                                                                                  FILED
                                                                             Dec 10 2018, 10:09 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                          Curtis T. Hill, Jr.
      Darren Bedwell                                            Attorney General of Indiana
      Marion County Public Defender –                           Matthew B. MacKenzie
      Appellate Division                                        Deputy Attorney General
      Indianapolis, Indiana                                     Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA
      Anthony T. Mickens,                                       December 10, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-698
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Peggy R. Hart,
      Appellee-Plaintiff.                                       Magistrate
                                                                Trial Court Cause No.
                                                                49G05-1704-F1-13417



      Mathias, Judge.


[1]   Following a bench trial in Marion Superior Court, Anthony T. Mickens

      (“Mickens”) was convicted of Level 3 felony criminal confinement resulting in

      serious bodily injury, Level 5 battery resulting in serious bodily injury, and

      Class A misdemeanor theft and sentenced to an aggregate term of fifteen years

      of incarceration. Mickens appeals and argues that the State failed to present
      Court of Appeals of Indiana | Opinion 18A-CR-698 | December 10, 2018                            Page 1 of 13
      evidence sufficient to support his conviction for Level 3 felony criminal

      confinement.

[2]   We affirm.


                                   Facts and Procedural History
[3]   The victim in this case, A.S., began dating Mickens in late 2016, and Mickens

      eventually moved in to A.S.’s apartment. A.S.’s roommate did not approve of

      how Mickens treated A.S. and gave her an ultimatum—either Mickens would

      have to leave or A.S. could move out with Mickens. A.S. chose the latter option

      and moved with Mickens to the home of E.S., the mother of two of Mickens’s

      children.

[4]   On February 4, 2017, one of Mickens’s friends, George, came over with

      another man.1 Soon thereafter, George and the other man confronted Mickens

      and cornered him near a door. A.S. told the two men not to harm Mickens, and

      approached George, who struck A.S. in the face, causing her to fall to the

      ground and injure her leg. A.S. asked Mickens to take her to the hospital, but he

      refused. The next day, A.S.’s leg had swollen to twice its original size, so she

      propped it up with a pillow and lay on the couch. Mickens told A.S. that, if she

      wanted to go to the hospital, she would have to find someone to take her, as he

      did not want any emergency vehicles coming to the house.



      1
       A.S. testified that this incident occurred on the Saturday before the Super Bowl in 2017. We take judicial
      notice of the fact that Super Bowl LI took place on Sunday, February 5, 2017. See
      http://www.espn.com/nfl/game/_/gameId/400927752 (last visited Nov. 20, 2018).

      Court of Appeals of Indiana | Opinion 18A-CR-698 | December 10, 2018                              Page 2 of 13
[5]   A.S. went to the hospital the following day, February 6, 2017. Tests revealed

      that A.S.’s leg had been broken in two separate places. When told by A.S. that

      the injury occurred during “events that happened at home,” Tr. Vol. 2., p. 193,

      the treating physician informed her that the emergency room was a safe place to

      discuss domestic violence, but A.S. did not provide any further detail. The

      physician placed a cast on A.S.’s leg and prescribed Norco, a narcotic analgesic.

[6]   Mickens went to the pharmacy to pick up A.S.’s prescriptions, and A.S. stayed

      at home with the children. When Mickens returned home, he argued with his

      daughter, and A.S. made dinner. When she gave Mickens a plate of food, he

      threw the plate at her face and called her a “bitch.” Id. at 235. This cut A.S.’s

      mouth. Mickens took A.S.’s pain medication, refused to give it to her, and

      stated that he was going to sell it. When E.S. came to the house, she could tell

      that A.S. had been crying and told Mickens to stop being mean to A.S. This

      request went unheeded.


