Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                   Aug 08 2012, 9:07 am
court except for the purpose of
establishing the defense of res judicata,                          CLERK
                                                                 of the supreme court,
collateral estoppel, or the law of the case.                     court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

MATTHEW D. BARRETT                              GREGORY F. ZOELLER
Matthew D. Barrett, P.C.                        Attorney General of Indiana
Logansport, Indiana
                                                JODI KATHRYN STEIN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DEREK PATTON,                                   )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 09A02-1111-CR-1046
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                      APPEAL FROM THE CASS SUPERIOR COURT
                        The Honorable Richard A. Maughmer, Judge
                              Cause No. 09D02-1108-FB-28



                                      August 8, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Appellant-defendant Derek Patton appeals his convictions for Criminal

Confinement,1 a class B felony, and Aggravated Battery,2 a class B felony, raising various

evidentiary errors. Patton also challenges the sufficiency of the evidence and argues that

Indiana’s Double Jeopardy Clause prohibits convictions for both offenses. Concluding

that there was no double jeopardy violation and finding no other error, we affirm the

judgment of the trial court.

                                                  FACTS

          Sometime during the evening of July 28, 2011, Patton and his girlfriend, April

Burris, went drinking with friends at various bars in Logansport. Patton and Burris had

known each other since childhood, had recently become engaged to each other, and were

living together.

          When Burris and Patton returned to their apartment complex, Patton, who was

intoxicated, became angry and began to hit Burris in the face in the front yard. As the

two moved into the building where they shared an apartment, Patton continued striking

Burris in the face. Smears of blood were left on the hallway light switch. Patton refused

to allow Burris to leave the apartment and she lost consciousness at some point during the

episode.

          The apartment showed additional signs of the altercation. For instance, blood was

left on a towel that Burris had used to clean up, and blood from the beating was found on


1
    Ind. Code § 35-42-3-3(a)(1); I.C. § 35-42-3-3(b)(2)(B).
2
    I.C. § 35-42-2-1.5.
                                                      2
the door molding, the bathroom floor, and the shirt and shorts that Burris was wearing

that night. A large hole in the bathroom wall had blood around it and long hair stuck in

it. As Burris later described, the apartment had “blood everywhere” and looked like

someone had been “murdered” there. State’s Ex. 29.

       Patton also showed physical signs of the beating. For instance, both of his hands

had fresh injuries to his knuckles, and his shorts had blood on them. After hitting Burris

numerous times, Patton ordered her to shower and clean herself off. Patton then left the

bathroom to use the phone. Burris, who was naked, fled out the backdoor of the

apartment and stole a beach towel from a neighbor to wrap around herself.

       A short time later, Evan Clem, who lived nearly two blocks away, found Burris

lying in his driveway. Burris was naked but for the towel that was wrapped around her.

She was lying on her stomach partially under a truck. Burris told Clem that she had been

beaten and asked him to call the police for her, which he did. Burris stood up and started

to walk back toward Broadway Street. Burris was still bleeding from her facial injuries at

the time.

       A few minutes later, Logansport Police Officer John Rogers intercepted Burris as

she was walking down the street. Officer Rogers noticed that Burris was distraught,

crying, and afraid. Burris reported that when she and Patton returned from one of the

bars, he “beat the hell” out of her. Tr. p. 73, 88, 223. Officer Rogers observed that

Burris had sustained a cut to her face and had scratches and redness around her neck.



                                            3
Burris reported that her throat hurt and was having problems swallowing. As a result,

Officer Rogers called for medics.

       Sergeant Travis Yike also arrived on the scene and saw Burris’s facial injuries.

Sergeant Yike knocked on the apartment door several times before Patton answered it.

Patton was still wearing his bloody shorts and was highly intoxicated. However, Patton

told the officers that he had been asleep. Sergeant Yike observed blood in the apartment

and noticed the fresh injuries to Patton’s hands. Patton reported to one of the officers that

he did not know what had happened to Burris, that he had been at the bar, came home,

and “passed out.” Tr. 238.

       Burris was transported to Logansport Memorial Hospital, where she reported the

beating to Lana Stout, a registered nurse, and Dr. Kevin O’Brien. Burris told them that

she had become dazed during the beating and could not remember everything. Dr.

O’Brien observed that Burris had a 1.5 centimeter cut across her nose that required six

stitches, and severely swollen and bruised eyes. Burris also had swelling on her left

temple, large abrasions on her back, and sore spots on the top of her head. Because of the

extent of the facial and nasal swelling, Dr. O’Brien ordered a CT scan, which revealed

that Burris had sustained several fractures in her nasal bones, as well as fractures to both

eyes. The fracture line extended to Burris’s sinus.

       In sum, it was determined that Burris had sustained “multiple facial fractures,”

including “nasal and orbital floor fractures,” which were significant injuries that would



                                             4
take months to heal. Tr. p. 85, 179, 187. Dr. O’Brien opined that the injuries inflicted

on Burris indeed caused a substantial risk of death.

       At the hospital, Burris informed Officer Rogers that she wanted to pursue charges

against Patton.   Officer Rogers prepared a battery affidavit in accordance with the

information that he received from Burris and reviewed it with her. Burris indicated that

she understood the contents of the affidavit and signed it.

