Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                Jun 17 2014, 10:07 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

   ATTORNEY FOR APPELLANT:                               ATTORNEYS FOR APPELLEE:

   STACY R. ULIANA                                       GREGORY F. ZOELLER
   Bargersville, Indiana                                 Attorney General of Indiana

                                                         JOSEPH Y. HO
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                   IN THE
                         COURT OF APPEALS OF INDIANA

   CORNELIUS HINES,                                      )
                                                         )
           Appellant-Defendant,                          )
                                                         )
                   vs.                                   )      No.52A05-1312-CR-594
                                                         )
   STATE OF INDIANA,                                     )
                                                         )
           Appellee-Plaintiff.                           )


                          APPEAL FROM THE MIAMI SUPERIOR COURT
                              The Honorable Daniel C. Banina, Judge
                                 Cause No. 52D02-1209-FC-236


                                               June 17, 2014

                    MEMORANDUM DECISION - NOT FOR PUBLICATION

   FRIEDLANDER, Judge
       Following a jury trial, Cornelius Hines was convicted of Count 1, Criminal

Confinement1 as a class C felony, and Count 2, Battery2 as a class D felony. Hines now

appeals, presenting two issues for our review:

       1. Do Hines’s convictions for battery and criminal confinement violate Indiana’s
          double-jeopardy protections?

       2. Is the sentence imposed inappropriate?

       We affirm.

       On August 28, 2012, while incarcerated at the Miami Correctional Facility, Hines

attacked Regina Bougher, a correctional officer at the facility. Hines charged at Officer

Bougher with his head and shoulder, striking her in the ribs. This action caused bruising

and pain in Officer Bougher’s ribs. Hines then restrained Officer Bougher by pinning her

right arm to the wall, grabbing her face with his other hand, and using the weight of his

body to immobilize her. The attack was subsequently broken up when Officer Bougher

was able to radio for help.       Following the incident, Officer Bougher was medically

unable to return to work for a number of months.

       On September 26, 2012, the State charged Hines with criminal confinement and

battery. Following a jury trial, Hines was found guilty as charged. The trial court

sentenced him to concurrent terms of eight years on the confinement conviction and three

years on the battery conviction. Hines now appeals.

                                                1.

1
  Ind. Code Ann. § 35-42-3-3 (West, Westlaw current with all legislation of the Second Regular
Session of the 118th General Assembly (2014) with effective dates through May 1, 2014).
2
  I.C. § 35-42-2-1 (West, Westlaw current with all legislation of the Second Regular Session of
the 118th General Assembly (2014) with effective dates through May 1, 2014).
                                               2
       Hines argues that his convictions for criminal confinement and battery violate the

Indiana double jeopardy clause. Specifically, Hines argues that the convictions violate

the actual-evidence test of the double jeopardy clause.

       Double-jeopardy claims arising under the Indiana Constitution are evaluated

utilizing a two-part test, pursuant to which multiple offenses are the same offense in

violation of article 1, section 14, “if, with respect to either the statutory elements of the

challenged crimes or the actual evidence used to convict, the essential elements of one

challenged offense also establish the essential elements of another challenged offense.”

Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). To prevail under the actual-evidence

test, Hines must demonstrate that there is a reasonable possibility that the evidentiary

facts used by the jury to establish the essential elements of one of his offenses may also

have been used to establish all the essential elements of the other. See Davis v. State, 770

N.E.2d 319 (Ind. 2002). In applying the actual-evidence test, we must ‘“identify the

essential elements of each of the challenged crimes and … evaluate the evidence from the

jury’s perspective.”’ Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008) (quoting Spivey v.

State, 761 N.E.2d 831, 832 (Ind. 2002)). The “reasonable possibility” standard “requires

substantially more than a logical possibility” and “turns on a practical assessment of

whether the jury may have latched on to exactly the same facts for both convictions.” Id.

at 1236. “In determining what facts were used to support each conviction, we will

consider the evidence, charging information, final jury instructions, and arguments of

counsel.” Cole v. State, 967 N.E.2d 1044, 1050-1051 (Ind. Ct. App. 2012).



