                                                                            Feb 03 2015, 9:52 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      R. Patrick Magrath                                         Gregory F. Zoeller
      Madison, Indiana                                           Attorney General of Indiana

                                                                 William Hackl Brainard
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Dustin McFadden                                           February 3, 2015

      Appellant-Defendant,                                      Court of Appeals Cause No.
                                                                39A01-1404-CR-162
              v.                                                Appeal from the Jefferson Circuit
                                                                Court, The Honorable Darrell M.
                                                                Auxier, Judge
      State of Indiana,                                         Cause No. 39C01-1308-FB-846
      Appellee-Plaintiff




      Vaidik, Chief Judge.



                                           Case Summary
[1]   Dustin McFadden was convicted of Class B felony criminal confinement and

      Class B misdemeanor battery. The trial court sentenced McFadden to six

      months for battery and fourteen years for criminal confinement. McFadden

      now appeals, challenging the sufficiency of evidence underlying his criminal-

      Court of Appeals of Indiana | Opinion 39A01-1404-CR-162 | February 3, 2015                   Page 1 of 8
      confinement conviction. He also argues that his sentence for criminal

      confinement is inappropriate. Because there is no independent evidence to

      establish confinement beyond the evidence used to establish that McFadden

      committed battery, we conclude that the evidence is insufficient to support

      McFadden’s criminal-confinement conviction. We therefore reverse and

      remand with instructions.



                               Facts and Procedural History
[2]   In August 2013 McFadden attended a birthday party for his fiancée’s child.

      The party took place at the apartment complex where McFadden lived. John

      Taulbee was also at the apartment complex that day. Taulbee and McFadden

      knew each other; Taulbee had testified against McFadden’s sister in an

      unrelated criminal case. Taulbee was visiting another resident of the apartment

      complex. Tr. p. 126.


[3]   Taulbee was standing outside talking to the resident when Gary Gibson,

      McFadden’s stepfather, approached and hit him in the head three times.1 Id. at

      132. Gibson then grabbed Taulbee’s ponytail and struck him in the face,

      causing Taulbee to fall and hit his head on the pavement. McFadden and a

      third man approached and began pushing, hitting, and kicking Taulbee. Id. at

      136, 139, 265. McFadden also grabbed Taulbee’s hair. Id. at 136, 138, 265.




      1
          Gibson was McFadden’s co-defendant at trial.

      Court of Appeals of Indiana | Opinion 39A01-1404-CR-162 | February 3, 2015   Page 2 of 8
      The men yelled, “We said we’d get you and we got you,” and called Taulbee a

      “snitch” while they battered him. Id. at 139, 247, 295.


[4]   Taulbee suffered significant injuries and was hospitalized for four days. Id. at

      143. Doctors treated Taulbee for a fractured nose, subdural hematoma, an

      abrasion to the back of his head, and a contusion near his left eye. See id. at

      342-46, 355. Taulbee’s nose required surgery and his injuries compromised his

      vision in his left eye for a period of time. Id. at 143-45. At trial, Taulbee

      testified that the pain he suffered as a result of the battery was greater than a

      past accident in which he lost his thumb in a shear press. Id. at 143 (“[I]’d

      rather have my thumb get cut off again.”).


[5]   The State charged McFadden with Class B felony aggravated battery, two

      counts of Class B felony criminal confinement, and Class C felony battery

      resulting in serious bodily injury. Appellant’s App. p. 81-83 (charging

      informations). A jury found McFadden guilty of one count of Class B felony

      criminal confinement and two counts of Class C felony battery resulting in

      serious bodily injury.2 Id. at 245, 247-48. The trial court vacated one of

      McFadden’s Class C felony battery convictions to avoid a double-jeopardy

      violation. Still concerned that McFadden’s convictions for Class C felony

      battery and Class B felony criminal confinement violated double jeopardy, the

      trial court reduced McFadden’s remaining battery conviction to a Class B




      2
       The jury found McFadden guilty of a second count of Class C felony battery resulting in serious bodily
      injury as a lesser-included offense of Class B felony aggravated battery. See Appellant’s App. p. 245.

