DELGADO v. STATE (2025)

MEMORANDUM DECISION

[1] Danilo Delgado appeals his convictions for Level 6 felony criminal confinement, Level 6 felony intimidation, and Class A misdemeanor domestic battery. Delgado raises the following three issues for our review:

1. Whether the trial court committed fundamental error when it instructed the jury.

2. Whether Delgado's convictions for Level 6 felony criminal confinement and Class A misdemeanor domestic battery violate Indiana's protection against substantive double jeopardy.

3. Whether the trial court erroneously identified an offense on which the court did not enter judgment as a “conviction” in its sentencing order.

[2] We affirm Delgado's convictions and remand with instructions for the court to correct its sentencing order.

Facts and Procedural History

[3] In July 2023, Delgado and C.S. were in a romantic relationship and lived together in Marion County. On July 11, the two got into an argument, and the two started “struggling.” Tr. Vol. 2, p. 129. C.S. “wanted to leave” the residence, but Delgado “wouldn't let” her.¹ Id. Delgado confined C.S. within their residence “[f]or about an hour.” Id. at 132.

[4] At some point, Delgado grabbed C.S. and “threw” her down “to the ground.” Id. at 129-30. Delgado then got “on top” of C.S., “grabbed [her] by the neck,” and then twice struck her with “the palm of [his] left hand” across her face. Id. at 130. As he struck her, Delgado told C.S. that “he was going to kill [her].” Id. at 131. C.S. believed him. However, she was able to bite Delgado until he released her, and, once released, C.S. fled to a neighbor's house. The neighbor called police.

[5] The State charged Delgado with Level 6 felony criminal confinement, Level 6 felony intimidation, Class A misdemeanor domestic battery, and Class A misdemeanor battery. Aside from names and dates, the State's charges for criminal confinement and domestic battery simply tracked the relevant statutory language. Appellant's App. Vol. 2, p. 20; see Ind. Code §§ 35-42-3-3(a) (2023) (confinement), 35-42-2-1.3(a)(1) (domestic battery). During its closing argument, the State maintained that Delgado had “confined [C.S.] not just down on the floor when he attacked her but ․ for a whole hour,” that Delgado “confined her for an hour,” and also that “[h]e confined her on the floor of the [residence] when he attacked her.” Tr. Vol. 2, pp. 171-72. Delgado “hit[ting]” C.S., of course, was the factual basis for the domestic battery allegation. Id. at 173.

[6] Delgado waived his right to testify in his own defense, and the court provided the following instruction to the jury without objection:

Competent Witness

Under the law of the State of Indiana, a person charged with the commission of a crime is a competent witness to testify [o]n his or her own behalf. However, a person charged with the commission of a crime cannot be compelled to testify and is under no duty or obligation to testify; and the fact that such person does not testify must not be considered in any manner by the jury trying such person.

The Court now instructs you that if the Defendant in this cause did testify on his own behalf, his testimony should be taken and considered and weighed by the jury the same as that of any other witness in this case.

If, on the other hand, the Defendant in this case did not testify on his own behalf, you are instructed that the fact that he does not testify will raise no presumption of any kind against him; that no inference of any kind can be drawn there from [sic] by the jury; and the fact that the Defendant does not testify shall not be commented upon, referred to, or in any manner considered by the jury in determining the guilt or innocence of the Defendant.

Appellant's App. Vol. 2, p. 108 (bold in original; italics added).

[7] The jury found Delgado guilty as charged. Thereafter, the court entered its judgment of conviction against Delgado for Level 6 felony criminal confinement, Level 6 felony intimidation, and Class A misdemeanor domestic battery. The court did not enter judgment on the jury's verdict for Class A misdemeanor battery. Tr. Vol. 2, pp. 180-81. However, in its ensuing sentencing order, the court stated that the Class A misdemeanor battery charge was a “[c]onviction” that “[m]erged” with the domestic battery conviction. Appellant's App. Vol. 2, p. 16.

[8] This appeal ensued.

1. The court's jury instruction regarding a defendant's testimony was not fundamental error.

[9] On appeal, Delgado first asserts that the trial court committed fundamental error when it instructed the jury on scenarios where a defendant does and does not testify. As Delgado did not object to the jury instruction, he must demonstrate fundamental error on appeal. As our case law has made clear:

Fundamental error is an essential safety-valve doctrine that permits appellate courts to order relief due to an undeniable and substantial error that unfortunately slipped past the trial court; it is not a doctrine that exists to simply give appellants a chance to argue that some unpreserved error should nonetheless be reviewable on direct appeal. As our Supreme Court has made clear, “[a]n error is fundamental, and thus reviewable on appeal, if it made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018). Thus, fundamental error

is extremely narrow and encompasses only errors so blatant that the trial judge should have acted independently to correct the situation. At the same time, if the judge could recognize a viable reason why an effective attorney might not object, the error is not blatant enough to constitute fundamental error.