                                             3
       Here, the evidentiary facts used to establish the confinement conviction were

separate and distinct from those used to establish the battery conviction. To establish the

battery conviction, the State presented evidence that Hines lunged toward Officer

Bougher, striking her in the ribs with his head and shoulder.            Officer Bougher

experienced pain and bruising in her ribs.        To establish the criminal-confinement

conviction, the State presented evidence that Hines pinned Officer Bougher against the

wall with the use of his arms and body. Officer Bougher testified in detail about how

Hines pinned her right arm to the wall and she was not able to move. She received

bruising on her right arm from the confinement.

       Moreover, in the State’s opening statement, the State described the incident saying

that Hines

       [t]hen lunges at Officer Bougher putting his shoulder and head into her
       ribcage causing pain. He continues on with his violent act and pins her up
       against a concrete wall where he restrains her right arm, secures her left
       arm and puts another hand over her face where she cannot move and then
       strikes her head at least two times against a concrete wall.

Transcript at 125. In its closing argument, the State again made a distinction in the

evidence, noting that,

       [Hines] did so by lunging and initially striking [Officer Bougher] in the
       ribcage with his head and shoulder…. The assault continued whereby he
       pins her up against the wall placing one of her arms up against the wall,
       taking his other arm and ultimately having it across her face, pressing his
       body against hers, making her immobile as he bangs her head on the
       concrete wall.

Id. at 195-96.




                                            4
         Based on the evidence as presented by the State, we find there is no reasonable

possibility the jury relied on the same evidence to convict Hines of both offenses. We

therefore conclude that double-jeopardy protections were not violated when the trial court

convicted Hines of both criminal confinement and battery.

         Hines next argues that the convictions for criminal confinement and battery cannot

stand under the continuing crime doctrine, which is a category of Indiana’s prohibition

against double jeopardy. “The continuing crime doctrine essentially provides that actions

that are sufficient in themselves to constitute separate criminal offenses may be so

compressed in terms of time, place, singleness of purpose, and continuity of action as to

constitute a single transaction.” Walker v. State, 932 N.E.2d 733, 735 (Ind. Ct. App.

2010).     The continuing crime doctrine is applicable in two situations: (1) when a

defendant is charged multiple times with the same offense, see Haggard v. State, 445

N.E.2d 969 (Ind. 1983) (multiple convictions of criminal confinement); or (2) when a

defendant is charged with an offense and a lesser included offense, see Taylor v. State,

879 N.E.2d 1198 (Ind. Ct. App. 2008).

         The facts do not place this case in either category to which the continuous crime

doctrine applies. Hines was not convicted of multiple charges of criminal confinement or

battery, nor is criminal confinement a lesser included offense of battery, or vice versa.

Battery and confinement were two distinct chargeable crimes that occurred at different

times. Battery occurred the moment Hines lunged toward Officer Bougher and hit her in

the ribs with his head and shoulder. The confinement occurred when Hines thereafter



                                              5
pinned Officer Bougher with his arms and body against the wall and prevented her from

moving. Thus, the continuing crime doctrine is not applicable.

      Finally, Hines argues that his convictions violate double-jeopardy protections

because both the enhancement of battery to a class D felony and the enhancement of

confinement to a class C felony are supported by the same bodily injury, i.e., Officer

Bougher’s pain.

      The crime of criminal confinement is enhanced to a class C felony if “it results in

bodily injury to a person other than confining or removing person.” I.C. § 35-42-3-

3(b)(1). The crime of battery is enhanced to a class D felony if there is bodily injury to

“an employee of a penal facility or a juvenile detention facility while the employee is

engaged in the execution of the employee’s official duty.” I.C. § 35-42-2-1(a)(2)(J).

