Morales v. State

165 N.E.3d 1002

Jason E. MORALES, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 20A-CR-913

Court of Appeals of Indiana.

FILED March 25, 2021

Attorney for Appellant: Cara Schaefer Wieneke, Wieneke Law Office, LLC, Brooklyn, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Tiffany A. McCoy, Deputy Attorney General, Indianapolis, Indiana

Weissmann, Judge.

[1] Jason E. Morales's computer contained pornographic material in violation of the terms of his parole. After his parole officer confiscated the computer, an agitated Morales attempted to destroy the incriminating electronic evidence by breaking into and setting fire to the parole offices. This act landed Morales three new felony convictions, a habitual offender finding, and another thirty-six years in prison.

[2] Morales appeals his convictions for Level 2 felony burglary and two counts of Level 4 felony arson, claiming the trial court improperly instructed the jury and that some of his convictions violate double jeopardy principles. We reverse one of Morales's arson convictions because it subjects him to double jeopardy but otherwise affirm the trial court's judgment.

Facts

[3] Morales's doomed enterprise began when his parole officer, Travis Carter, conducted a routine search of Morales's home.

Officer Carter found a flash drive hidden in Morales's dresser and evidence of a pornographic file on his laptop computer. The terms of Morales's parole barred him from viewing pornography. Officer Carter confiscated the laptop, angering Morales.

[4] That evening Morales told his girlfriend he was worried about the discovery of the pornographic materials, but he had a plan. Morales said he was "gonna burn the parole office up." Tr. Vol. IV, pp. 55, 57.

[5] A few hours after that conversation—and fourteen hours after Officer Carter seized the laptop—Morales used a pry bar to force open the door to the Vigo County Community Corrections Building. Once inside, Morales pried open the door to Officer Carter's office as well as some file cabinets therein, although nothing apparently was taken. Before leaving, Morales ignited several fires in the parole offices with the use of an accelerant. Approximately sixty people were in the building when the fires were set, but no one was hurt.

[6] Officer Carter and others watched security video footage and identified Morales as the intruder. Officers found a blue pry bar in Morales's car. The paint from the pry bar matched that collected at the parole offices. Morales initially denied being at the scene but later told police he was across the street from the Community Corrections building when the fires occurred.

[7] The State charged Morales with Level 2 felony burglary and three counts of Level 4 felony arson and alleged he was a habitual offender. The trial court dismissed one of the arson counts, and the jury returned verdicts of guilty as to the remaining counts. The trial court sentenced Morales to a total of thirty-six years imprisonment.

Discussion and Decision

[8] Morales raises two issues on appeal. First, he claims the trial court improperly rejected one of his proposed jury instructions. Second, he asserts a double jeopardy violation arising from his convictions for arson and burglary.

I. Instruction

[9] Morales first challenges the trial court's rejection of his "reasonable theory of evidence" instruction. A trial court has discretion when instructing the jury and will be reversed only for an abuse of that discretion. Winkleman v. State , 22 N.E.3d 844, 849 (Ind. Ct. App. 2014), trans. denied. A trial court abuses its discretion by rejecting an instruction that correctly states the law, is supported by the evidence at trial, and contains directives not covered by other instructions. Id. ; McCowan v. State , 27 N.E.3d 760, 763-64, 766 (Ind. 2015).

[10] Morales's requested instruction provided:

In determining whether the guilt of the accused is proven beyond a reasonable doubt, you should require that the proof be so conclusive and sure as to exclude every reasonable theory of innocence.

[11] App. Vol. V, p. 78. Morales claims his proposed instruction was mandatory under Hampton v. State, 961 N.E.2d 480, 491 (Ind. 2012). In that case, the Indiana Supreme Court ruled an instruction identical to Morales's should be given, when requested, if the only evidence tending to prove the crime's actus reus is circumstantial. The actus reus is the wrongful act necessary to commit the crime. Wayne R. LaFave & Austin W. Scott, Criminal Law § 6.7 at 586 (2d ed. 1986).

[12] Morales argued at trial and asserts again on appeal that the evidence of his commission of the crimes was purely circumstantial. The trial court did not mention direct or circumstantial evidence when rejecting the instruction. Instead, the trial court declined Morales's instruction because the other instructions conveyed its substance. Tr. Vol. IV, pp. 164-65. Morales claims Hampton requires his "reasonable theory of innocence" instruction even under those circumstances.

