Jaron Larue Prevot, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Armed with a knife, Jaron Prevot took his girlfriend A.B. from her home, brought her to his house, and locked her in his bedroom. There, Prevot threatened and raped A.B. The following morning, Prevot demanded A.B. withdraw money from her bank and give it to him. Once they arrived at the bank, A.B. separated from Prevot and asked a teller to call law enforcement. After being convicted of multiple offenses, the trial court sentenced Prevot to 14 years of incarceration. Prevot now appeals and presents four issues for our review:

1. Whether the trial court abused its discretion by granting the State's motion to strike a juror for cause;

2. Whether the trial court committed fundamental error by not giving a unanimity instruction for Prevot's kidnapping charge;

3. Whether Prevot's convictions for kidnapping, criminal confinement, and intimidation violate protections against double jeopardy; and

4. Whether the trial court considered an improper aggravator during sentencing.

[2] We conclude that the trial court did not err in granting the State's motion to strike a juror for cause and identifying aggravating circumstances. However, we conclude that the trial court committed fundamental error by failing to give a unanimity instruction and violated protections against double jeopardy. Thus, we affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[3] On June 24, 2021, while A.B. was alone at her home on Trump Drive in Marion County, she texted Prevot that she wanted to end their relationship. Not taking the news lightly, Prevot showed up unannounced at A.B.’s front door. Once inside, Prevot disconnected A.B.’s phone, took her car keys and drove away, but returned a short time later. After Prevot returned, 911 was called, and law enforcement officers directed Prevot to leave.

[4] Later that night, A.B. awoke to the sound of her bedroom door opening. She turned and saw Prevot. He pushed her head into her pillow and put a knife to her neck, forcing her to get into her car. Prevot drove A.B. to his house on Audubon Road. In the car, Prevot was holding the knife in one hand while he used the other to drive. Once there, Prevot took A.B. to his bedroom and locked the door which Prevot had modified so it could only be opened with his key. Then, Prevot started walking back and forth in the bedroom while playing with the knife, and he told A.B.: “Do you know what my brother told me to do? He told me I should put your body in the trunk and take you to Mississippi.” Tr. Vol. II at 195. Prevot and A.B. eventually fell asleep in his bed; Prevot slept with the knife in his hand the entire night.

[5] In the morning, Prevot, while holding a knife, forced A.B. to give him oral sex and raped her. Afterwards, Prevot and A.B. went outside to her car where Prevot told her that she “was going to have to give him some money.” Tr. Vol. II at 200. Prevot drove A.B. to a Huntington Bank branch on Pendleton Pike and once again drove with one hand while holding a knife in the other. At the bank, A.B. separated from Prevot, told bank employees that she had been kidnapped and she needed to withdraw “about $7,000” from her account. Tr. Vol. II at 146. Law enforcement officers arrived and arrested Prevot at the bank. The State charged Prevot with rape as a Level 1 felony,¹ rape as a Level 3 felony,² burglary as a Level 2 felony,³ kidnapping as a Level 3 felony,⁴ criminal confinement as a Level 3 felony,⁵ attempted armed robbery as a Level 3 felony,⁶ intimidation as a Level 5 felony,⁷ and battery by means of a deadly weapon as a Level 5 felony ⁸ .

[6] At Prevot's jury trial, the State questioned juror A.A.H. during voir dire. On his juror questionnaire, A.A.H. had indicated that he might not be able to be impartial. Juror A.A.H. revealed that he would have trouble being impartial because his sister had been killed by her husband, who was never prosecuted for the killing. Juror A.A.H. said his sister's story was “painful” and “constantly on [his] mind.” Tr. Vol. II at 97. The State moved to strike juror A.A.H. for cause, and the trial court granted the State's motion over Prevot's objection. The trial court later described A.A.H. as follows:

To refresh everyone's recollection, Mr. A.A.H., in his jury questionnaire, had indicated that he was unable to be fair and impartial. Upon questioning by the State, he indicated that his sister was killed by her husband several years ago in a domestic dispute, and he was -- and was never prosecuted. He was -- believed that he was unable to be fair and impartial as a result of that.