[7]   At approximately 11:00 p.m. that night, Mickens attacked A.S. He struck her

      approximately eighteen times as he screamed at her. Mickens’s daughter sent

      E.S. a message asking her to call the police because her father was attacking

      A.S. Mickens saw this and took his daughter’s phone away and hid it. Mickens

      told A.S. to leave, but A.S. responded that she was the one watching the

      children. Furthermore, E.S. had told A.S. that the house belonged to her (E.S.)

      and that Mickens could not make A.S. leave. Mickens and his teenaged son

      began to throw A.S.’s belongings outside. Mickens even threw A.S.’s crutches

      outside and grabbed A.S. by her hair and dragged her outside down three stairs

      Court of Appeals of Indiana | Opinion 18A-CR-698 | December 10, 2018      Page 3 of 13
      onto the front lawn. Mickens then poured a can of beer on A.S. and stomped

      on her already-broken leg over a dozen times. A neighbor saw A.S. and

      attempted to help her but did not call the police for fear of becoming Mickens’s

      next target. Mickens dragged A.S. back inside, where he had sex with her. A.S.

      begged Mickens to call 911, but he refused.


[8]   The following morning, A.S. crawled to the bathroom and realized that her leg

      was so broken that a bone was almost protruding from her skin. Mickens agreed

      that A.S. would have to go to the hospital but again refused to allow A.S. to call

      911. When Mickens left the home later than morning, A.S. found the cell

      phone that Mickens had hidden from his daughter and called for an ambulance.

[9]   The paramedic and EMT who arrived with the ambulance saw A.S.’s

      belongings still strewn on the front yard. When they reached A.S., her leg was

      so broken it was “floppy,” and her foot was pointing in the wrong direction. Id.

      at 122. They also observed that a bone had almost broken through her skin.

      A.S. told the first responders that Mickens had stomped on her leg. The

      ambulance took A.S. to the hospital, where she was treated by the same

      physician who had seen her before. She noted that A.S.’s right ankle was

      “grossly deformed” and that A.S. was in “excruciating pain.” Id. at 179. By this

      time, a splintered piece of bone had punctured through A.S.’s skin, and her

      ankle mortise, where the ankle bones come together, was “totally destroyed.”

      Id. at 180. A.S. had to be anesthetized so that the physicians could perform a




      Court of Appeals of Indiana | Opinion 18A-CR-698 | December 10, 2018    Page 4 of 13
       “joint reduction.”2 Id. at 182–83. Following this, A.S. underwent two surgeries

       to repair the bones in her ankle and remained in the hospital for two weeks.

[10]   On April 12, 2017, the State charged Mickens with two counts of Level 1 felony

       rape, one count of Level 3 criminal confinement resulting in serious bodily

       injury, one count of Level 5 battery resulting in serious bodily injury, two

       counts of Class A misdemeanor battery resulting in bodily injury, one count of

       Class A misdemeanor theft, one count of Class A misdemeanor interfering with

       the reporting of a crime, and one count of Class A misdemeanor domestic

       battery. A bench trial was held on January 25, 2018, and, on February 7, 2018,

       the trial court entered an order finding Mickens guilty as charged, save the two

       counts of rape. The trial court later entered an amended order finding Mickens

       not guilty of interfering with the reporting of a crime.


[11]   At a sentencing hearing held on March 6, 2018, the court entered judgments of

       conviction for Level 3 felony criminal confinement, Class A misdemeanor

       battery resulting in bodily injury, and Class A misdemeanor theft and “merged”

       the remaining guilty findings, i.e., did not enter judgment of conviction on these

       findings. The court imposed a sentence of fifteen years on the criminal

       confinement conviction, and concurrent one-year sentences on the remaining

       two convictions. Mickens now appeals.




       2
        Joint reduction is performed “when you got a broken bone and the bone is no longer in alignment with the
       other portion of the bone. So generally you sedate the patient and you just pull it back into place, so that the
       bone is actually aligned.” Id. at 183.

