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

Jeffry G. Price

Peru, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Monika Prekopa Talbot

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jon Jerricco Haupert,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 7, 2015

Court of Appeals Case No.

85A02-1407-CR-510

Appeal from the Wabash Superior 

Court.

The Honorable Christopher M. Goff, 

Judge

Cause No. 85D01-1402-FD-124

Riley, Judge.

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STATEMENT OF THE CASE

[1] Appellant-Defendant, Jon Jerricco Haupert (Haupert), appeals his conviction of 

strangulation, a Class D felony, Ind. Code § 35-42-2-9(b) (2013); and battery

resulting in bodily injury, a Class A misdemeanor, I.C. § 35-42-2-1(a)(1)(A)

(2013).

[2] We affirm but remand with instructions to correct a clerical irregularity.

ISSUES

[3] Haupert raises two issues on appeal, which we restate as follows:

(1) Whether Haupert’s conviction of both a Class D felony strangulation and a 

Class A misdemeanor battery violate his constitutional right against double 

jeopardy; and

(2) Whether the trial court properly enhanced Haupert’s sentence rather than 

imposing a separate, consecutive sentence for his adjudication as a habitual 

offender.

FACTS AND PROCEDURAL HISTORY

[4] Towards the end of January 2014, Haupert was arrested and incarcerated in the 

Wabash County Jail on charges unrelated to the current proceedings. He was 

housed in Cell Block C-1, which consists of seven cells and a common area 

known as the “Day Room.” (Tr. p. 26). The Day Room contains a television 

and tables and is primarily used for the inmates to congregate during the day. 

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Because the cells in Cell Block C-1 could accommodate only fourteen inmates, 

there were a few additional bunk beds in the Day Room in the event of

overcrowding. At that time, fifteen inmates were assigned to Cell Block C-1. 

The jail’s policy requires that all of the cell spaces must be filled before the Day 

Room beds may be utilized at night. Thus, only one inmate in Cell Block C1—Charles D. Smith (Smith)—had been sleeping in a Day Room bunk.

[5] On February 2, 2014, shortly before 10:00 p.m., Haupert informed Smith that 

he wanted to sleep in the Day Room, so Smith would need to relocate to a cell. 

Smith refused, explaining that he had “been there the longest” and “had no 

plans to take a cell that night.” (Tr. p. 27). Haupert threatened that they could 

“figure this out the easy way or the hard way[,]” but Smith was not persuaded. 

(Tr. p. 83). Angered by Smith’s resistance, Haupert went into his cell and 

changed from his personal gray sweatpants into a blue pair that had been issued 

by the jail. According to Haupert, “blood don’t show up as easy on the, uh, 

dark blue” and “if I was gonna ruin something it would have been State issue 

where it didn’t cost me.” (Tr. p. 84). Haupert then went into the cell directly 

across from Smith’s bunk because he was aware that this particular cell was in 

“a blind spot” of the jail’s surveillance cameras. (Tr. p. 86). He “taunt[ed] 

[Smith] to come in there” with the intent to “physically assault him.” (Tr. pp.

79, 81).

[6] Smith, however, continued reading on his bunk, so Haupert rushed out of the 

cell and lunged at him. When Smith dodged to avoid being punched, Haupert 

grabbed him around the neck and yanked him off the bunk. With Smith 

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secured in a headlock, Haupert dragged him toward the cell, but Smith grabbed

onto the cell’s bars in an effort to avoid being pulled all the way in. Haupert 

tightened his grip on the headlock, inhibiting Smith’s ability to breathe, and 

also administered several blows to Smith’s rib cage with his knee. Smith 

managed to break free and ran across the Day Room to push the emergency 

button to summon a correctional officer.

[7] Assistant Jail Commander Duane Coburn responded and escorted Smith out of 

Cell Block C-1. He contacted the Wabash County Sheriff’s Department, and

Deputy Eric Ryggs (Deputy Ryggs) arrived to investigate. Deputy Ryggs first 

reviewed the surveillance footage and observed that Smith was “holding his left 

side” following the altercation. (Tr. p. 67). Deputy Ryggs subsequently met 

with Smith for an interview, at which point Smith “was still holding his left side 

and appeared to be in a lot of pain.” (Tr. p. 67). Deputy Ryggs took 

photographs of the red marks left on Smith’s neck as a result of the headlock.

[8] On February 19, 2014, the State filed an Information, charging Haupert with 

Count I, strangulation, a Class D felony; and Count II, battery resulting in 

bodily injury, a Class A misdemeanor. On March 6, 2014, the State filed an 

Information alleging Haupert to be a habitual offender.

[9] On June 11, 2014, the trial court conducted a bifurcated jury trial. At the close 

of the evidence, the jury returned a guilty verdict on both Counts. Thereafter, 

Haupert pled guilty to the habitual offender charge. The trial court entered a 

judgment of conviction on Counts I and II and adjudicated Haupert as a 

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habitual offender. On July 7, 2014, the trial court held a sentencing hearing. 

