Court of Appeals of Indiana | Opinion 20A04-1512-CR-2142 | July 26, 2016 Page 1 of 8

ATTORNEY FOR APPELLANT

Peter D. Todd

Elkhart, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana 

James B. Martin

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jerry W. Young,

Appellant/Defendant,

v.

State of Indiana,

Appellee/Plaintiff/Cross-Appellant.

July 26, 2016

Court of Appeals Case No.

20A04-1512-CR-2142

Appeal from the Elkhart Superior 

Court 

The Honorable Evan S. Roberts, 

Judge

Trial Court Cause No.

20D01-1504-FA-18

Bradford, Judge.

Case Summary

[1] In 2012, Appellant-Defendant Jerry Young raped A.B. In 2015, Young was 

convicted of Class A felony rape, Class A felony criminal deviate conduct, and 

Class D felony intimidation. Young was also found to be a repeat sexual 
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offender and a habitual criminal offender. The trial court merged the 

convictions for rape and criminal deviate conduct and sentenced Young to an 

aggregate ninety-year term. On appeal, Young argues that the trial court erred 

by enhancing his rape conviction twice. The State concedes the trial court erred 

in this regard but argues that the trial court should have reduced the criminal 

deviate conduct charge to a lesser-included offense and applied one of the 

enhancements to that conviction. We reverse and remand with instructions. 

Facts and Procedural History

[2] On October 16, 2012 at around 1:00 a.m., A.B. arrived home and went to sleep 

on her couch. At around 3:00 a.m., A.B. was awaken by someone knocking on 

her door. Assuming it was one of her friends, A.B. opened the door. Instead, it 

was Young, who pushed his way into her apartment. A.B. did not know 

Young but had seen him before walking near her apartment. Young, who was 

intoxicated, sat down on A.B.’s couch, and A.B. tried to convince him to leave 

to no avail. Young told A.B. he wanted to “play a sexual game.” Tr. p. 144. 

Despite A.B.’s refusal, Young said “We’re going to do this,” and forced A.B. to 

have sexual intercourse with him and to fellate him. 

[3] On April 29, 2015, the State charged Young with Class A felony rape, Class A 

felony criminal deviate conduct, and Class D felony intimidation. The State 

also alleged that Young was a repeat sexual offender and a habitual criminal 

offender. After a jury trial, Young was found guilty as charged and admitted to 

being a repeat sexual offender and a habitual offender. At sentencing, the trial 
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court merged the convictions for rape and criminal deviate conduct and 

sentenced Young to fifty years for rape and three years for intimidation to be 

served concurrently. The trial court also enhanced Young’s sentence by thirty 

years due to his status as a habitual offender and an additional ten years based 

on his repeat sexual offender status, for an aggregate ninety-year sentence. 

Discussion and Decision

[4] Young argues that the trial court erred by applying two sentence enhancements 

to his rape conviction. The State concedes that the trial court erred in this 

regard. “[A] conviction under a specialized habitual offender statute cannot be 

further enhanced under the general habitual offender statute in the absence of 

explicit legislative direction.” Dye v. State, 972 N.E.2d 853, 857 (Ind. 2012), 

aff’d on reh’g, 984 N.E.2d 625 (Ind. 2013). The Court in Dye also noted that the 

repeat sexual offender statute is a “specialized habitual offender statute.” Id. at 

864. 

[5] The State, however, argues that the trial court erred by merging Young’s 

convictions for rape and criminal deviate conduct. Young did not file a 

response to the State’s argument on this issue. “The failure to respond to an 

issue raised by the appellant is akin to the failure to file a brief. Under such 

circumstances, we may reverse upon a showing of prima facie error on the issue 

which was not addressed.” Nat’l Oil & Gas, Inc. v. Gingrich, 716 N.E.2d 491, 496 

(Ind. Ct. App. 1999) (citations omitted). “‘Although this failure does not 

relieve us of our obligation to correctly apply the law to the facts in the record 
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in order to determine whether reversal is required, counsel for the appellee 

remains responsible for controverting arguments raised by the appellant.’” 

Elliott v. Rush Mem’l Hosp., 928 N.E.2d 634, 639 (Ind. Ct. App. 2010) (quoting 

Nance v. Miami Sand & Gravel, LLC, 825 N.E.2d 826, 837 (Ind. Ct. App. 2005), 

trans. denied). 

[6] The trial court ordered that Young’s convictions be merged based on Ramon v. 

State, 888 N.E.2d 244 (Ind. Ct. App. 2008). “‘Under the rules of statutory 

construction and common law that constitute one aspect of Indiana’s double 

jeopardy jurisprudence, where one conviction is elevated to a class A felony 

based on the same bodily injury that forms the basis of another conviction, the 

two cannot stand.’” Id. (quoting Strong v. State, 870 N.E.2d 442, 443 (Ind. 

2007)). The trial court merged the convictions because both were enhanced to 

A felonies based on the same threatened use of deadly force. 

[T]here are times when a Court has to do a few things that the 

Court does not agree with and, in part, this is one of those times. 

In light of the case of [Ramon] versus the State of Indiana, 888 

NE 2d 244, the Court believes that counts 1 and Count 2 must be 

merged in light of the charging information, file stamped April 

30, 2015. The basis for that is the element of deadly force or the 

imminent threat of deadly force. It appears to the Court that it is 

the same deadly force or imminent threat used in both charges. 