Id.

Willoughby v. State, 244 N.E.3d 473, 476 (Ind. Ct. App. 2024) (cleaned up), trans. denied.

[10] According to Delgado, the court's instruction was “confusing” as it “tried to cover two scenarios at once,” “featured the undefined legal term ‘competent witness[,]’ and told jurors how to weigh testimony that was never given” here. Appellant's Br. at 10. Delgado further asserts that the instruction “created substantial risks of prejudice by inviting jurors to speculate about matters they should never have considered rather than focusing on the evidence presented.” Id. Delgado also notes that the court's instruction here was far more complicated than the pattern instruction.

[11] Although we agree with Delgado that the pattern instruction should have been preferred by the trial court, that is not sufficient to show that the given instruction made a fair trial impossible. See Durden, 99 N.E.3d at 652. To the contrary, the first paragraph of the court's instruction informed the jury that “the fact that [the defendant] does not testify must not be considered in any manner by the jury ․” Appellant's App. Vol. 2, p. 108. The second paragraph described the scenario where a defendant does testify and made clear that it was premised on that condition by stating “if the Defendant in this cause did testify ․” Id. (emphasis added). That paragraph then simply told the jury, under that scenario, to treat the defendant like “any other witness.” Id. The third paragraph described the scenario where a defendant does not testify using the same “[i]f” conditional language. Id. That paragraph again instructed the jury that “the fact that he does not testify will raise no presumption of any kind against him ․” Id.

[12] There is nothing unclear about the given instruction. While it unnecessarily included an irrelevant scenario, nothing about the instruction would have confused a reasonable juror on how to apply it, nor did it invite speculation. See Appellee's Br. at 11 (“The law presumes that a jury can choose between two options.”). Further, while Delgado understands the term “competent witness” to carry a legal meaning, nothing in the instruction here suggested as much. Instead, the court's instruction used the phrase to simply note that a defendant may—but is not required to—testify on his own behalf. There is nothing on the face of the instruction that is legally erroneous or misleading, let alone rising to the level of fundamental error.

[13] Accordingly, the trial court did not commit fundamental error when it instructed the jury.

2. Delgado's conviction for Class A misdemeanor domestic battery is not contrary to law.

[14] We next turn to Delgado's argument that his convictions for Level 6 felony criminal confinement and Class A misdemeanor domestic battery violate Indiana's protection against substantive double jeopardy. We review such questions de novo. A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024).

[15] Indiana's protection against substantive double jeopardy prohibits “multiple convictions for the same offense in a single proceeding.” Id. at 1066. To determine if a substantive double jeopardy violation has occurred, we apply a “three-part test based on statutory sources ․” Id. The first step is to look to the statutory language of the offenses at issue; if that language “clearly permits multiple punishments,” then “there is no violation of substantive double jeopardy.” Id. (quotation marks omitted). Here, Delgado and the State agree that the first step is not dispositive, and so we proceed to the second step.

[16] Under the second step, we look to the face of the charging information to discern if the factual bases identified for the charges implicate our statutory definitions of an “included offense.” Id. In particular, the Indiana Code defines an included offense as an offense that:

(1) 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;

(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or

(3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.

I.C. § 35-31.5-2-168. Our Supreme Court has also explained that an offense is an included offense where the “means used” to commit the alleged greater offense “include all of the elements of the alleged lesser included offense.” A.W., 229 N.E.3d at 1067 (quotation marks omitted).

[17] As noted above, aside from names and dates, the face of the charging information for the Level 6 felony criminal confinement and the Class A misdemeanor domestic battery allegations simply tracks the statutory language of the offenses. Thus, the Level 6 felony criminal confinement allegation stated that Delgado had knowingly “confine[d]” C.S. without her consent, and the Class A misdemeanor domestic battery allegation stated that Delgado had knowingly “touch[ed]” C.S. “in a rude, insolent[,] or angry manner.” Appellant's App. Vol. 2, p. 20.

[18] That language alone does not demonstrate that the two offenses were separate offenses. In particular, the means used by Delgado to “confine” C.S. could have included all of the elements of the domestic battery allegation based on the face of the information. Id. That is, Delgado's confinement of C.S. also may have been his knowing touching of C.S. in a rude, insolent, or angry manner.