Bodily injury is defined as “any impairment of physical condition, including physical

pain.” Ind. Code Ann. § 35-31.5-2-29 (West, Westlaw current with all legislation of the

Second Regular Session of the 118th General Assembly (2014) with effective dates

through May 1, 2014).

      Hines’s battery conviction is based on his actions when he lunged at Officer

Bougher with his head and shoulder, causing pain and bruising in her ribs. In order to

confine Officer Bougher, Hines used both his hands and body to pin her body to the wall,

causing pain and bruising to Officer Bougher’s right arm. The enhancements of each

conviction are based on separate injuries and thus there is no violation of double

jeopardy.

                                             2.

                                            6
       Finally, Hines argues that his sentence of eight years for criminal confinement and

three years for battery is inappropriate in light of the nature of the offense and his

character. Article 7, section 4 of the Indiana Constitution grants our Supreme Court the

power to review and revise criminal sentences. Pursuant to App. R. 7, the Supreme Court

authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d 1219 (Ind.

2008). Per App. R. 7(B), we may revise a sentence “if, after due consideration of the trial

court’s decision, the Court finds that the sentence is inappropriate in light of the nature of

the offense and the character of the offender.” Wilkes v. State, 917 N.E.2d 675, 693 (Ind.

2009). Nevertheless, “we must and should exercise deference to a trial court’s sentencing

decision, both because Rule 7(B) requires us to give ‘due consideration’ to that decision

and because we understand and recognize the unique perspective a trial court brings to its

sentencing decisions.” Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007).

       Whether we regard a sentence as inappropriate “turns on our sense of the

culpability of the defendant, the severity of the crime, the damage done to others, and

myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d

1219, 1224 (Ind. 2008). Furthermore, “[t]he principal role of appellate review should be

to attempt to leaven the outliers, and identify some guiding principles for trial courts and

those charged with improvement of the sentencing statutes, but not to achieve a perceived

‘correct’ result in each case.” Id. at 1225. Accordingly, “the question under Appellate

Rule 7(B) is not whether another sentence is more appropriate; rather, the question is

whether the sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind.

Ct. App. 2008) (emphasis in original).

                                              7
       Hines was convicted of a class D felony battery, for which the sentencing range is

half a year to three years, with an advisory sentence of one and a-half years. See Ind.

Code. Ann. § 35-50-2-6 (West, Westlaw current with all legislation of the Second

Regular Session of the 118th General Assembly (2014) with effective dates through May

1, 2014). Hines received a maximum three-year sentence for battery. In addition, Hines

was convicted of a class C felony criminal confinement, for which the sentencing range is

two to eight years, with an advisory sentence of four years. See I.C. § 35-50-2-7 (West,

Westlaw current with all legislation of the Second Regular Session of the 118th General

Assembly (2014) with effective dates through May 1, 2014). Hines was sentenced to

concurrent, maximum terms of three years for battery and eight years for criminal

confinement, for a total aggregate sentence of eight years.

       Considering the nature of the offense, we note that Hines, a six-foot, fully-grown

male, attacked Officer Bougher, a five-foot female, while incarcerated at the Miami

Correctional Facility. Without warning, he lunged at the officer, hitting her in the ribs,

and then he pinned her against the wall with the weight of his whole body. As to the

character of the offender, Hines argues that his abusive childhood and mental-health

issues should be considered mitigating factors in his sentencing. Although we recognize

Hines’s past of mental-health issues and self-reported history of physical and mental

abuse as a child in the foster care system, we also note Hines’s previous criminal record

includes a conviction for rape. The present offenses also demonstrate his violent nature.

Moreover, he continues to reoffend while incarcerated and was on probation at the time

of his offenses.

                                             8
      The trial court concluded, “in weighing the two together I think that the prior

criminal record and the type of offenses he’s committed outweigh any mitigating factor.”

Transcript at 213. We agree with the trial court’s analysis. Hines’s sentence is not

inappropriate.

      Judgment affirmed.

MATHIAS, J., and PYLE, J., concur.




                                           9