       Court of Appeals of Indiana | Opinion 18A-CR-698 | December 10, 2018                                Page 5 of 13
                                               Standard of Review

[12]   On appeal, Mickens argues that the State presented insufficient evidence to

       support his conviction for criminal confinement resulting in serious bodily

       injury.3 Our standard of review on claims of insufficient evidence is well settled:

                  When reviewing a claim that the evidence is insufficient to
                  support a conviction, we neither reweigh the evidence nor judge
                  the credibility of the witnesses; instead, we respect the exclusive
                  province of the trier of fact to weigh any conflicting evidence. We
                  consider only the probative evidence supporting the [judgment]
                  and any reasonable inferences which may be drawn from this
                  evidence. We will affirm if the probative evidence and reasonable
                  inferences drawn from the evidence could have allowed a
                  reasonable trier of fact to find the defendant guilty beyond a
                  reasonable doubt.


       Harrison v. State, 32 N.E.3d 240, 247 (Ind. Ct. App. 2015), trans. denied (citing

       McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)).


                                           Discussion and Decision
[13]   A person who “knowingly or intentionally confines another person without the

       other person’s consent” commits the crime of criminal confinement. Ind. Code

       § 35-42-3-3(a). The word “confine” is defined to mean to “substantially interfere

       with the liberty of a person.” Ind. Code § 35-42-3-1. Criminal confinement is a

       Level 3 felony if “it results in serious bodily injury to a person other than the

       confining person.” Id. at § 3(b)(2)(B). “Serious bodily injury” is defined by



       3
           Mickens does not challenge the sufficiency of the evidence to support his convictions for battery or theft.

       Court of Appeals of Indiana | Opinion 18A-CR-698 | December 10, 2018                                  Page 6 of 13
       statute to mean “bodily injury that creates a substantial risk of death or that

       causes: . . . (3) extreme pain; [or] (4) permanent or protracted loss or

       impairment of the function of a bodily member or organ[.]” Ind. Code § 35-

       31.5-2-292.


[14]   Here, in its charging information, the State tracked this statutory language and

       alleged that Mickens “did knowingly or intentionally confine [A.S.] without the

       consent of [A.S.], said act resulting in serious bodily injury to [A.S.], to wit:

       extreme pain and/or unconsciousness.” Appellant’s Confidential App. p. 47.

[15]   Mickens argues the evidence of injury to A.S. does not give rise to an inference

       of confinement. Mickens acknowledges that there was evidence that he

       committed a battery but argues that A.S.’s injuries were not the result of any

       confinement, writing “Mickens did not cause [A.S.]’s second set of fractures by

       ejecting her from the house and dragging her into the front yard, but by the

       battery he committed once she was there.” Appellant’s Br. at 16.


[16]   Mickens appears to argue that there was insufficient evidence to show that he

       confined A.S. and that there was insufficient evidence to show that any

       confinement resulted in serious bodily injury to A.S. To the extent that Mickens

       argues that there was no evidence that he confined A.S., he is mistaken.

[17]   Mickens cites McFadden v. State, 25 N.E.3d 1271 (Ind. Ct. App. 2015), in

       support of his argument. In that case, the victim was standing outside an

       apartment complex talking with a resident when the defendant’s stepfather

       approached him and hit him in the head. Id. at 1272. The stepfather also pulled

       Court of Appeals of Indiana | Opinion 18A-CR-698 | December 10, 2018        Page 7 of 13
       the victim’s hair and struck him in the face, at which point the victim fell to the

       ground. Id. The defendant and another man then approached and began to

       push, hit, and kick the victim. Id. The defendant also grabbed the victim’s hair.

       Id. at 1272–73. The defendant was convicted of Class B felony criminal

       confinement and Class B felony battery.


[18]   McFadden argued on appeal that the evidence was insufficient to support his

       conviction because, he claimed, there was no evidence that he forcibly removed

       the defendant from one place to another. At the time McFadden committed his

       offenses, the confinement statute provided that the offense could be committed

       by either confining a person against his or her will, or by “remov[ing] another

       person, by fraud, enticement, force, or threat of force, from one (1) place to

       another[.]” Ind. Code § 35-42-3-3(a)(2) (2012). The McFadden court noted that

       Indiana courts had held that “to prove confinement beyond the main crime

       charged, there must be something more than the act necessary to effectuate the

       crime, albeit, rape, theft, escape or battery.” 25 N.E.3d at 1274 (citations

       omitted). The McFadden court then held:


               Our review of the record reveals no independent evidence
               beyond McFadden’s battery of [the victim]—which was
               established by evidence that McFadden pushed, hit, and kicked
               [the victim] and pulled his hair—that would support a conviction
               for criminal confinement. Not only is there no direct evidence of
               confinement, [the victim] never testified that he felt confined.
               And the mere fact that [the victim] was injured during the battery
               does not mean that he was confined.


