BASS v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Following a bench trial, Dontez L. Bass was found guilty of Level 6 felony battery and Class A misdemeanor battery. He now appeals, raising the following issues for our review: (1) whether there was sufficient evidence to convict and (2) whether the convictions violate double jeopardy. Finding sufficient evidence to convict, we affirm Bass's Level 6 felony battery conviction. But because the two convictions violate double jeopardy, we reverse and remand for vacation of the Class A misdemeanor.

Facts and Procedural History

[2] In February 2023, Bass worked as a “behavioral tech” at Benchmark Group Home in Wabash County. Tr. Vol. II p. 48. Benchmark is a group home for adult males “with intellectual disabilities[.]” Id. at 43. Keith Johnson was a resident at Benchmark. He has autism and an “explosive disorder” but is verbal and generally physically capable of caring for himself. Id. at 46. He primarily needs assistance with his incontinence and related hygiene.

[3] On February 21, Bass and fellow behavioral tech Aimee Morse were working at Benchmark. That morning, Johnson “soil[ed] himself.” Id. at 68. Bass “appeared angry” and told Johnson “to get into the shower[.]” Id. at 52. Bass then accompanied Johnson into the bathroom and closed the door. Morse, who was standing on the other side of the door, heard “[a] lot of thumping, thudding sounds” “almost like hitting a wall” and then heard Johnson say, “please stop[.]” Id. at 58. Bass then exited the bathroom and told Morse he “had to use some wrestling moves on [Johnson]” to get him to shower. Id. at 59. The next day, Johnson complained of pain in his ribs and was taken to Wabash Parkview Hospital, where he was diagnosed with a broken rib. At the hospital, Johnson told doctors that “his staff beat him up[.]” Id. at 64.

[4] The State charged Bass with Level 6 felony battery and Class A misdemeanor battery. A bench trial was held in March 2025. At trial, Morse and Johnson testified. During Johnson's direct examination, the State attempted to ask Johnson about his injury and how it occurred. Defense counsel objected based on leading questions, and the State responded, asking “the Court for a little latitude given the state of the witness.” Id. at 79. The court indicated it would “give [the State] a little latitude.” Id. The following exchange then occurred:

[The State]: Okay. At some point, did you, did [Bass] cause any kind of injury on you? Is that a yes?

[Defense Counsel]: I'm going to ask that the witness - -

[The Court]: Are you shaking your head yes, [Johnson]? Are you saying yes or no?

[Johnson]: Yes.

[The Court]: Yes. Okay.

[The State]: And how did – what did he do? What did [Bass] do? You made a motion like he punched you in the ribs? Is that a yes?

[The Court]: He said yes.

[The State]: And where did that happen in the group home? Where at did - -

[Johnson]: In the shower.

Id. at 80.

[5] The court found Bass guilty as charged and sentenced him on each offense to one year, with sixty days executed and the remainder suspended to probation, to be served concurrently. Bass now appeals.

Discussion and Decision

I. Sufficiency of Evidence

[6] Bass first argues the evidence is insufficient to support his battery convictions. Specifically, he argues Johnson's testimony should be disregarded under the doctrine of incredible dubiosity. Under the doctrine of incredible dubiosity, we may impinge upon a fact-finder's responsibility to judge the credibility of the witness. Hampton v. State, 921 N.E.2d 27, 29 (Ind. Ct. App. 2010), reh'g denied, trans. denied. The doctrine requires there be: “1) a sole testifying witness; 2) testimony that is inherently contradictory, equivocal, or the result of coercion; and 3) a complete absence of circumstantial evidence.” Moore v. State, 27 N.E.3d 749, 756 (Ind. 2015). “Application of this rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.” Hampton, 921 N.E.2d at 29 (quoting Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007)).

[7] Bass focuses his argument on Johnson's testimony, noting Johnson “struggled” to respond to the State and that most of his testimony was in response to leading questions from the State. Appellant's Br. p. 13. But regardless of the strength of Johnson's testimony, the incredible dubiosity rule is not available to invalidate that testimony where it is corroborated by other witnesses. At trial, Morse testified that Bass appeared angry at Johnson, he and Johnson went into the bathroom alone, she heard “thumping” and “thudding” sounds, heard Johnson say “please stop,” and that after Bass came out of the bathroom he told her he used “wrestling moves” on Johnson. Tr. Vol. II pp. 58-59. Johnson's subsequent complaints of pain and hospital visit revealed a broken rib. This is all circumstantial evidence that corroborates Johnson's testimony. As such, the incredible dubiosity rule is not applicable and the evidence is sufficient to support the convictions. See Baxter v. State, 132 N.E.3d 1, 5 (Ind. Ct. App. 2019) (child victim's testimony sufficient to support child molestation conviction where it was corroborated by forensic nurse's testimony).

II. Double Jeopardy

[8] Bass also argues his convictions constitute double jeopardy. We review double jeopardy claims de novo. McGuire v. State, 263 N.E.3d 745, 749 (Ind. Ct. App. 2025), trans. denied. Bass was convicted of Level 6 felony battery under Indiana Code section 35-42-2-1(e)(4) and Class A misdemeanor battery under Indiana Code section 35-42-2-1(d)(1). Where a claim involves a single criminal transaction that violates multiple statutes with common elements, we apply the analysis laid out in Wadle v. State, 151 N.E.3d 227, 237 (Ind. 2020). “For purposes of double-jeopardy analysis, different subsections detailing different elements should be treated as ‘multiple statutes’ pursuant to Wadle, even if they are subsections of the same section of the Indiana Code.” McGraw v. State, 243 N.E.3d 394, 401 (Ind. Ct. App. 2024), trans. denied.

