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Henson v. State

Court of Appeals of Indiana

October 30, 2017

Kevin Henson, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Wayne Superior Court Trial Court Cause No. 89D01-1411-FC-93 The Honorable Charles K. Todd, Jr., Judge

          Attorney for Appellant Ronald J. Moore The Moore Law Firm, LLC Richmond, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

          NAJAM, JUDGE.

         Statement of the Case

         [¶1] Kevin Henson appeals his convictions following a jury trial for three counts of battery, as Class C felonies; four counts of criminal recklessness, as Class D felonies; criminal mischief, as a Class D felony; and operating a vehicle while intoxicated, as a Class C misdemeanor. Henson presents three issues for our review:

1. Whether the trial court violated his right under Article 1, Section 14 of the Indiana Constitution to be free from double jeopardy.
2. Whether the State presented sufficient evidence to support seven of his convictions.
3. Whether his sentence is inappropriate in light of the nature of the offenses and his character.

         We affirm in part, reverse in part, and remand with instructions.

         Facts and Procedural History

         [¶2] Shortly after midnight on March 9, 2014, Henson, his son Stephen Daniel Henson ("Daniel"), and Charles Patterson II drank alcohol together at an apartment in Richmond. Throughout the night, Henson and Daniel engaged in a heated argument. At approximately 1:00 a.m., the three left the apartment in order to buy cocaine from Daniel's cousin. Henson drove Daniel's Honda Accord with Patterson in the front passenger seat and Daniel in the back seat behind Henson. Henson and Daniel continued to argue as they were in the car.

         [¶3] As Henson turned southbound onto Chester Boulevard, he "pressed the [gas] pedal all the way down to the floor" and sped down the street. Tr. Vol. 2 at 139. Patterson asked Henson to stop the car. In fact, Patterson "pleaded for [his] life for him to stop the car to let [him] out[, ]" but Henson ignored him. Id. at 165. At one point, Daniel told Henson that he hated him and called him a "b****." Id. at 141. In response, Henson said, "'I'm a b[****], well, watch this[, ]' and he jerked the wheel . . . straight to the left . . . clear across all lanes, directly into [a] Speedway [gas station, ] and he continued to gun it." Id. Henson was driving the car at approximately sixty miles per hour when he drove over a curb and straight into some gas pumps.

         [¶4] As the car crashed into the gas pumps, which caused explosions, Daniel and Patterson were both ejected from the car and hit the ground. The car flipped onto its roof and slid across the pavement until it came to rest. Scotty Adams, a Speedway customer who had witnessed the crash, found Henson unconscious and "trapped" in the car in an "upside down" position. Id. at 96. Adams could not get Henson out of the car, and Adams sought help from a responding police officer. Ultimately, Richmond Police Department Officer Alecia Tonuc climbed into the car and extricated Henson.[1] Medical personnel arrived and assisted Daniel, Patterson, and Henson before transporting them to the hospital. Henson's blood alcohol content ("BAC") was .22.

         [¶5] As a result of the crash, Patterson sustained severe injuries to his head and face that required reconstructive facial surgery, which included having metal plates installed in the right side of his face. Daniel sustained injuries to his head, shoulder, and knees and required three to four weeks to recover from his injuries. Jasmine Simmons, another customer at the gas station who witnessed the crash and ensuing explosions, sustained burns to her left thigh when she removed her three-year-old son from her car, which she had parked at a nearby pump.

         [¶6] The State charged Henson with fourteen felonies and two misdemeanors. A jury found Henson guilty of twelve felonies.[2] The trial court entered judgment of conviction on the following counts: three counts of battery, as Class C felonies (Counts I, II, and III); four counts of criminal recklessness, as Class D felonies (Counts V, VII, VIII, and IX); criminal mischief, as a Class D felony (Count X); and operating a vehicle while intoxicated, as a Class C misdemeanor (Count XI). And the trial court sentenced Henson to an aggregate term of nine years and sixty days, with one and one-half years suspended to probation. This appeal ensued.

         Discussion and Decision

         Issue One: ...


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