What the record would not reflect is that Mr. A.A.H. became quite emotional at that revelation, teared up. And upon further questioning from the State, indicated that he would in fact not be able to be fair and impartial.

Id. at 233–34. After jury selection, the trial court provided a preliminary jury instruction on kidnapping that incorporated the charging information, providing in part that the State must prove Prevot moved A.B. “from one place to another, to wit: from Trump Drive to Audubon Road and/or from Audubon Road to Pendleton Pike.” Appellant's App. Vol. II at 157.

[7] The jury convicted Prevot of (1) kidnapping as a Level 3 felony, (2) criminal confinement as a Level 3 felony, and (3) intimidation as a Level 5 felony; he later pled guilty to one count of rape ⁹ . At sentencing, the trial court found the following aggravating factors: (1) significant harm or injury to the victim, (2) Prevot's criminal history, and (3) a violation of pretrial release conditions in a pending case. The trial court identified Prevot's strong family support as the only mitigating factor. The trial court sentenced Prevot to 14 years for kidnapping, 14 years for criminal confinement, 10 years for rape, and 5 years for intimidation with all sentences to run concurrently, resulting in an aggregate sentence of 14 years of incarceration. This appeal ensued.

Discussion and Decision

1. The Trial Court Did Not Abuse Its Discretion by Granting the State's Motion to Strike a Juror for Cause

[8] Prevot argues that the trial court erred by granting the State's motion to strike juror A.A.H. for cause. We review the trial court's ruling on a for-cause challenge for abuse of discretion. Gibson v. State, 43 N.E.3d 231, 239 (Ind. 2015) (citing Oswalt v. State, 19 N.E.3d 241, 245 (Ind. 2014)). We will affirm the trial court's decision “[s]o long as that discretion is not exercised in an illogical or arbitrary manner.” Ward v. State, 908 N.E.2d 595, 597 (Ind. 2009) (alteration in original) (quoting McElroy v. State, 553 N.E.2d 835, 838 (Ind. 1990)). We give “considerable deference” to the trial court's decision on a motion to strike a juror for cause. Gibson, 43 N.E.3d at 239 (citing Oswalt, 19 N.E.3d at 245).

[9] Juror challenges for cause “are available to exclude prospective jurors whose views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Oswalt, 19 N.E.3d at 246 (internal quotation marks omitted) (quoting Wainwright v. Witt, 469 U.S. 412, 423–24 (1985)). An unbiased jury is required by the United States Constitution, and Indiana law provides further grounds for challenging jurors for cause. Whiting v. State, 969 N.E.2d 24, 29 (Ind. 2012) (citing Ind. Code § 35-37-1-5). Prevot argues that the record does not demonstrate that A.A.H.’s views and experiences substantially impaired his ability to perform his duties as a jury. We cannot agree.

[10] Here, Juror A.A.H. indicated in his juror questionnaire that he might have trouble being fair and impartial. During voir dire, juror A.A.H. stated that it would be “kind of hard to be impartial” because his sister had been killed by her husband who was never prosecuted for the crime. Tr. Vol. II at 97. Juror A.A.H. indicated his sister's death is “kind of painful” and has been “constantly on [his] mind.” Id. The State asked Juror A.A.H. if this case would “maybe not be the best case for [him]” to which he replied, “I'm going to be honest with you out of respect for the Court and the Judge as well. But it -- it wouldn't be good for me.” Id. Further, the trial court later noted that juror A.A.H. became “quite emotional” and “teared up” while giving these answers. Id. at 234. The trial court has wide discretion on whether a juror can be impartial, and here, based upon the juror's statements and behaviors, the judge did not err by believing this juror could not be impartial. We conclude that the trial court did not abuse its discretion by granting the State's motion to strike juror A.A.H. for cause.