       Id. at 1275.

       Court of Appeals of Indiana | Opinion 18A-CR-698 | December 10, 2018      Page 8 of 13
[19]   Mickens argues that the same is true here, i.e., that the fact that there was

       evidence that he stomped on A.S.’s leg does not support a finding of

       confinement. We do not think that McFadden is controlling here.


[20]   First, the criminal confinement statute has been amended to remove the

       “removal” subsection, and Mickens was charged with “confining” A.S. without

       her consent, not removing her from one place to another. The holding in

       McFadden is distinguishable for this reason alone. More importantly, however,

       here there was evidence other than the battery that Mickens confined A.S.

       Specifically, there was evidence that Mickens threw a plate at A.S. and told her

       to leave the house. She refused because she was watching the children and

       because E.S. had informed her that Mickens could not make her leave. Mickens

       responded by throwing A.S.’s belongings on the front lawn, grabbing her by the

       hair, and dragging her outside onto the lawn. After pouring a beer on her and

       stomping on her already-broken leg, Mickens then grabbed A.S. and dragged

       her back to the front door. From this evidence, and not merely the act of

       stomping on A.S.’s leg, the trial court, acting as the trier of fact, could

       reasonably conclude that Mickens substantially interfered with A.S.’s liberty

       without her consent.4


[21]   To the extent that Mickens argues that the evidence was insufficient to show

       that his confinement of A.S. resulted in serious bodily injury to A.S., we again



       4
         The fact that the State argued at trial that the confinement consisted of Mickens’s act of stomping on A.S.’s
       leg did not limit the trial court’s ability to find Mickens guilty for any reason supported by the evidence.

       Court of Appeals of Indiana | Opinion 18A-CR-698 | December 10, 2018                               Page 9 of 13
       disagree. In support of this argument, Mickens cites State v. Greene, 16 N.E.3d

       416 (Ind. 2014), an appeal from the grant of post-conviction relief.

[22]   In Greene, the petitioner argued that he had received ineffective assistance of

       counsel because his trial and appellate counsel had failed to cite what he

       believed to be controlling precedent that would establish that the evidence was

       insufficient as a matter of law to support his conviction for criminal

       confinement. Greene had been convicted of inter alia Class B felony criminal

       confinement for a prolonged incident spanning two days during which he

       terrorized his girlfriend and held her captive in their shared apartment. While in

       their bedroom, Greene strangled his victim until she lost consciousness, and

       when she regained consciousness, she was on a couch in their living room.

       After his convictions were affirmed on direct appeal, Greene successfully

       sought post-conviction relief, and the State appealed.

[23]   On transfer to our supreme court, Greene argued that he was entitled to relief

       under Long v. State, 743 N.E.2d 253 (Ind. 2001). The Greene court summarized

       the holding in Long as follows:


               Long insisted that although there was evidence that his victim []
               suffered fractured facial bones, there was no evidence that these
               injuries resulted from her being forcefully removed from one
               place to another. Without such evidence, he reasoned, there was
               insufficient evidence to establish the serious bodily injury
               enhancement. The State countered that “the jury could have
               inferred that [the victim]’s injuries to her nose and eye socket
               were caused during her movement from one place to another”
               but did not identify any evidence as proof. On review, we found
               that “the evidence was insufficient to establish that the conduct
       Court of Appeals of Indiana | Opinion 18A-CR-698 | December 10, 2018     Page 10 of 13
               constituting the charged offense of criminal confinement resulted in
               serious bodily injury.”

