Court of Appeals of Indiana | Memorandum Decision 49A04-1701-CR-36 | August 18, 2017 Page 1 of 7

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

Matthew D. Anglemeyer

Marion County Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Caryn N. Szyper

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

John Thompson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 18, 2017

Court of Appeals Case No.

49A04-1701-CR-36

Appeal from the Marion Superior 

Court

The Honorable Lisa Borges, Judge

Trial Court Cause No.

49G04-1607-F1-25387

Bailey, Judge.
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Case Summary

[1] John Thompson (“Thompson”) was convicted of two counts of Rape, as Level 

1 felonies,

1 Criminal Confinement, as a Level 3 felony,2 Aggravated Battery, a 

Level 3 felony,3 and Strangulation, as a Level 6 felony.4 He challenges his 

convictions for Aggravated Battery and Strangulation, presenting the sole issue 

of whether those convictions violate double jeopardy prohibitions because they 

are based upon the same act as that charged in the Confinement count. We 

affirm in part, reverse in part, and remand with instructions that the trial court 

vacate the Aggravated Battery and Strangulation convictions.

Facts and Procedural History

[2] During the evening of June 27, 2016, Thompson and K.S. agreed to meet at 

Thompson’s Indianapolis apartment. A disagreement over money arose, and 

K.S. prepared to leave the apartment. When she stood, Thompson began to tug 

at her shorts. K.S. tried to move out of Thompson’s reach by dropping to the 

floor and pushing with her feet; however, Thompson grabbed K.S. under her 

arms and forced her back onto the sofa.

 

1

Ind. Code § 35-42-4-1(a)(1).

2

I. C. § 35-42-3-3(a).

3

I. C. § 35-42-2-1.5.

4

I. C. § 35-42-2-9(b).
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[3] K.S. banged on the wall and screamed in an attempt to get help; her efforts 

were unavailing. Thompson put his arm around K.S.’s neck and strangled her 

into unconsciousness. When K.S. regained consciousness, she was gasping for 

air. Thompson threatened to shoot K.S. and she agreed that she would be quiet 

and compliant. K.S. asked to be allowed to leave and Thompson responded by 

saying that he would kill her.

[4] Thompson then forced K.S. to engage in oral sex and intercourse. He placed a 

knit hat over her face and walked her to the apartment building exit. He once 

more threatened K.S. that she would be killed if she called police. 

[5] K.S. went to her vehicle and summoned police. Having sustained significant 

injuries, K.S. was taken to the hospital. She was able to identify the apartment 

of her attacker, and Thompson was soon identified as the assailant. He was 

charged with two counts of Rape, and one count each of Criminal 

Confinement, Aggravated Battery, and Strangulation. At the conclusion of a 

bench trial conducted on November 21, 2016, Thompson was found guilty as 

charged.

[6] Thompson was given concurrent thirty-five-year sentences for each Rape 

conviction, concurrent nine-year sentences for Criminal Confinement and 

Aggravated Battery, and a concurrent one-year sentence for Strangulation. The 

aggregate sentence imposed was thirty-five years imprisonment, with five years 

suspended to probation. He now appeals.
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Discussion and Decision

[7] Thompson argues that his convictions for Criminal Confinement, Aggravated 

Battery, and Strangulation were all based upon his one act of strangling K.S., in 

violation of Indiana’s prohibitions against double jeopardy. He directs our 

attention to the double jeopardy clause of the Indiana Constitution, which 

provides, in relevant part, that “[n]o person shall be put in jeopardy twice for 

the same offense.” Ind. Const. Art. 1, § 14. He further directs our attention to 

Indiana Code Section 35-38-1-6, providing

Whenever

(1) A defendant is charged with an offense and an included 

offense in separate counts; and

(2) The defendant is found guilty of both counts;

judgment and sentence may not be entered against the defendant 

for the included offense.

[8] Pursuant to Indiana Code Section 35-31.5-2-168(1), an included offense is an 

offense that “is established by proof of the same material elements or less than 

all the material elements required to establish the commission of the offense 

charged[.]”

[9] Whether convictions violate double jeopardy presents a pure question of law, 

which we review de novo. Whitham v. State, 49 N.E.3d 162, 168 (Ind. Ct. App. 

2015). An offense is a factually lesser-included offense when the charging 
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instrument alleges “the means used to commit the crime charged include all of 

the elements of the alleged lesser included offense.” Smith v. State, 881 N.E.2d 

1040, 1046 (Ind. Ct. App. 2008).

[10] In Count III, the State charged that Thompson committed Criminal 

Confinement:

On or about June 28, 2016, JOHN MICHAEL THOMPSON 

did knowingly or intentionally confine [K.S.] without the consent 

of [K.S.], said act resulting in serious bodily injury to [K.S.], to 

wit, unconsciousness[.]

(App. at 27.)

[11] In Count IV, the State charged Thompson with Aggravated Battery, as follows: 

On or about June 28, 2016, JOHN MICHAEL THOMPSON 

did knowingly or intentionally inflict injury on [K.S.] that created 

a substantial risk of death[.]

(App. at 27.)

[12] In Count V, the State charged Thompson with Strangulation, as follows:

On or about June 28, 2016, JOHN MICHAEL THOMPSON, in 

a rude, insolent or angry manner, did knowingly apply pressure 

to the throat or neck, or obstruct the nose or mouth of [K.S.], 

another person, in a manner that impeded the normal breathing 

or the blood circulation of the other person[.]

(App. at 27.)
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[13] The State alleged and proved that Thompson committed Criminal Confinement 

by strangling K.S. into unconsciousness. The Aggravated Battery count, and 

the State’s proof adduced thereon, concerned the same act of strangulation with 

the same injury, that is, unconsciousness. The Strangulation count and proof 

thereon concerned the same act. On the facts of this case, the Aggravated 

Battery and Strangulation offenses are factually lesser-included offenses of 

Criminal Confinement as they were “established by proof of the same material 

elements or less than all the material elements” required to establish Criminal 

Confinement, as charged. See I. C. § 35-31.5-2-168(1). It was impossible for the 

fact-finder to have found that Thompson criminally confined K.S. by strangling 

her into unconsciousness without also having found the facts that Thompson 

strangled K.S. and caused unconsciousness.

[14] “A double jeopardy violation occurs when judgments of conviction are entered 

for the same criminal act and cannot be remedied by the ‘practical effect’ of 

concurrent sentences or by merger after conviction has been entered.” West v. 

State, 22 N.E.3d 872, 874-75 (Ind. Ct. App. 2014). Thompson’s convictions for 

Aggravated Battery and Strangulation must be vacated to cure the double 

jeopardy violation.

Conclusion

[15] Thompson’s convictions for Rape and Criminal Confinement are affirmed. His 

convictions for Aggravated Battery and Strangulation are reversed. We remand 
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to the trial court with instructions to vacate the convictions and sentences for 

those offenses.

[16] Affirmed in part, reversed in part, and remanded. 

Baker, J., and Altice, J., concur.