       Patton was later arrested and charged with the following offenses: Count I,

Criminal Confinement, a class B felony; Count II, Aggravated Battery, a class B felony;

Count III, Battery Resulting in Serious Bodily Injury, a class C felony; and Count IV,

Strangulation, a class D felony.

       Between the date of his arrest on July 29 to posting bail in early September, Patton

called Burris over 400 times from the jail in violation of a no contact order. During the

first call on July 31, Patton suggested to Burris that she did not really know what

happened and asked her what she had told the police. Patton told Burris that he hoped

she would say that she did not know or remember what happened. Burris told Patton that

her face was “broken,” that she could not eat, and that she had bruises all over her body.

State’s Ex. 29. Burris stated that she thought she was going to die, and Patton admitted

that he “fu*ked up good,” but urged Burris to bail him out and get a local phone number.

Id.

       In a telephone call on August 3, Patton told Burris that she was his “backbone”

and that he needed her to “take care of this,” that with “no face” the State had “no case,”

                                             5
and that the State had no other witnesses against him. State’s Ex. 29. In a call on

September 4, Patton told Burris, not to “start running [her] fuc*ing mouth,” that he

“dared her” to say “something slick,” and that she would “wish” she had never said that

he talked down to her. State’s Ex. 29. Later that same evening, Burris left a voicemail to

Patton that he was talking her down “that night” and told her that he would laugh if she

“got her ass beat” and that he obviously hits women. Id. Patton replied that he knew

what she was trying to do and she could “go to hell.” Id.

       A three-day jury trial commenced on September 28, 2011.             At trial, Burris

completely recanted her claims that Patton had caused her injuries. Burris claimed that

she could not remember what she had told the police officers that night, but later testified

that she had lied to the officer that night when she told him that Patton had beaten her and

caused her injuries. Burris also testified that a man named “David” had beat her. Tr. p.

71-72, 98-103, 112-15, 123-25, 133. Burris claimed that Patton became angry when she

came home with injuries and would not let her take a shower and go to bed, so she got

angry at Patton. Burris also testified that she never told anyone about the incident, except

for her best friend “Amy” that “David” had caused her injuries. Id. at 92, 101, 131.

Burris also claimed that she could not remember exactly what she had told Nurse Stout or

Dr. O’Brien about who caused her injuries.

       Based in part on a pre-trial hearing on Evidence Rule 804(b)(5), which

encompasses the “forfeiture by wrongdoing” exception to the hearsay rule, the trial court

found that Burris was unavailable to testify and admitted the statements into evidence

                                             6
that she made to Officer Rogers. With no objection from Patton, the trial court admitted

the battery affidavit into evidence. And over Patton’s relevance and general prejudice

objections, the trial court admitted five of the nearly 400 jail calls that Patton placed to

Burris from the jail.

       After the State rested its case, Patton moved for a directed verdict. Patton argued

that Dr. O’Brien had testified that Burris was not in danger and that Nurse Stout said that

Burris was not dying. Patton also argued that there was no proof that he held Burris in

the apartment against her will because she freely exited the residence. The trial court

denied Patton’s motion. Patton then rested his case and renewed his motion for a directed

verdict, which the trial court again denied. The jury found Patton guilty of confinement

and both battery charges, and not guilty of strangulation.

       The trial court conducted a sentencing hearing on November 7, 2011. The trial

court vacated the class C felony battery conviction and sentenced Patton to consecutive

twenty-year sentences for the class B felony confinement and class B felony aggravated

battery convictions.

       Patton now appeals.

                             DISCUSSION AND DECISION

                                  I. Affidavit for Battery

   Patton first claims that the trial court erred in admitting the battery affidavit that

Burris executed into evidence.       Specifically, Patton argues that the affidavit was

improperly admitted because Burris did not read the affidavit when she signed it. Patton

                                             7
also contends that Indiana Evidence Rule 803(5) prohibited the admission of the affidavit

into evidence because Patton did not offer it.

       In addressing this issue, we initially observe that Patton did not object when the

State offered the affidavit into evidence. Thus, the issue is waived. See Kubsch v. State,

784 N.E.2d 905, 923 (Ind. 2003) (holding that the failure to object at trial to the

admission of evidence results in waiver of that issue on appeal).

       In an effort to avoid waiver, Patton seeks review under the fundamental error

doctrine. Fundamental error is “extremely narrow” and applies only when the error

comprises a blatant violation of basic principles, the harm or potential for harm is

substantial, and the error results in the denial of fundamental due process. Mathews v.

State, 849 N.E.2d 578, 587 (Ind. 2006). Fundamental error applies only when the error is

so prejudicial that it makes a fair trial impossible. Schmidt v. State, 816 N.E.2d 925, 944

(Ind. Ct. App. 2004).

       In this case, the affidavit for battery provided as follows:

       Comes now April Lynn Burris, the undersigned affiant, and says that on the
       28th day of July, 2011, at 2214 East Broadway, Logansport, Cass County,
       Indiana, Derek Patton . . . did knowingly or intentionally touch April Lynn
       Burris . . . in a rude, insolent or angry manner that caused bodily injury as
       follows: cut to face (nose), red marks on neck, bruising right eye, sore
       neck/throat, swelling—face, red mark on the top of head—in hair line.

