 (Ind. 2014) (alteration and emphasis in 

original) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). We 

review double jeopardy claims de novo. Strong v. State, 29 N.E.3d 760, 766 

(Ind. Ct. App. 2015).

[10] Specifically, Hohman contends his convictions violate the actual evidence test. 

In evaluating two convictions under this test:

[W]e 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.
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Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013) (citations and internal 

quotation marks omitted). The actual evidence test is applied to all the 

elements of both offenses. Id. “In other words, under 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 even several, but not all, of the essential elements of a second 

offense.” Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002).

[11] Determining whether there is a reasonable possibility the jury used the same 

evidentiary facts to reach two convictions “requires substantially more than a 

logical possibility.” Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008). “We 

evaluate the evidence from the jury’s perspective and may consider the charging 

information, jury instructions, and arguments of counsel.” Garrett, 992 N.E.2d 

at 720. Ultimately, if we find the jury “may have latched on to exactly the 

same facts for both convictions[,]” then a double jeopardy violation is 

present. Id. (citation omitted).

[12] We see no violation of the double jeopardy clause here. The evidence 

supporting Hohman’s criminal confinement conviction is that when McDowell 

woke up, Hohman was on top of her, brandishing a knife, threatening her, and 

pinning her to the bed. McDowell could not move and did not consent to 

Hohman’s acts. The evidence supporting Hohman’s battery conviction is that 

he cut McDowell’s hand with a knife while she slept. We conclude there is not 
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a reasonable possibility the jury relied on the same evidentiary facts to find 

Hohman guilty of both offenses. 1

Conclusion

[13] The evidence is sufficient to sustain Hohman’s convictions of criminal 

confinement and battery by means of a deadly weapon and the two convictions 

do not violate the prohibition against double jeopardy. Accordingly, we affirm.

[14] Affirmed.

Mathias, J., and Brown, J., concur.

 

1 We further note, apart from the tests set forth above, Indiana courts have “long adhered to a series of rules 

of statutory construction and common law that are often described as double jeopardy, but are not governed 

by the constitutional test set forth in Richardson.” Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002). Among 

these rules is the rule that precludes a conviction and punishment for an enhancement of a crime where the 

enhancement is imposed for the very same behavior or harm as another crime for which the defendant has 

been convicted and punished. Sistrunk v. State, 36 N.E.3d 1051, 1053-54 (Ind. 2015). Here, Hohman was 

convicted of two elevated felony offenses because he committed both offenses while armed with a deadly 

weapon. Our supreme court has made clear Indiana “jurisprudence teaches that committing two or more 

separate offenses each while armed with a deadly weapon—even the same weapon—is not within the 

category of rules precluding the enhancement of each offense based on ‘the very same behavior.’” Id. at 

1054; see also Gates v. State, 759 N.E.2d 631, 633 n.2 (Ind. 2001) (“It is well established in Indiana that the use 

of a single deadly weapon during the commission of separate offenses may enhance the level of each 

offense.”). To the extent Hohman argues his convictions violate the above rule, we conclude such an 

argument fails.