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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: MICHAEL R. FISHER Marion County Public Defender Agency Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ZACHARY J. STOCK Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JOSE JOHNSON, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-0703-CR-241

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Sheila Carlisle, Judge Cause No. 49G03-0606-FA-105631

October 18, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge

Jose Johnson appeals his convictions and sentence for two counts of criminal deviate conduct, 1 each as a Class A felony, one count of intimidation 2 as a Class C felony, three counts of battery, 3 two as Class C felonies and one as a Class A misdemeanor, criminal confinement 4 as a Class D felony, and domestic battery 5 as a Class A misdemeanor. Johnson raises the following restated issues on appeal: I. Whether the evidence presented was sufficient to support his intimidation and criminal deviate conduct convictions. Whether his intimidation and criminal deviate conduct convictions violated his right against double jeopardy. Whether the aggregate sentence of sixty-nine and one-half years is appropriate in light of Johnson's character and the nature of the offense.

II.

III.

We affirm. 6 FACTS AND PROCEDURAL HISTORY For several years, Johnson and W.L. had a relationship that produced two children. In January 2006, W.L. left Johnson for a few weeks and took their children to live with her mother. Eventually, W.L. and the children returned to Johnson. The relationship
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See IC 35-42-4-2. See IC 35-45-2-1. See IC 35-42-2-1. See IC 35-42-3-3. See IC 35-42-2-1.3.

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Johnson also claims a conflict exists between the trial court's oral sentencing statement and written sentencing statement that warrants a reduction in his sentence. On February 7, 2007, the trial court issued an amended sentencing order to reflect Johnson's correct aggregate sixty-nine and one halfyear sentence. Appellant's App. at 283-84. The issue is now moot and not addressed on appeal. See McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007) (courts of appeal have "the option of crediting the statement that accurately pronounces the sentence or remanding for resentencing." (internal citations omitted)); see also Barton v. Fuller, 231 N.E.2d 35 (Ind. 1967).

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became abusive after Johnson suspected W.L. had been unfaithful while they lived apart. From May 26, 2006 to June 8, 2006, Johnson brutalized W.L. through a series of different acts including battering her head, torso, arms, and legs, with a board, a belt, a hammer, pinching her breasts with pliers, lacerating her with box cutters, choking her to the point of unconsciousness, dragging her by her hair, and sodomizing her anus and vagina with the handle of a hammer. During these acts, W.L.'s children cried out for their mother in the open next room. Johnson also threatened to rip W.L.'s insides out so that no man would want to touch her again, unless she admitted to infidelity. Johnson was charged with fourteen different counts, and after two trials, he was ultimately convicted of eight offenses: two counts of criminal deviate conduct, three counts of battery, one count of intimidation, one count of confinement, and one count of domestic battery. During sentencing, the trial court found Johnson's criminal history, violation of a no-contact order, and the nature of the offense as aggravating factors that warranted the sentence. Johnson now appeals. DISCUSSION AND DECISION I. A. Sufficiency of the Evidence Standard of Review

When reviewing a claim for sufficiency of the evidence, we consider only the evidence most favorable to the verdict and the reasonable inferences that can be drawn therefrom. Norris v. State, 755 N.E.2d 190, 192 (Ind. Ct. App. 2001) (citing Davis v. State, 658 N.E.2d 896, 897 (Ind. 1995)). We do not reweigh the evidence or assess witness credibility. Id. The conviction will be affirmed unless we conclude that no
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reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Id. B. Intimidation

Johnson argues that there was insufficient evidence to prove intimidation because the statement that he was going to rip W.L.'s guts out was not a threat, but instead "was no more than a description of what he was doing." Appellant's Br. at 7. Further, Johnson contends that the statement was not related to any prior lawful act as required under the statute as charged. In order to convict Johnson for intimidation the State was required to put forth probative evidence that he: did communicate a threat to [W.L.], specifically, that he would "take her insides and rip them apart, so she wouldn't be able to have anymore children" with the intent that [W.L.] be placed in fear of retaliation for a prior lawful act, to wit: separating from [Johnson], and furthermore that [Johnson] did draw or use a deadly weapon while communicating said threat[.] Appellant's App. at 39; See IC 35-45-2-1. In Hall v. State, 837 N.E.2d 823, 827 (Ind. Ct. App. 2005), reh'g granted, trans. denied (2006), we found there was sufficient evidence to support the defendant's conviction for intimidation as a Class C felony because the defendant pulled out a deadly weapon right after making a threat without any break in the chain of events. Id. Further, the victim's instruction to leave the home and defendant's failure to comply, coupled with defendant's threat he was going to kill the victim was sufficient to establish that the threat was in relation to a prior lawful act, to wit: the victim's request that the defendant leave. Id. In Ransley v. State, 850 N.E.2d 443, 446 (Ind. Ct. App. 2006), a property dispute
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arose between two neighbors that escalated from a verbal altercation to pulling a handgun. In that case, we held that the State failed to prove that the defendant's threat was intended to place that victim in fear of retaliation for a prior lawful act. Id.

(emphasis added). We stated that, as charged, the defendant's threat was in relation to a future act that without the neighbor's permission would be an unlawful trespass. Id. Thus, the defendant could not be found guilty of intimidation. Here, the evidence presented at trial demonstrated that Johnson and W.L. were arguing about their relationship and that Johnson threatened and chastised W.L. for leaving him

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