[13] Morales's argument, planted entirely in Hampton's soil, cannot bloom. The State presented a combination of circumstantial and direct evidence of his criminal act. Circumstantial evidence is "based on inference and not on personal knowledge or observation." Hampton , 961 N.E.2d at 489 (citing Circumstantial Evidence , Black's Law Dictionary (9th ed. 2009)). Conversely, direct evidence "is based on personal knowledge or observation" and, "if true, proves a fact without inference or presumption." Id. (citing Gambill v. State , 675 N.E.2d 668, 675 (Ind. 1996) ).

[14] Morales's statement to his girlfriend that he would burn the parole office was direct evidence of the actus reus. See Thompson v. State , 728 N.E.2d 155, 158-59 (Ind. 2000) (labeling as direct evidence accused's pre-murder statements indicating he would kill victim); see also Cox v. State , 475 N.E.2d 664, 667-68 (Ind. 1985) (finding accused's statements admitting guilt are direct evidence). Hampton does not apply because the actus reus evidence was not solely circumstantial. As Morales offers no other basis for finding the trial court abused its discretion in rejecting his "reasonable theory of evidence" instruction, we find no error.

II. Double Jeopardy

[15] Morales next claims his convictions for arson and burglary violate common law double jeopardy principles. Although we reject that claim, we sua sponte find his two convictions for arson violate the statutory prohibition against substantive double jeopardy.

A. Arson and Burglary

[16] Morales's double jeopardy claim rests on his argument that the prosecution twice relied on his use of an accelerant and ignition source to convict him: first, to prove he committed arson and, second, to enhance his burglary conviction to a Level 2 felony by establishing he was armed with a deadly weapon. See Ind. Code § 35-31.5-2-86(a)(2) (defining "deadly weapon" as including "chemical substance" readily capable of causing serious bodily injury in the manner it is used, could ordinarily be used, or was intended to be used); Ind. Code § 35-43-2-1(3)(A) (defining burglary as a Level 2 felony if "committed while armed with a deadly weapon").

[17] The Indiana Supreme Court ruled decades ago that enhancement of one offense based on the same act used to convict the defendant of a second offense violates common law double jeopardy principles. See, e.g. , Kingery v. State , 659 N.E.2d 490, 496 (Ind. 1995) ; Moore v. State , 652 N.E.2d 53, 60 (Ind. 1995). But those decisions predate the Indiana Supreme Court's decision in Wadle v. State , 151 N.E.3d 227 (Ind. 2020), which dramatically altered our substantive double jeopardy analysis.

[18] Morales suggests Wadle preserved common law double jeopardy claims. Panels of this Court have split on this issue. Some have found Wadle does not circumscribe all common law double jeopardy claims. See, e.g. , Rowland v. State , 155 N.E.3d 637, 640 (Ind. Ct. App. 2020) (noting Wadle left common law protection undisturbed); Shepherd v. State , 155 N.E.3d 1227, 1240 (Ind. Ct. App. 2020) (ruling " Wadle left Indiana's common law double jeopardy jurisprudence intact"), trans. denied.

[19] Others have found Wadle engulfed all double jeopardy claims, including those previously arising under the common law. See, e.g. , Woodcock v. State , 163 N.E.3d 863, 871–72 (Ind. Ct. App. 2021) (ruling "the common law rules are incorporated into the Wadle analysis and no longer exist independently"); Jones v. State , 159 N.E.3d 55, 61 (Ind. Ct. App. 2020) (stating Wadle "swallowed statutory and common law to create one unified framework for substantive double jeopardy claims"), trans. denied ; Diaz v. State , 158 N.E.3d 363, 368 (Ind. Ct. App. 2020) (noting Wadle "did away with the ‘old law’ on claims of substantive double jeopardy, including ... all common-law rules"); Hill v. State , 157 N.E.3d 1225, 1229 (Ind. Ct. App. 2020) (holding common law protections "did not survive Wadle "). We subscribe to the latter view for the reasons expressed in Jones. 159 N.E.3d at 61-62. Therefore, we analyze Morales's double jeopardy claim under the analysis required by Wadle .

[20] Determinations of double jeopardy claims are questions of law that we review de novo. Id. at 237. Where, as here, a defendant's single act or transaction is charged under multiple statutes, Wadle first requires us to review the charging statutes to determine if they allow multiple punishments. 151 N.E.3d at 253. Indiana's arson statute provides, in pertinent part:

A person, who, by means of fire, explosive, or destructive device, knowingly or intentionally damages ... (2) property of any person under circumstances that endanger human life [or] (3) property of another person without the other person's consent if the pecuniary loss is at least five thousand dollars ($5,000) ... commits arson, a Level 4 felony.

Indiana Code § 35-43-1-1(a)

[21] This portion of this statute "does not...