On Count I, strangulation, the trial court imposed an executed sentence of five 

years, which included a three-year enhancement for the habitual offender 

adjudication. As to Count II, battery, the trial court ordered a concurrent oneyear sentence. 

[10] Haupert now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Double Jeopardy

[11] Haupert claims that his conviction of both strangulation and battery violates his 

constitutional right to be free from double jeopardy. The Double Jeopardy 

Clause of the Indiana Constitution provides that “[n]o person shall be put in 

jeopardy twice for the same offense.” IND. CONST. art. 1, § 14. The Indiana 

Supreme Court has determined that, for purposes of double jeopardy, two 

offenses are the same offense 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 v. State, 717 N.E.2d 32, 49 (Ind. 1999). 

On appeal, our court reviews de novo whether a defendant’s conviction violates 

the Double Jeopardy Clause. Goldsberry v. State, 821 N.E.2d 447, 458 (Ind. Ct. 

App. 2005).

[12] In order to convict Haupert of strangulation, a Class D felony, the State had to 

establish that he,

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in a rude, angry, or insolent manner, knowingly or intentionally:

(1) applie[d] pressure to the throat or neck of another person; or

(2) obstruct[ed] the nose or mouth of . . . another person;

in a manner that impedes the normal breathing or the blood 

circulation of the other person.

[13] I.C. § 35-42-2-9(b) (2013). On the other hand, proving that Haupert committed 

battery resulting in bodily injury, a Class A misdemeanor, required the State to 

demonstrate that he “knowingly or intentionally touche[d] another person in a 

rude, insolent, or angry manner,” which “result[ed] in bodily injury to any 

other person.” I.C. § 35-42-2-1(a)(1)(A) (2013). The crimes of strangulation 

and battery resulting in bodily injury “each contain an element not shared by 

the other.” Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2008). Thus, Haupert 

does not challenge his conviction under the statutory elements test; rather, he 

asserts that his conviction violates the “actual evidence test.” See id. at 1233-34.

[14] Applying 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.” Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013). 

We will find a double jeopardy violation only if 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.” Id. There is no double 

jeopardy violation if “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. (quoting Spivey v. State, 761 N.E.2d 831, 833 

(Ind. 2002)). A “reasonable possibility” determination “turns on a practical 

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assessment of whether the [fact finder] may have latched on to exactly the same 

facts for both convictions.” Id. (alteration in original) (quoting Lee, 892 N.E.2d 

at 1236). Our court must review “the evidence from the jury’s perspective and 

may consider the charging information, jury instructions, and arguments of 

counsel.” Id.

[15] Haupert argues that the charging Information and jury instructions “simply 

quoted” the statutory language, and that the language defining the crimes of 

strangulation and battery are “almost identical.” (Appellant’s Br. p. 8). 

Haupert further asserts that the evidence supports a finding of battery resulting 

in bodily injury, but there is insufficient evidence to prove that he strangled 

Smith. As such, he posits that the jury improperly relied on the evidence that 

establishes battery to also convict him of strangulation. We initially note that 

Haupert’s argument of insufficient evidence based on Smith’s references to the 

conduct as a “headlock” rather than a “strangle” is nothing more than a request 

to reweigh evidence, which we decline to do. (Appellant’s Br. pp. 8-9).

Furthermore, we disagree with Haupert’s actual evidence analysis for two

reasons.

[16] First, we acknowledge that Haupert is correct that the charging Information 

and the jury instructions do not explicitly distinguish that the headlock is the 

basis for the strangulation charge and that the rib injury is the basis for the 

battery charge. Instead, the Information and instructions clarify that the crime 

of strangulation requires proof that Haupert applied pressure to Smith’s throat 

or neck in a manner that impeded his normal breathing, whereas the crime of 

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battery requires proof that Haupert touched Smith in a rude, insolent, or angry 

manner resulting in bodily injury. Here, the jury was presented with distinct 

evidence to independently support both offenses. By grabbing Smith in a 

headlock and applying pressure to his throat, whereby Smith was unable to 

breathe, Haupert completed the crime of strangulation. Beyond that, he

committed battery by using his right knee to repeatedly strike the left side of 

Smith’s rib cage, resulting in “pain for a month and a half afterwards.” (Tr. p. 

31).

[17] We are unpersuaded by Haupert’s contention that there is a reasonable 

possibility that the jury construed the headlock as the rude, insolent, or angry 

touching necessary to support a battery conviction. The jury was instructed to

“consider all the instructions together.” (Appellant’s App. p. 131). Relating to 

the battery charge, the jury instruction defined “bodily injury” as “any 

impairment of physical condition, including physical pain.” (Appellant’s App. 

p. 136). Here, the bulk of the evidence demonstrating any type of “bodily 

injury” concentrated on the kneeing of Smith’s ribs and the amount of pain it 

caused. (Appellant’s App. p. 136). Deputy Ryggs testified that he observed 

Smith clutching his left side in the surveillance footage—which the jury also 

reviewed—as well as during the interview following the incident. Smith 

testified that the level of pain to his ribs, “[o]n a scale from 1 to 10, I would say 

it was a 7, right after it happened, 10 being I’m ready to die.” (Tr. p. 31). 