               Crucially, “the charged offense” was that (1) Long (2) knowingly
               or intentionally (3) removed the victim from one place to another
               (4) by force. Ind. Code § 35-42-3-3. At issue were elements three
               and four, and without identifying the circumstances under which
               [the victim] sustained facial fractures, the State could not
               establish beyond a reasonable doubt that [the victim]’s serious
               bodily injury occurred during her forcible removal from one place
               to another. This was likely attributable to the facts of the case:
               Long and two others confined [the victim] for possibly longer
               than one week in an attic, and in the course of her captivity and
               murder, inflicted numerous injuries upon her. Under these
               circumstances, the State was likely unable to isolate precisely
               when [the victim] sustained her fractures. Thus, the jury was
               unable to find that serious bodily injury resulted from her forcible
               removal.


       16 N.E.3d at 420 (citing Long, 743 N.E.2d at 259–60, 262) (emphasis added in

       Greene).


[24]   The Greene court found Long to be factually distinguishable because the victim

       in Greene’s trial testified that Greene strangled her until she was unconscious.

       Thus, “the jury could have reasonably inferred that Greene’s act of force,

       strangulation, both facilitated his removal of [the victim] from their bedroom to

       their living room and resulted in serious bodily injury to her.” Id. The Greene

       court held that, unlike in Long, the evidence here supported the State’s

       contention that the defendant’s knowing or intentional removal of the victim

       from one place to another by force resulted in serious bodily injury to the

       victim. Id. at 420–21.

       Court of Appeals of Indiana | Opinion 18A-CR-698 | December 10, 2018       Page 11 of 13
[25]   The Greene court further rejected Greene’s claim that Long held that the State

       was required to prove that the victim’s serious bodily injury was caused during

       the victim’s movement from one place to another.5 Instead, the court held that,

       although there must be a “temporal link” between the inducement and the

       removal “so as to constitute one incident,” the court did not interpret the

       confinement statute so narrowly as to “require the serious bodily injury to be

       suffered by the victim during the actual act of removal from one place to

       another.” Id. at 421 (emphasis added). After reviewing Long and a similar case,

       the Greene court ultimately held that “serious bodily injury to the victim must be

       sustained during the charged offense of criminal confinement . . . . Thus, the

       victim must suffer serious bodily injury as the result of the act of forcible

       removal, whether or not the act of force occurs simultaneously with the act of

       removal.” Id. at 423.


[26]   In the present case, the evidence presented at trial shows that Mickens dragged

       A.S. by her hair to the front yard, thereby confining her, repeatedly stomped on

       her already-broken leg, and then dragged her back to the front door, again

       confining her. Thus, there was, in the words of the Greene court, a “temporal

       link” between the injury and the confinement such that they constituted one

       incident. Indeed, here, the order of events could be viewed as confinement,

       injury, and additional confinement. Thus, the injury did occur during the

       incident of confinement, and the evidence is sufficient to support Mickens’s


       5
        As in McFadden, Greene’s acts of confinement took place when the confinement statute contained the
       “removal” subsection.

       Court of Appeals of Indiana | Opinion 18A-CR-698 | December 10, 2018                        Page 12 of 13
       conviction for Level 3 felony criminal confinement resulting in serious bodily

       injury.


                                                  Conclusion

[27]   We hold that the evidence was sufficient to support Mickens’s conviction for

       confinement resulting in serious bodily injury. First, Mickens grabbed A.S. by

       the hair and dragged her onto the front lawn, where he poured beer on her and

       stomped on her broken leg, and eventually dragged her back to the front door.

       Thus, Mickens substantially interfered with A.S.’s liberty without her consent.

       Furthermore, the evidence showed that during this incident of confinement,

       Mickens seriously injured A.S.’s already-broken leg by repeatedly stomping on

       it. Thus, the State adequately proved that the criminal confinement resulted in

       serious bodily injury to A.S. We therefore affirm the judgment of the trial court.


[28]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-698 | December 10, 2018    Page 13 of 13
