III v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Following a jury trial, Conway E. Herriott, III was found guilty of Level 6 felony battery and Class A misdemeanor resisting law enforcement. Immediately after the trial, Herriott approached a witness, members of the jury, and the prosecutors to discuss his case. The court revoked Herriott's bond due to this conduct. Herriott now appeals, raising two issues for our review: 1) whether the court erred in revoking his bond; and 2) whether his convictions violate double jeopardy.¹ We reverse and remand with instructions.

Facts and Procedural History

[2] On June 12, 2024, Indianapolis Metropolitan Police Department (IMPD) Officers Charles Hudson and Johnathon Wendt responded to a call from someone who reported Herriott banging on her apartment door. When officers arrived, Herriott was yelling and screaming in the hallway outside the apartment. Herriott told the officers he wanted to retrieve his property from inside the apartment. Officer Hudson informed Herriott he could not enter the apartment and told him to stand on the opposite side of the hallway so they could try to get his property for him. Upon seeing the apartment door open, Herriott disregarded the officers’ instructions and began to walk towards the resident.

[3] Officer Wendt grabbed Herriott's arm to stop his advance and move him away from the apartment. Herriott immediately spun around, pushed Officer Wendt, then pointed in the officer's face and said, “Don't touch me ․ you don't have no right to touch me.” State's Ex. 1(001-2) 00:05-00:07.² Officer Wendt moved Herriott against the wall “to create space.” Tr. Vol. II p. 225. Then Herriott pushed Officer Wendt again. Officers Hudson and Wendt each grabbed one of Herriott's arms and attempted to cuff him. Herriott continued to resist and “was still actively, forcefully pulling away from [the officers], turning, twisting his body in an attempt to prevent [them] from placing him into custody.” Id. at 202. After a few seconds, the officers cuffed him. Less than ten seconds passed from the time Herriott first pushed Officer Wendt to the time Herriott began forcefully pulling away from the officers’ attempt to handcuff him. State's Ex. 1(001-2) 0:05-0:14. The entire scuffle lasted about one minute. See id. at 0:04-1:04.

[4] On June 13, the State charged Herriott with Level 6 felony battery and Class A misdemeanor resisting law enforcement. The court released Herriott on bond on June 24. The court held a jury trial on March 24, 2025. During the State's closing argument, it distinguished Herriott pushing Officer Wendt as the conduct constituting battery and Herriott twisting his body as the conduct constituting resisting law enforcement. The State explained, however, that when Officer Wendt “no doubt” placed his hands on Herriott, he was “clearly tr[ying] to stop [Herriott] from disobeying an order that had been repeated time and time again.” Tr. Vol. III p. 4. The jury found Herriott guilty as charged.

[5] After the trial concluded, Herriott confronted multiple jurors while they were walking out of the courthouse and asked, “You don't find me innocent?” App. Vol. II p. 156. A juror reported the encounter to the trial court in an email, describing the situation as “very unsafe and concerning[.]”³ Id. When the court notified the parties about the email, the State disclosed that Herriott also approached two prosecutors and “asked if [they] thought his actions constituted a battery” and “what [they] would think if he were one of [their] kids.” Id. at 158. The parties discussed Herriott's conduct at a hearing on March 25, and the following exchange occurred:

The Court: All right. So, State, based on that, is there anything that you're asking the Court?

[State]: ․ Uhm, I, I'm happy to proceed with Sentencing. We would ask that-

The Court: Well, either that or a motion to, to revoke bond, which, which, or a motion- which are you requesting? We're not gonna do the Sentencing now.

[State]: Yes.

The Court: Which one (1) are you requesting?

***

[State]: I would ask for a motion to revoke bond at this time. Uhm, I will submit a formal motion if you'd like.

The Court: Well, no. What factors do you want the Court to consider, and, uh, if you want testimony, we can. Okay?

***

[State]: Uhm, the fact that the Defendant, uhm, walked up to the jurors as well as myself and my supervisor, uh, JP, yesterday.

Tr. Vol. III pp. 19-20 (formatting altered). The State presented no evidence in support of its motion. Herriott testified he approached jurors, Officer Wendt, and the prosecutors after trial to discuss his case. In response, the State noted Herriott “did not make any threatening statements” to prosecutors but they “did not feel free to leave until he, uh, stepped away[.]” Id. at 22.

[6] Before revoking his bond, the court noted that “even before [it] found out” about Herriott's post-conviction conduct, it was already considering changes to courtroom procedure based on Herriott's “outbursts” during the trial. Id. at 23. The court then revoked Herriott's bond, finding he was a threat to “anybody that he believes is responsible for his situation[.]” Id. at 24. The court observed “[i]f we can't have our jurors trusting that they're gonna be safe, then we're, then we're gonna have a problem getting jurors for trials.” Id. Herriott responded, questioning whether it was “appropriate” to revoke Herriott's bond as a matter of “public policy[.]” Id. at 24. The court explained that Herriott “got the context” of its ruling wrong and clarified that it was not revoking Herriott's bond “to show that the public is safe” but because it “believe[d Herriott posed] a threat to the witnesses that still could be, uh, called at Sentencing” and “to the prosecutors[.]” Id. at 25.