Accordingly, in finding Haupert guilty of battery, we find it likely that the jury

relied on the distinct fact that Smith sustained bodily injury as a result of being

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kneed in the ribs, notwithstanding the headlock. See Goldsberry, 821 N.E.2d at

459 (“The appellant must show more than a remote or speculative possibility 

that the same facts were used.”).

[18] Second, in its closing argument, the State summarized that “Mr. Haupert 

intended everything that you saw in that video. Everything he did to Mr. 

Smith. He was angry. He grabbed him. He kneed him. He strangled him. He 

cut off his airway.” (Tr. pp. 91-92). Although the State did not specify which 

evidence should be used to find Haupert guilty of each offense, it emphasized 

that Haupert committed several distinct acts in the course of the skirmish. 

Moreover, in the defense’s closing argument, Haupert’s counsel specifically 

identified “the evidence that was distinct to each crime.” Lee, 892 N.E.2d at 

1237. In particular, the defense clarified for the jury that

the legislature sets up the elements of the crime of Battery. And that’s 

what they define Battery is. A rude or insolent touching causing 

injury. Causing pain. You saw the knee in the ribs. I certainly think 

that would hurt. Mr. Smith told ya it hurt and that seems logical. . . .

Now he also used words like, well, my air was cut off when I grabbed 

the bar or he didn’t really know when his air was cut off. Now he also 

says he panicked, you know. . . . But in order to convict Mr. Haupert 

of Strangulation you need to be convinced that it wasn’t panic. . . . It 

was the fact that Mr. Haupert cut off, applied pressure and cut off his 

airflow. . . . Now, strangulation is, for someone to intend to strangle 

another person, I mean, that’s . . . above and beyond one to hit or 

strike. Strangulation is a much more intimate form of violence.

(Tr. p. 94). As a practical matter, taking into consideration the charging 

Information, the jury instructions, the closing arguments, and the evidence 

itself, we do not find a “reasonable possibility” that the jury relied on the same 

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evidentiary facts to establish the essential elements of both strangulation and 

battery. Garrett, 992 N.E.2d at 719. Therefore, Haupert’s conviction does not 

violate the Indiana Double Jeopardy Clause. 

II. Habitual Offender Enhancement

[19] Haupert also claims that “the language used by the trial court in the enhanced 

sentence is contrary to that required by applicable case law.” (Appellant’s Br. 

p. 10). In the Abstract of Judgment, the trial court indicated that Haupert was 

sentenced to three years for the habitual offender adjudication, which was to be 

served “consecutive” to his two-year sentence under Count I. (Appellant’s 

App. p. 10). According to Haupert, the trial court erred by imposing 

consecutive sentences instead of simply noting that Haupert had received a fiveyear enhanced sentence for his conviction of Class D felony strangulation. 

(Appellant’s Br. p. 11).1

[20] Our supreme court has previously established that the imposition of “a separate 

consecutive sentence” for a habitual offender adjudication “is an irregularity” 

because a “habitual offender conviction allows enhancement of a sentence for a 

substantive offense, not a separate sentence.” Hazzard v. State, 642 N.E.2d 

1368, 1371 (Ind. 1994) (citing Armstead v. State, 538 N.E.2d 943, 944 (Ind. 

1989)). In the present case, the trial court indicated during the sentencing 

1

 Having determined that Haupert’s conviction of Class D felony strangulation will not be vacated because 

there is no double jeopardy violation, we need not address Haupert’s assertion that “there is no predicate for 

the habitual offender enhancement.” (Appellant’s Br. p. 10).

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hearing that it would be imposing a consecutive sentence for the habitual 

offender adjudication, but the State reminded the court that it is considered “an 

enhanced sentence that is an additional fixed term” rather than “a consecutive 

sentence.” (Tr. p. 131). As a result, in its Sentencing Order, the trial court 

“enhanced [Haupert’s] sentence, as to [Count] I, by an additional [three] years 

imprisonment for a total sentence, as to [Count] I, of [five] years with none 

suspended.” (Appellant’s App. p. 12). It is therefore clear that the trial court 

ordered a properly enhanced sentence. However, we must remand with 

instructions for the trial court to correct the Abstract of Judgment to reflect that 

the habitual offender adjudication merits an enhancement to the sentence on 

Count I rather than a separate, consecutive sentence. 

CONCLUSION

[21] Based on the foregoing, we conclude that Haupert’s conviction of strangulation,

a Class D felony, and battery resulting in bodily injury, a Class A misdemeanor, 

does not violate Indiana’s Double Jeopardy Clause. We further conclude that 

the trial court imposed a properly enhanced sentence on Count I but 

erroneously indicated in the Abstract of Judgment that the enhancement was a 

separate, consecutive sentence.

[22] Affirmed but remanded with instructions to correct a clerical irregularity.

[23] Vaidik, C. J. and Baker, J. concur

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