      Court of Appeals of Indiana | Opinion 39A01-1404-CR-162 | February 3, 2015                       Page 3 of 8
      misdemeanor. See id. at 251-54. In its Judgment of Conviction, the court also

      expressed concern about McFadden’s criminal-confinement conviction:

              Criminal Confinement requires that the victim be removed from one
              place to another. The charging information merely alleges that
              [McFadden] removed the victim, not that the victim was removed
              from one place to another. Furthermore, the Court is skeptical that
              pulling one to the ground and battering them equates to removing a
              victim from one place to another. If such were the case, merely
              pushing someone down would constitute Criminal Confinement, a
              Class D felony. The jury has spoken however and the Court will leave
              it to the Court of Appeals to resolve this issue if it is raised on appeal.


      Id. at 252.


[6]   The trial court sentenced McFadden to a six-month executed sentence for

      battery and a fourteen-year executed sentence for criminal confinement, to run

      concurrently.


      McFadden now appeals.



                                  Discussion and Decision
[7]   McFadden challenges the sufficiency of the evidence underlying his conviction

      for Class B felony criminal confinement. He also argues that his fourteen-year

      sentence for criminal confinement is inappropriate.


[8]   When we review the sufficiency of the evidence, we do not reweigh evidence or

      assess witness credibility. Cunningham v. State, 870 N.E.2d 552, 553 (Ind. Ct.

      App. 2007) (citations omitted). We consider only the probative evidence and


      Court of Appeals of Indiana | Opinion 39A01-1404-CR-162 | February 3, 2015            Page 4 of 8
      reasonable inferences that support the trier of fact’s conclusion that the

      defendant is guilty beyond a reasonable doubt. Id. If there is evidence of

      probative value from which a rational trier of fact could infer guilt beyond a

      reasonable doubt, we will affirm the conviction. Id.


[9]   At the time McFadden committed the underlying offenses, Indiana’s criminal-

      confinement statute provided, in relevant part, that:

              (a) A person who knowingly or intentionally:

                   (1) confines another person without the other person’s consent; or

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

              commits criminal confinement. Except as provided in subsection (b),
              the offense of criminal confinement is a Class D felony.

              (b) The offense of criminal confinement defined in subsection (a) is:

                                        *        *        *       *        *

                   (2) a Class B felony if it:

                                        *        *        *       *        *

              (B) results in serious bodily injury to a person other than the confining
              or removing person . . . .

      Ind. Code Ann. § 35-42-3-3 (West 2012). The statute contemplates two types of

      criminal confinement: confinement by non-consensual restraint and

      confinement by forcible removal. See State v. Greene, 16 N.E.3d 416, 419-20

      (Ind. 2014). McFadden was charged with and convicted of confinement by

      forcible removal resulting in serious bodily injury. See Appellant’s App. p. 82.



      Court of Appeals of Indiana | Opinion 39A01-1404-CR-162 | February 3, 2015          Page 5 of 8
[10]   McFadden’s sufficiency argument is two-fold. First, he argues that he did not

       forcibly remove Taulbee from one place to another. Second, he argues that

       Taulbee did not suffer serious bodily injury.


[11]   Our Supreme Court addressed what constitutes removal “from one place to

       another” under Section 35-42-3-3 in Brown v. State, 868 N.E.2d 464 (Ind. 2007).