[9] First, we determine whether “the language of either statute clearly permits multiple punishment, either expressly or by unmistakable implication[.]” Wadle, 151 N.E.3d. at 248. If so, the inquiry is at an end and there is no double-jeopardy violation. Id. Here, neither subsection of the battery statute clearly permits multiple punishment. As such, we turn to Wadle’s next step.

[10] Second, we determine whether the offenses are included “either inherently or as charged.” Id. If neither offense is included in the other, again the inquiry ends and there is no double-jeopardy violation. Id.

Included offenses come in two forms: inherently included offenses and offenses that are included as charged. An offense is inherently included if it meets the definition of “included offense” in Indiana Code Section 35-31.5-2-168. An offense is included as charged (or “factually included”) if the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser included offense. In determining whether offenses are included as charged, we examine only the facts as presented on the face of the charging information.

McGuire, 263 N.E.3d at 749-50 (quotations omitted).

[11] These offenses do not meet the statutory definition of an “included offense” under Indiana Code section 35-31.5-2-168, as each crime includes an element the other does not. Specifically, as charged here, the Level 6 felony battery required Johnson to be a person with a mental or physical disability in the care of Bass, and the Class A misdemeanor required an injury. See Ind. Code §§ 35-42-2-1(d)(1), (e)(4). However, Bass argues the offenses are factually included. “[W]hen assessing whether an offense is factually included, a court may examine only the facts as presented on the face of the charging instrument.” A.W. v. State, 229 N.E.3d 1060, 1067 (Ind. 2024) (emphasis in original). “This includes examining the ‘means used to commit the crime charged,’ which must ‘include all of the elements of the alleged lesser included offense.’ ” Id. (quoting Wadle, 151 N.E.3d at 251). Where ambiguities exist in a charging instrument about whether one offense is factually included in another, courts must construe those ambiguities in the defendant's favor and find a presumptive double-jeopardy violation, although the State can later rebut this presumption. Id. This is a protection for the defendant, as otherwise the State “could unilaterally decide how much to include (or not include) in the charging instrument, which could decisively determine the outcome of a double jeopardy claim.” Id. at 1069.

[12] Turning to the charging information here, Count I, Level 6 felony battery, reads as follows:

On or about the 21st day of February, 2023, at the County of Wabash, State of Indiana, one Dontez L. Bass did knowingly or intentionally touch Keith Johnson, a person with a mental or physical disability, in a rude, insolent, or angry manner and at the time of the offense, Keith Johnson was in the care of Dontez L. Bass, whether assumed voluntarily or because of a legal obligation[.]

App. Vol. II p. 46 (formatting altered). The charging information for Count II, Class A misdemeanor battery, reads as follows:

On or about the 21st day of February, 2023, at the County of Wabash, State of Indiana, one Dontez L. Bass did knowingly or intentionally touch Keith Johnson in a rude, insolent, or angry manner that resulted in bodily injury to Keith Johnson[.]

Id. (formatting altered).

[13] Here, the charging information for each offense simply tracks the statutory language. Because of the way the information was drafted, specifically the lack of factual detail, one cannot necessarily tell whether the means used to commit each battery was distinct. In other words, it is entirely possible on the face of this charging information that the touching alleged in the first count was in fact the touching alleged in the second count. This ambiguity creates a rebuttable presumption of a substantive double-jeopardy violation.

[14] Thus, we proceed to the final step and give the State the opportunity to rebut the presumptive double-jeopardy violation. To do so, “the State must demonstrate that it made clear to the fact-finder at trial that the apparently included charge was supported by independent evidence such that the State made a distinction between what would otherwise be two of the same offenses.” Eversole v. State, 251 N.E.3d 604, 608 (Ind. Ct. App. 2025) (quotation omitted), trans. denied. To make this determination, we look to whether the defendant's actions were “so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” Wadle, 151 N.E.3d at 249.

[15] It is clear from the facts presented at trial that Bass's actions constituted a single transaction. The evidence here showed Bass punched Johnson while in the shower. That action was the basis for both offenses. At no point did the State allege that multiple batteries occurred or differentiate the touching alleged in each charge. In fact, the State in its closing argument noted it “has charged this case in the alternative. Essentially, Count II is [ ] kind of a lesser included of Count I.” Tr. Vol. II pp. 97-98. And on appeal, the State does not make an argument under this section of the analysis. As such, the State has failed to rebut the presumption, and we agree with Bass that the court violated his substantive double-jeopardy rights by entering judgements of conviction for both battery convictions. The proper remedy is to vacate the conviction with the lesser penalty—the Class A misdemeanor—and its accompanying sentence.¹ See Eversole, 251 N.E.3d at 609.

Conclusion

[16] We affirm Bass's conviction and sentence for Level 6 felony battery but reverse his conviction for Class A misdemeanor battery and remand for vacation of that conviction and its sentence.

[17] Affirmed in part, reversed in part, and remanded with instruction.

FOOTNOTES

1.   The vacation of this conviction and its sentence will not affect Bass's aggregate sentence.

Scheele, Judge.

Brown, J., and Felix, J., concur.