That’s what the law indicates, counts 1 and Count 2 [sic] must be 

merged, otherwise it is considered to be a double jeopardy 

violation.

Tr. p. 800. 
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[7] The State argues that the proper remedy to this double jeopardy problem was 

not to merge the convictions but to reduce one of the offending convictions to a 

lesser-included offense. “When two convictions are found to contravene double 

jeopardy principles, a reviewing court may remedy the violation by reducing 

either conviction to a less serious form of the same offense if doing so will 

eliminate the violation.” Richardson v. State, 717 N.E.2d 32, 54 (Ind. 1999). 

Specifically, the State contends that the trial court should have reduced Young’s 

conviction for Class A felony criminal deviate conduct to Class B felony 

criminal deviate conduct, which requires only the use or threatened use of force 

rather than the threatened use of deadly force as an element.

1

 The State further 

argues that there was ample evidence of physical force used by Young in 

forcing A.B. to fellate him distinct from the threatened use of deadly force 

supporting the rape conviction. We agree and remand with instructions that 

the trial court enter judgement of conviction for Class B felony criminal deviate 

conduct. See Kovats v. State, 982 N.E.2d 409, 414 (Ind. Ct. App. 2013) 

(Defendant was convicted of Class D felony OWI causing serious bodily injury 

and Class B felony neglect of a dependent causing serious bodily injury, with 

the same bodily injury used to support both convictions. This court found that 

 

1

“(a) A person who knowingly or intentionally causes another person to perform or submit to deviate sexual 

conduct when: (1) the other person is compelled by force or imminent threat of force;...commits criminal 

deviate conduct, a Class B felony. 

(b) An offense described in subsection (a) is a Class A felony if: (1) it is committed by using or threatening the 

use of deadly force.”

Ind. Code § 35-42-4-2 (2012). 
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the trial court’s merger of convictions was insufficient to cure double jeopardy 

violations and the appropriate remedy for such a violation was to vacate the 

judgment for Class D felony OWI and enter a judgment for the lesser-included 

offense of Class A misdemeanor OWI.). 

[8] Upon remedying a double jeopardy issue, “the trial court need not undertake a 

full sentencing reevaluation, but rather the reviewing court will make this 

determination itself, being mindful of the penal consequences that the trial court 

found appropriate.” Richardson, 717 N.E.2d at 54. On remand for 

resentencing, we instruct the trial court to run any sentence imposed on the 

criminal deviate conduct conviction concurrent to Young’s fifty-year sentence 

for rape. 

[9] Additionally, the State argues that the trial court should have enhanced the rape 

conviction under the habitual offender statute and enhanced the criminal 

deviate conduct conviction under the repeat sexual offender statute. Again, 

Young did not reply to the arguments raised by the State. While it is 

permissible to impose multiple habitual offender enhancements on separate 

convictions, generally those enhancements must be run concurrently. In 

Breaston v. State, the Indiana Supreme Court held that “a trial court cannot order 

consecutive habitual offender sentences” even where the second enhanced 

sentence is imposed in an entirely separate proceeding. 907 N.E.2d 992, 994 

(Ind. 2009) (citing Starks v. State, 523 N.E.2d 735, 737 (Ind. 1988)). The Court 

reasoned as follows: 
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“[T]he power to order consecutive sentences is subject to the rule 

of rationality and limitations in the constitution.... it is apparent, 

from a study of the present statutes, that such statutes are silent 

on the question of whether courts have the authority to require 

habitual offender sentences to run consecutively, when engaged 

in the process of meting out several sentences. In the absence of 

express statutory authorization for such a tacking of habitual 

offender sentences, there is none.”

Id. (quoting Starks, 523 N.E.2d 736-37). 

[10] We acknowledge a factual distinction between the instant case and those 

situations addressed in Breaston and Starks. In those cases, the Court addressed 

whether two general habitual offender enhancements could be run 

consecutively. Here, we address whether a general habitual offender 

enhancement and a specialized habitual offender enhancement––the repeat 

sexual offender enhancement––can be run consecutively. Despite the 

difference, we see no reason why the rationale of Breaston and Starks should not 

be similarly applied to this case. Just as there is no express statutory 

authorization for stacking general habitual offender enhancements, there is 

likewise no authorization for stacking general and specialized habitual offender 

enhancements. Accordingly, on remand, the trial court should apply the 

habitual offender enhancement to Young’s rape conviction and apply the repeat 

sexual offender enhancement to the criminal deviate conduct conviction, to be 

run concurrently. 

Conclusion 
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[11] The trial court erred by merging Young’s convictions for rape and criminal 

deviate conduct and by applying two enhancements to a single conviction. On 

remand, we order the trial court to enter judgment of conviction for Class B 

criminal deviate conduct. With regards to sentencing, Young’s fifty-year 

sentence for rape, and thirty-year habitual offender enhancement, remain

unchanged. Young’s repeat sexual offender enhancement will be attached to 

his criminal deviate conduct conviction with both sentences running concurrent 

to the rape conviction for an aggregate sentence of eighty years. 

[12] The judgment of the trial court is reversed and remanded with instructions. 

Bailey, J., and Altice, J., concur.