[19] Thus, the State's charging information fails to make clear that the factual bases for those two offenses were different. In such circumstances, our Supreme Court held in A.W. that the charging information is to be deemed ambiguous, and those ambiguities “must [be] construe[d] ․ in the defendant's favor” and against the State as the author of the charges. 229 N.E.3d at 1069; see also Ratliff v. State, 242 N.E.3d 1070, 1078 (Ind. Ct. App. 2024), trans. denied. Further, those ambiguities require us to conclude that the defendant has established a “presumptive double jeopardy violation” at this step in the analysis. A.W., 229 N.E.3d at 1069. The State concedes that Delgado has demonstrated a presumptive double jeopardy violation. Appellee's Br. at 17.

[20] We thus proceed to step three of the analysis. At this step, the burden is on the State to rebut the presumptive double jeopardy violation by demonstrating that it made clear to the fact-finder at trial that the apparently included charge was supported by independent evidence and that the State made a “distinction between what would otherwise be two of the ‘same’ offenses.” A.W., 229 N.E.3d at 1071. However, if the State's evidence at trial showed “only a single, continuous crime, and one statutory offense is included in the other,” the State may not obtain cumulative convictions. Id.; see also Ratliff, 242 N.E.3d at 1079 (holding that the State failed to demonstrate that it made a distinction between a rape allegation and a battery allegation when it “made clear to the jury that the means used by [the defendant] to compel [his victim] by force ․ to engage in sexual intercourse was the same evidence that the prosecutor argued supported the battery allegation”).

[21] We conclude that the State made clear to the jury that independent evidence supported the criminal confinement allegation and the domestic battery allegation. In particular, in its closing argument, the State emphasized C.S.’s testimony that Delgado had confined her to their residence for an hour, noting that that confinement was “not just down on the floor when he attacked her but ․ for a whole hour ․” Tr. Vol. 2, p. 171 (emphasis added). Likewise, the State later also stated that Delgado “confined her for an hour.” Id. at 172. And, although the State added that Delgado “confined her on the floor of the trailer when he attacked her,” that argument, in the context of the State's entire closing, is best understood to be that Delgado's confinement of C.S. occurred over the entire hour, which included the time he was on top of C.S. and striking her. Id. at 172. Meanwhile, the State's evidence that Delgado committed domestic battery was premised not on any touching related to a confinement but on him “hit[ting]” C.S. Id. at 173.

[22] Thus, the State made clear to the jury that Delgado confined C.S. within their residence for one hour; that, during that one hour, he also confined her to the ground when he pinned her down; and that, while he had her pinned down, he committed domestic battery when he struck C.S. across the face. The State therefore made a clear distinction between the criminal confinement allegation and the domestic battery allegation because the means used to commit the confinement was independent of the touching underlying the domestic battery. Accordingly, the State has rebutted the presumptive double jeopardy violation, and Delgado's conviction for Class A misdemeanor domestic battery is not contrary to law.

3. The trial court's sentencing order incorrectly identifies the jury's guilty verdict for Class A misdemeanor battery as a conviction.

[23] Last, Delgado notes that the trial court's sentencing order identifies the jury's guilty verdict on the Class A misdemeanor battery as a “[c]onviction” that the court “[m]erged” with his Class A misdemeanor domestic battery conviction. Appellant's App. Vol. 2, p. 16. But the trial court never reduced the jury's verdict on the Class A misdemeanor battery to a judgment of conviction. See I.C. § 35-38-1-1(a). Thus, we agree with Delgado that the language of the trial court's sentencing order is both erroneous and potentially confusing.

[24] Our Supreme Court has recognized that identifying a guilty verdict on which no judgment or sentence has been entered as “merged” is “unproblematic.” Green v. State, 856 N.E.2d 703, 704 (Ind. 2006) (quotation marks omitted). Better still, the trial court could simply identify the jury's verdict on the Class A misdemeanor battery as “not reduced to judgment.” We therefore remand to the trial court with instructions for it to correct and clarify its sentencing order with respect to the Class A misdemeanor battery verdict.

Conclusion

[25] For all of these reasons, we affirm Delgado's convictions for Level 6 felony confinement, Level 6 felony intimidation, and Class A misdemeanor domestic battery. We also remand to the trial court with instructions for it to correct and clarify its sentencing order.

[26] Affirmed and remanded.

FOOTNOTES

1.   C.S. testified through an interpreter, and this particular exchange is reflected in the transcript as follows:Q [by the State:] So then what happened after you argued?A [by C.S., through the interpreter:] I—I forgot. I wanted to leave the house and he—we wouldn't let him, and we started—that's when the—the strikes happened, and we started—well.Tr. Vol. 2, p. 129. We conclude that the best reading of that testimony is that C.S. wanted to leave the residence and Delgado would not let her leave.

Mathias, Judge.

Foley, J., and Felix, J., concur.