       The word “remove” as used in the statute means “that it is unlawful to cause

       another person to move from a place or location for specified improper

       reasons.” Brown, 868 N.E.2d at 468. The Court has also rejected the argument

       that moving a victim only a few feet is insufficient to sustain a conviction for

       criminal confinement, recognizing that the statute does not provide exceptions

       that depend on how far a person is moved. Cornelius v. State, 508 N.E.2d 548,

       549 (Ind. 1987). Thus, the term “remove” is not defined by the amount of

       distance the victim is moved or whether the victim is moved to a “distinct

       area.” See id. Yet the offense of confinement requires proof of a “substantial

       interference” with a person’s liberty without the person’s consent, and “our

       courts of appeal have held that in order 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.” Cunningham, 870

       N.E.2d at 553-54 (citing McDonald v. State, 511 N.E.2d 1066, 1068 (Ind.

       1987); Stover v. State, 621 N.E.2d 664, 668 (Ind. Ct. App. 1993); Sammons v.

       State, 397 N.E.2d 289, 294 (Ind. Ct. App. 1979)).


[12]   Mindful of these principles, we conclude that the evidence is insufficient to

       support McFadden’s conviction for Class B felony criminal confinement. Our

       Court of Appeals of Indiana | Opinion 39A01-1404-CR-162 | February 3, 2015   Page 6 of 8
       review of the record reveals no independent evidence beyond McFadden’s

       battery of Taulbee—which was established by evidence that McFadden pushed,

       hit, and kicked Taulbee and pulled his hair—that would support a conviction

       for criminal confinement. Not only is there no direct evidence of confinement,

       Taulbee never testified that he felt confined. And the mere fact that Taulbee

       was injured during the battery does not mean that he was confined. See id. at

       554 (“An inference of confinement does not arise from evidence of injury to the

       victim.”). We therefore reverse and remand to the trial court with instructions

       to vacate McFadden’s conviction for Class B felony criminal confinement.


[13]   Because McFadden’s conviction for Class B felony criminal confinement will

       be vacated, the double-jeopardy concern that led the court to reduce

       McFadden’s conviction for Class C felony battery resulting in serious bodily

       injury to a Class B misdemeanor no longer exists, and we order the trial court

       to reinstate McFadden’s conviction for Class C felony battery resulting in

       serious bodily injury. See Johnson v. State, 925 N.E.2d 793, 795 (Ind. Ct. App.

       2010) (“[W]e have the authority to reinstate one of the other two vacated

       counts on which the trial court found Johnson guilty if the evidence is sufficient

       to support it.”) (citing Taflinger v. State, 698 N.E.2d 325, 328 (Ind. Ct. App.

       1998)), trans. denied.


[14]   Because we order this conviction reinstated, we address McFadden’s claim—

       although raised only in the criminal-confinement context —that Taulbee did

       not suffer serious bodily injury.



       Court of Appeals of Indiana | Opinion 39A01-1404-CR-162 | February 3, 2015   Page 7 of 8
[15]   Serious bodily injury includes bodily injury that causes extreme pain. See Ind.

       Code § 35-31.5-2-292; see also Erkins v. State, 13 N.E.3d 400, 407 (Ind. 2014).

       Here, the State alleged that Taulbee’s injuries caused him extreme pain, see

       Appellant’s App. p. 82, and the evidence is sufficient to support this allegation.

       The evidence shows that during the battery, Taulbee fell to the ground and hit

       his head on the pavement. He suffered a fractured nose, subdural hematoma—

       also known as bleeding in the brain—an abrasion to the back of his head, and a

       contusion near his left eye. Taulbee was hospitalized for four days, his nose

       required surgery, and his injuries compromised his vision in his left eye for a

       period of time. At trial, Taulbee testified that the pain he suffered as a result of

       the battery was greater than a past accident in which he lost his thumb in a

       shear press. The jury could reasonably conclude from this evidence that

       Taulbee suffered extreme pain.


[16]   In summary, we remand to the trial court with instructions to vacate

       McFadden’s conviction for Class B felony criminal confinement, reinstate his

       conviction for Class C felony battery resulting in serious bodily injury, and

       sentence McFadden accordingly.


       Reversed and remanded with instructions.


       Baker, J., and Riley, J., concur.




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