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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: EUGENE C. HOLLANDER Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana JUSTIN F. ROEBEL Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ANTHONY D. HOGAN, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 20A03-0606-CR-282

APPEAL FROM THE ELKHART SUPERIOR COURT The Honorable Stephen E. Platt, Judge Cause No. 20D02-0601-FA-3

April 26, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

Anthony D. Hogan appeals his convictions of criminal deviate conduct resulting in serious bodily injury as a Class A felony, 1 attempted rape as a Class B felony, 2 and battery resulting in serious bodily injury as a Class C felony, 3 and the finding he is an habitual offender. 4 Hogan stipulated to being an habitual offender and is estopped from challenging his own stipulation. Although the verdict form referred to "criminal deviate conduct" rather than "criminal deviate conduct resulting in serious bodily injury," the jury instructions as a whole clearly indicated serious bodily injury was required to convict Hogan of criminal deviate conduct as charged. Because Hogan's conviction of battery resulting in serious bodily injury was based on the same evidentiary facts used to convict him of criminal deviate conduct resulting in serious bodily injury, we vacate his conviction of battery. The evidence was sufficient to sustain Hogan's conviction of attempted rape. We affirm in part and reverse in part. FACTS AND PROCEDURAL HISTORY On a few occasions in the summer and early fall of 2004, Hogan used illegal drugs with Mike Oelslager and his girlfriend, Tracy Kling. On October 5, 2004, Hogan came to the house Kling and Oelslager shared. Oelslager was not home at the time but Kling let Hogan in.

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