2. The Trial Court Committed Fundamental Error by Failing to Give a Unanimity Instruction on the Kidnapping Charge

[11] Prevot claims that the trial court erred by failing to give a unanimity instruction, but he did not offer such an instruction or object to the jury instructions at trial. “The failure to tender an instruction or to object at trial to the omission of an instruction generally waives any claim of error on appeal.” Paul v. State, 189 N.E.3d 1146, 1159 (Ind. Ct. App.) (quoting Abd v. State, 120 N.E.3d 1126, 1136 (Ind. Ct. App. 2019), trans. denied), trans. denied, 196 N.E.3d 685 (Ind. 2022). “[W]e may review an instruction for fundamental error under a ‘narrow exception to waiver.’ ” Dunn v. State, 230 N.E.3d 910, 914 (Ind. 2024) (quoting Miller v. State, 188 N.E.3d 871, 874 (Ind. 2022)). “An error is fundamental if it ‘made a fair trial impossible’ or constituted a ‘clearly blatant violation of basic and elementary principles of due process that presented an undeniable and substantial potential for harm.’ ” Id. (quoting Miller, 188 N.E.3d at 874).

[12] Prevot argues that the trial court committed fundamental error by failing to provide a unanimity instruction to the jury regarding his kidnapping charge. Indiana courts have “long required that a verdict of guilty in a criminal case ‘must be unanimous.’ ” Baker v. State, 948 N.E.2d 1169, 1173–74 (Ind. 2011) (quoting Fisher v. State, 259 Ind. 633, 291 N.E.2d 76, 82 (Ind. 1973)). Disjunctive jury instructions make it difficult to ascertain whether the jury's verdict was reached unanimously. See id. at 1175. Our Supreme Court has described the ambiguity in such instructions:

[A] disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two or more underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense.

Id. (citing Lainhart v. State, 916 N.E.2d 924, 942 (Ind. Ct. App. 2009); Castillo v. State, 734 N.E.2d 299, 304 (Ind. Ct. App. 2000), summarily aff'd on trans., 741 N.E.2d 1196 (Ind. 2001)); see also Dunn, 230 N.E.3d at 916 (“We warn against using ‘and/or,’ especially in jury instructions, because it is ambiguous and potentially imprecise.”). If the State chooses not to a designate a specific act to rely on in proving a particular charge, “then the jurors should be instructed that in order to convict the defendant they must either unanimously agree that the defendant committed the same act or acts or that the defendant committed all of the acts described by the victim and included within the time period charged.” Baker, 948 N.E.2d at 1177.

[13] Here, the trial court's preliminary instruction on kidnapping directly incorporated the language of the charging information and provided that the State must prove, among other things, that Prevot moved A.B. “by force or threat of force ․ from Trump Drive to Audubon Road and/or from Audubon Road to Pendleton Pike.” Appellant's App. Vol. II at 157. As written, the instruction provided that the State could prove that Prevot kidnapped A.B. on June 24, 2021, when he took her from her house to his parents’ house or that he kidnapped her the following day when he took her from his parents’ home to the bank. The trial court's final instructions did not provide any further instruction on kidnapping or a unanimity instruction. Further, the State argued two separate kidnapping instances in its closing: “[L]et's go to kidnapping. What this is is moving a person from one spot to another. And that's what he does twice. He takes it from her house to his, and then again from his to the bank.” Tr. Vol. III at 39 (emphasis added). In light of the above, the charging instrument, the preliminary instruction, and the State's argument all referenced two kidnapping incidents within a single charge. Thus, the trial court should have provided a unanimity instruction and erred by not doing so. See Baker, 948 N.E.2d at 1177.

[14] Although we conclude that the trial court should have given a unanimity instruction, we still must determine if the error was fundamental, making a fair trial impossible. See Baker, 948 N.E.2d at 1178–79. Our courts have found that the failure to give a unanimity instruction has not made a fair trial impossible when the lack of unanimity instruction does not affect the issue of the case. Id. at 1178 (finding no fundamental error because the only issue in the case was the credibility of the child molestation victims); Bowie v. State, 203 N.E.3d 535, 548 (Ind. Ct. App.) (finding no fundamental error because “the only real issue in this case was whether Bowie was sane at the time of the offense”), trans. denied, 209 N.E.3d 1171 (Ind. 2023).