[7] Herriott filed a motion to reconsider revocation of his bond on March 28. On April 1, the court denied Herriott's motion and sentenced him. The court sentenced Herriott to concurrent sentences of two years for battery, with 688 days suspended to probation, and forty-two days executed (amounting to time served) for resisting law enforcement. Herriott filed his notice of appeal on April 29.

Discussion and Decision

I. Revocation of Bond

[8] Herriott first argues the court erred in revoking his bond. Our Supreme Court has long recognized that “[t]he denial of bail is deemed a final judgment appealable immediately[.]” Bradley v. State, 649 N.E.2d 100, 106 (Ind. 1995). An issue becomes moot “when the controversy at issue has been ended, settled, or otherwise disposed of so that the court can give the parties no effective relief.” Spells v. State, 225 N.E.3d 767, 777 (Ind. 2024) (internal quotation omitted). We may still address the merits of a moot issue “by applying the public interest exception ‘when the issue involves a question of great public importance which is likely to recur.’ ” Sanchez v. State, 264 N.E.3d 1223, 1227 (Ind. Ct. App. 2025) (quoting J.F. v. St. Vincent Hosp. & Health Care Ctr., Inc., 256 N.E.3d 1260, 1264 (Ind. 2025)). An issue is not moot where collateral consequences flow from a trial court's decision because meaningful relief can still be had on review. Hamed v. State, 852 N.E.2d 619, 622 (Ind. Ct. App. 2006).

[9] While the parties do not discuss the timeliness of Herriott's appeal, we observe Herriott filed a notice of appeal on April 29, thirty-five days after the court revoked his bond on March 25. Herriott's motion to reconsider did not “extend the time for any further required or permitted action, motion, or proceedings[.]” Ind. Trial Rule 53.4(A). Thus, Herriott forfeited his right to appeal the revocation of his bond because he did not file a notice of appeal within thirty days. Ind. Appellate Rule 9(A)(1); see also Satterfield v. State, 30 N.E.3d 1271, 1274 (Ind. Ct. App. 2015) (holding defendant forfeited his right to appeal denial of bail by not timely filing a notice of appeal). However, we exercise our authority under Indiana Appellate Rule 1 to deviate from the rules and proceed to the merits of this issue.

[10] The trial court sentenced Herriott seven days after it revoked his bond. As a result, we cannot return Herriott to pre-sentence release on bond. Because we cannot provide effective relief on review, Herriott's appeal of the revocation of his bond is moot. Herriott nonetheless asks us to invoke the public interest exception because the court, in his view, did not comply with Indiana Code section 35-33-8-5. The Indiana Constitution enshrines a qualified right to bail in Article 1 Section 17, which our Supreme Court has stated is “a cherished right.” Bozovichar v. State, 103 N.E.2d 680, 681 (Ind. 1952), abrogated on different grounds by Fry v. State, 990 N.E.2d 429 (Ind. 2013). Given the liberty interests at stake, there is great public importance in ensuring our trial courts adhere to the procedures for bond revocation outlined in Indiana Code section 35-33-8-5. See e.g., Cole v. State, 997 N.E.2d 1143, 1144 n.1 (Ind. Ct. App. 2013) (invoking public interest exception to address whether trial court improperly increased bail sua sponte despite mootness); see also Riley v. State, 129 N.E.3d 218, 220 (Ind. Ct. App. 2019) (observing trial court error in altering defendant's bail sua sponte). Accordingly, we address the merits of the revocation of Herriott's bond under the public interest exception.

[11] We review a bond revocation for an abuse of discretion. DeWees v. State, 180 N.E.3d 261, 264 (Ind. 2022) (citing Perry v. State, 541 N.E.2d 913, 919 (Ind. 1989)). An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances presented. Id. Indiana Code section 35-33-8-5(a) provides that a court may alter or revoke a defendant's bond upon “application to the court” by the State or the defendant. The State needed to prove by clear and convincing evidence that Herriott “threatened or intimidated a victim, prospective witnesses, or jurors concerning the pending criminal proceeding” or that he “otherwise pose[d] a risk to the physical safety of another person or the community[.]” Ind. Code §§ 35-33-8-5(d)(1)(A), (d)(2) (2017).