[15] The issue at trial concerning the kidnapping charge was whether A.B. voluntarily went with Prevot from her house to Prevot's parents’ home and then later from Prevot's parents’ home to the bank. The State admitted video footage showing Prevot and A.B. arriving at Prevot's parents’ home on the night of June 24. In the footage, Prevot and A.B. walk into the house together while Prevot holds the knife. Defense counsel highlighted that, in the video, A.B. got out of the car a few seconds after Prevot, she was behind him as they walked up to the house, and she held the door for him as they walked into his parents’ house. In closing, Prevot argued that these facts were inconsistent with someone who was being kidnapped. For the alleged kidnapping that occurred the following day, Prevot pointed to evidence that, a few weeks prior, A.B. had gone to the same Huntington Bank location alone and asked for a $7,000 loan by herself, suggesting that she had not been forced to go the bank and ask for $7,000 on June 25. Prevot presented evidence attempting to show that both of these moves were done voluntarily.

[16] We also look to our decision in Lainhart v. State, 916 N.E.2d 924 (Ind. Ct. App. 2009). There, the State charged the defendant with “communicating a ‘threat to another person, to-wit: Ruth Schreier, Jamie Baker and/or Amy Robertson, with the intent that the other person be placed in fear of retaliation for a prior lawful act.’ ” Lainhart, 916 N.E.2d at 941 (emphasis added). The State argued that these alternative victims were allegedly threatened at distinct periods in the night in question, meaning “the State actually charged [the defendant] with several alternative crimes.” Id. at 942 (citing Schad v. Arizona, 501 U.S. 624, 651 (1991)). A panel of this court determined that the jury “may have disagreed as to which crime occurred” and concluded that the trial court's failure to give a unanimity instruction amounted to fundamental error. Id.

[17] Here, the circumstances are similar to those in Lainhart. The State charged and argued two instances of kidnapping—one when Prevot took her from her house to his home and another when he took her from his home to the bank the next day. Additionally, Prevot presented evidence suggesting that both of these moves were done voluntarily, calling to question both alleged kidnappings. Thus, it is possible that the jury disagreed as to which instance of kidnapping occurred. See Lainhart, 916 N.E.2d at 942. On this record, we conclude that the trial court committed fundamental error by failing to provide a unanimity instruction to the jury.

[18] Typically, the remedy for fundamental error is to reverse and order a new trial. See Ryan v. State, 9 N.E.3d at 663, 672 (Ind. 2014). However, in instances where the trial court committed fundamental error by failing to give a unanimity instruction on one of multiple charges, and where the defendant has already been convicted of similar level offenses, we have vacated the relevant conviction rather than ordering a new trial. See Castillo, 734 N.E.2d at 305 (conviction for dealing in cocaine was vacated based on a failure to include a jury unanimity instruction when charging information offered the jury a “choice” in convicting the defendant. The defendant's conviction of possession of cocaine as a class A felony was affirmed.); Scuro v. State, 849 N.E.2d 682, 689 (Ind. Ct. App. 2006)). In Scuro, we determined that Scuro's conviction for dissemination of matter harmful to minors could have been the result of a verdict that was not unanimous. 849 N.E.2d at 688–89. Rather than ordering a new trial on the charge, we remanded with instructions to vacate the conviction on that count. Id. at 689. Scuro's convictions for child molesting were affirmed. With this precedent, we remand with instructions to vacate Prevot's kidnapping conviction. See id.

3. The Trial Court Violated Double Jeopardy Protections Because Prevot's Conviction for Intimidation Was Factually Included in His Conviction for Criminal Confinement

[19] Prevot argues that the trial court violated double jeopardy protections by entering convictions for intimidation and criminal confinement, asking us to vacate his conviction for intimidation.¹⁰ We review such questions de novo. A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024) (citing Wadle v. State, 151 N.E.3d 227, 237 (Ind. 2020); Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020)).