[12] Here, the State requested Herriott's bond be revoked because he “walked up to the jurors as well as [the prosecutors.]” Tr. Vol. III p. 20. In support of its motion, the State relied solely upon unverified discussion about the content of emails exchanged between the court and parties prior to the hearing. The State did not admit these emails as evidence, read them into the record, elicit testimony regarding their content or present any evidence at all. After Herriott testified and claimed he did not threaten anyone, the State acknowledged “he did not make any threatening statements” to prosecutors but said they “did not feel free to leave until he, stepped away[.]” Id. at 22. Based on this record, the State did not prove by clear and convincing evidence that Herriott either threatened or intimidated a victim, prospective witnesses, or jurors, or that he otherwise posed a risk to the physical safety of another person or the community. See Riley, 129 N.E.3d at 220 (holding requirements to increase defendant's bail were not met where State did not present any evidence). Therefore, the trial court abused its discretion in revoking Herriott's bond.

II. Double Jeopardy

[13] Herriott 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. Herriott was convicted of Level 6 felony battery under Indiana Code section 35-42-2-1(e)(2) and Class A misdemeanor resisting law enforcement under Indiana Code section 35-44.1-3-1(a)(1). Where, as here, 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).

[14] First, we determine whether “the language of either statute clearly permits multiple punishment, either expressly or by unmistakable implication[.]” Id. at 248. The parties agree that the applicable statutes here do not do so. Second, we determine whether the offenses are included “either inherently or as charged[.]” Id. Here, the parties agree Herriott's battery and resisting law enforcement offenses are not inherently included. The State concedes, however, the charging information is ambiguous, which creates a rebuttable presumption of a substantive double jeopardy violation. See A.W. v. State, 229 N.E.3d 1060, 1070 (Ind. 2024).

[15] Thus, we proceed to the final step and give the State an 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 (quotation omitted).

[16] The facts here are similar to Delgado v. State, 246 N.E.3d 1276 (Ind. Ct. App. 2024), trans. denied, which we find instructive. In that case, an officer tried to grab the defendant's arm to cuff him, prompting the defendant to pull away and punch the officer repeatedly. Id. at 1286. When the officer made a second attempt to restrain the defendant a minute or two later, Delgado stepped back and punched the officer again. Id. We held Delgado's actions constituted a single transaction and his convictions for battery and resisting law enforcement violated double jeopardy. Id. at 1287.

[17] Here, too, the time between Herriott's actions was “minimal at best”—less than ten seconds passed from Herriott first pushing Officer Wendt to Herriott pulling away from the officers while they attempted to cuff him. Id. at 1286. The evidence shows Officer Wendt attempted to physically move Herriott twice, prompting Herriott to retaliate by pushing the officer away after each attempt. When Officers Hudson and Wendt tried to cuff Herriott mere seconds later, he continued to resist and “was still actively, forcefully pulling away from [the officers.]” Tr. Vol. II p. 202 (emphasis added). The entire encounter occurred in the hallway of the apartment complex and lasted about a minute. During this time, Herriott pushed and pulled away from the officers for a single purpose: resisting their attempts to bring him under physical control.

[18] Further, the State attempted to distinguish Herriott pushing Officer Wendt from Herriott pulling away from the officers while they attempted to cuff him. Yet the State also argued in closing that when Officer Wendt grabbed Herriott's arm he was “clearly tr[ying] to stop [Herriott] from disobeying an order that had been repeated time and time again.” Tr. Vol. III p. 4. Thus, when Herriott resisted Officer Wendt's direction by pushing him away, Herriott simultaneously touched the officer and engaged in a forcible act of resistance. See Delgado, 246 N.E.3d at 1287 (finding State's factual characterizations in opening and closing arguments lacked separation between defendant's charges when he twice pulled away from an officer before punching him). The State thus has not rebutted the presumption of a double jeopardy violation based on any facts adduced at trial.

[19] Consequently, Herriott's convictions for both Level 6 felony battery and Class A misdemeanor resisting law enforcement violate his double jeopardy rights. The proper remedy is to vacate the conviction with the lesser penalty—the Class A misdemeanor resisting law enforcement—and its accompanying sentence.⁴ See Eversole, 251 N.E.3d at 609.

Conclusion

[20] We reverse the trial court's revocation of Herriott's bond and his conviction for Class A misdemeanor resisting law enforcement, and remand for vacation of that conviction and its sentence.

[21] Reversed and remanded with instructions.

FOOTNOTES

1.   Herriott also challenged the enforceability of a no-contact probation condition. After the trial court corrected the record showing no entry of a no-contact condition, Herriott moved to withdraw this issue on appeal. His motion to withdraw the issue as moot is granted.

2.   State's Exhibit 1 is a disc containing three videos admitted at trial. We refer to these exhibits by the digits in their file name. State's Exhibit 1(001-1) is Officer Hudson's body-worn camera footage. State's Exhibit 1(001-2) is Officer Wendt's body-worn camera footage. State's Exhibit 1(001-3) is a longer, unredacted version of Officer Wendt's body-worn camera footage.

3.   The juror's email was not admitted into evidence nor read into the record at the hearing. The email only appears in the record as an attachment to Herriott's motion to reconsider.

4.   The vacation of this conviction and its sentence will not affect Herriott's aggregate sentence.

Scheele, Judge.

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