[20] Indiana's protection against substantive double jeopardy prohibits “multiple convictions for the same offense in a single proceeding.” A.W., 229 N.E.3d at 1066. To determine if a substantive double jeopardy violation has occurred, we apply a “three-part test based on statutory sources.” Id. Prevot argues that his intimidation charge was a lesser included offense of his criminal confinement charge, but the State does not address this argument. Rather, the State claims only that the criminal confinement and intimidation charges were included in the kidnapping charge, asking us to vacate the kidnapping and intimidation charges.¹¹ Thus, we address only Prevot's claim that his intimidation charge was included in the confinement charge.

[21] First, we 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” and we end our analysis. A.W., 229 N.E.3d at 1066 (quoting Wadle, 151 N.E.3d at 248). Second, we assess whether the charges are inherently included or factually included as charged. Id. at 1068. When “ ‘neither offense is an included offense of the other (either inherently or as charged) there is no violation of double jeopardy and the analysis ends’—full stop.” Id. at 1067 (quoting Wadle, 151 N.E.3d at 248). Third, we “probe the underlying facts—as presented in the charging instrument and adduced at trial—to determine whether a defendant's actions were ‘so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.’ ” Id. at 1071 (quoting Wadle, 151 N.E.3d at 249).

[22] First, we note that the statutes for criminal confinement and intimidation do not clearly permit multiple punishments. See I.C. §§ 35-42-3-3; 35-45-2-1. Next, Prevot argues that his intimidation charge is inherently included in his criminal confinement charge. An inherently included offense

(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.

Id. § 35-31.5-2-168; A.W., 229 N.E.3d at 1067. Prevot claims that intimidation only differs from criminal confinement in the respect that a less serious harm or risk of harm to A.B. was required to establish the commission. However, as Prevot recognizes “[i]ntimidation has elements that are not included in the ․ confinement statute[ ],” Appellant's Br. at 23, and these elements do not concern only a less serious harm or risk of harm to the victim, see I.C. §§ 35-42-3-3; 35-45-2-1. Thus, intimidation is not inherently included in criminal confinement.

[23] Prevot argues that the charging information is ambiguous as to whether the intimidation charge was factually included in the criminal confinement charge. The charging information provides

COUNT V

On or about June 25, 2021, JARON LARUE PREVOT did knowingly confine [A.B] without the consent of [A.B.], said JARON LARUE PREVOT being armed with a deadly weapon, to wit, a knife;

* * *

COUNT VII

On or about June 25, 2021, JARON LARUE PREVOT did communicate a threat to [A.B.], another person, by drawing or using a deadly weapon, with the intent that [A.B.] be placed in fear that the threat will be carried out ․

Appellant's App. Vol. II at 33–34 (emphasis in original). From the charging information alone, it is unclear whether the intimidation was included in the confinement or if these charges represent two separate offenses. When the facts on the face of the charging instrument present such an ambiguity, we construe the ambiguity in favor of the defendant, find a presumptive double jeopardy violation at step two, and move to step three. A.W., 229 N.E.3d at 1067.

[24] Prevot argues that step three shows that his conviction for intimidation was part of the same transaction as the criminal confinement. The charging instrument and the facts adduced at trial demonstrate that Prevot kept A.B. locked in his bedroom while he was armed with a knife. While in the bedroom and still holding the knife, Prevot told A.B. that his brother had told him he should “put [her] body in the trunk and take [her] to Mississippi.” Tr. Vol. II at 195. Prevot then stood in front of the bedroom door armed with the knife while staring at A.B., and he eventually fell asleep, holding the knife in his hand the whole night. Thus, we conclude that the confinement and intimidation were “so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction,” A.W., 229 N.E.3d at 1071 (quoting Wadle, 151 N.E.3d at 249), and the trial court violated Indiana's double jeopardy protections by entering convictions on both counts.

4. Any Error in Identifying the Harm or Injury to A.B. as an Aggravating Factor Was Harmless

[25] Prevot argues that the trial court erred by identifying improper aggravating circumstances. We review a trial court's sentencing decision for an abuse of discretion. Owen v. State, 210 N.E.3d 256, 269 (Ind. 2023) (quoting Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007)), reh'g denied (Aug. 17, 2023).

[26] Prevot challenges only the trial court's identification of A.B.’s harm, loss, or injury as an aggravating factor. “[W]hen a defendant challenges some, but not all, of the aggravating circumstances found by the trial court, we will not remand for resentencing if we can say with confidence the trial court would have imposed the same sentence had it not considered the purportedly erroneous aggravators.” Owens, 210 N.E.3d at 269–70 (citing McDonald v. State, 868 N.E.2d 1111, 1114 (Ind. 2007)).

[27] Here, the trial court identified two aggravators that Prevot does not challenge: (1) his history of criminal and delinquent behavior and (2) his recent violation of pretrial release in a pending case. Prevot's criminal history includes four misdemeanor convictions, one alternate misdemeanor sentencing conviction, and one felony conviction. Notably, one of Prevot's misdemeanor convictions and his alternate misdemeanor conviction are for invasion of privacy. Given the nature of Prevot's offense, his criminal history, and the fact that the trial court found his family support as the only mitigator, we confidently believe the trial court would have imposed the same sentence even if it had only considered the two unchallenged aggravating circumstances. Therefore, even if the trial court erroneously identified the harm, injury, or loss to A.B. as an aggravating circumstance, any error was harmless because the unchallenged aggravating factors support the sentence the trial court imposed. See Owens, 210 N.E.3d at 269–70 (citing McDonald v. State, 868 N.E.2d 1111, 1114 (Ind. 2007)).

Conclusion

[28] The trial court did not abuse its discretion by granting the State's motion to strike juror A.A.H. for cause, and any error by identifying A.B.’s harm, loss, or injury as an aggravating factor was harmless. The trial court committed fundamental error by failing to give a unanimity instruction on the kidnapping charge, and the trial court violated double jeopardy protections by entering convictions for criminal confinement and intimidation. Accordingly, we remand with instructions to vacate Prevot's convictions and sentences for kidnapping and intimidation. No new sentencing hearing is necessary. See Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002) (citing O'Connell v. State, 742 N.E.2d 943, 952-53 (Ind. 2001)).

[29] Affirmed in part, reversed in part, and remanded with instructions.

FOOTNOTES

1.   Ind. Code § 35-42-4-1(a)(1), (b)(2).

2.   Id. § 35-42-4-1(a)(1).

3.   Id. § 35-43-2-1(3)(A).

4.   Id. § 35-42-3-2(a), (b)(3).

5.   Id. § 35-42-3-3(a), (b)(3).

6.   Id. §§ 35-42-5-1(a)(2); 35-41-5-1.

7.   Id. § 35-45-2-1(a)(4), (b)(2)(a).

8.   Id. § 35-42-2-1(c)(1), (g)(2).

9.   The jury was unable to reach a verdict on the charge for rape as a Level 1 felony. After hearing the jury's verdict on the remaining seven counts, Prevot entered a plea agreement with the State on this rape charge, pleading guilty to the lesser included offense of rape as a Level 3 felony. Per the terms of the agreement, Prevot's executed sentence on this count could not exceed 10 years and was to be served concurrently with the sentences on all other counts.

10.   Prevot also argues that the criminal confinement charge was factually included in the kidnapping charge. Because we ultimately vacate the kidnapping conviction, we do not address this argument.

11.   The State agrees that the criminal confinement was included in the kidnapping charge. However, the State asks us, in the interests of judicial economy, to vacate the kidnapping charge instead of analyzing Prevot's unanimity argument. Because we have addressed Prevot's unanimity claim, which resulted in reversing the kidnapping conviction as explained above, we decline the State's request to vacate the kidnapping charge on double jeopardy grounds. Due to the argument the State made, without providing an alternative argument, we are left with only Prevot's argument that the intimidation was included in the confinement charge.

Felix, Judge.

Judges Pyle and Weissmann concur. Pyle, J., and Weissmann, J., concur.