       I affirm under the penalties for perjury that the foregoing statements are
       made from my own direct knowledge of the incident herein alleged and are
       true.

State’s Ex. 2.


                                              8
       Here, the battery affidavit contained hearsay because there was a “statement, other

than one made by the declarant while testifying at the trial or hearing, offered in evidence

to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c)). Hearsay is

generally inadmissible. Ind. Evid. R. 802. However, Indiana Evidence Rule 803(5)

provides that a recorded recollection is not excluded by the hearsay rule:

       A memorandum or record concerning a matter about which a witness once
       had knowledge but now has insufficient recollection to enable the witness
       to testify fully and accurately, shown to have been made or adopted by the
       witness when the matter was fresh in the witness’s memory and to reflect
       that knowledge correctly. If admitted, the memorandum or record may be
       read into evidence but may not itself be received as an exhibit unless
       offered by an adverse party.

       This exception to the hearsay rule applies if the following foundation is satisfied:

(a) the memorandum or record relates to a matter about which a witness once had

knowledge; (b) the witness has insufficient recollection at trial to enable the witness to

testify fully and accurately; (c) the witness is shown to have made or adopted the

memorandum or record; (d) the memorandum or record was adopted when the matter

was fresh in the witness’s memory; and, (e) the memorandum or record is shown to

reflect the witness’s knowledge correctly. Impson v. State, 721 N.E.2d 1275, 1282-83

(Ind. Ct. App. 2000).

       Here, Patton challenges two of the five-part foundation regarding admission of the

affidavit: 1) that Burris had recollection at trial of her statements to Officer Rogers; and

2) that Burris never vouched for the accuracy of the affidavit. Appellant’s Br. p. 12-13.

The battery affidavit clearly relates to Patton’s attack on Burris. And at trial, Burris

                                             9
recanted and was very selective about what she recalled stating to various individuals.

Burris testified in a very confusing manner that she did not remember telling Officer

Rogers that Patton beat her, but she did remember telling the officer that Patton assaulted

her because she was angry with him for not letting her take a shower and go to bed. Tr.

p. 73, 79, 88, 104, 112-15. Burris claimed that she could not remember the details of the

beating and then later denied that Patton beat her at all, claiming that it was an unknown

third party. Id. at 98-103, 123-25.

       In our view, Burris’s partial recollection and her denial of the specifics of the

attack serves as the “insufficient recollection” required by (b) above. In other words,

Burris’s partial and selective recollection of the events and her version of the events that

changed constantly prevented her from testifying “fully and accurately.”         Thus, the

admission of the battery affidavit was necessary not only to establish Burris’s recollection

at the time of the beating, but also to alleviate any confusion that Burris intentionally

created at trial about what she said that night to the police officer. See Smith v. State,

719 N.E.2d 1289, 1291 (Ind. Ct. App. 1999) (finding that under Rule 803(5), a witness’s

memory need not be “completely exhausted” and that the witness’ statement that he

could not remember some events was enough for the court to find that his memory could

not be sufficiently refreshed to testify “fully and accurately”).

       Burris’s selective and partial recollection satisfied the foundational requirement

that she had “insufficient recollection” to testify “fully and accurately.” She signed the

affidavit on the same day as the attack and acknowledged that she signed it, which shows

                                              10
a timely adoption of the statement while the matter was fresh in her memory. Tr. p. 85-

86. The details in the affidavit are consistent with the initial statements made by Burris

to Officer Rogers and to Nurse Stout and Dr. O’Brien, which shows that it accurately

reflected Burris’s knowledge.

       Finally, Burris testified at trial that she remembered the officer preparing a piece

of paper and that she signed it. Tr. p. 85-86. Officer Rogers testified that he prepared the

affidavit, reviewed it with Burris, and Burris told him that she understood it. Id. at 240-

41. Burris then signed the affidavit. Id. at 242. By signing the affidavit after the officer

reviewed it with her, Burris adopted the content of the affidavit at that time and professed

its accuracy. Because the foundation for the admission of the exhibit was established, the

trial court properly admitted the substance of the exhibit into evidence on this basis.

       On the other hand, we agree with Patton’s contention that the affidavit itself

should not have been admitted into evidence. Rather, it should have been read verbatim

into the record. Rule 803(5) states that “[i]f admitted, the memorandum or record may be

read into evidence but may not itself be received as an exhibit unless offered by an

adverse party.” Patton did not offer the exhibit into evidence.

       In any event, the admission of the substance of the affidavit, whether read

verbatim into evidence or admitted as an exhibit, was harmless error, not fundamental

error. “[A]n error is harmless if the probable impact of the evidence upon the jury is

sufficiently minor so as not to affect a party’s substantial rights.” Turner v. State, 878

N.E.2d 286, 294 (Ind. Ct. App. 2007). Moreover, the admission of evidence that is

                                             11
merely cumulative of other, properly admitted evidence generally does not warrant

reversal of a conviction. Johnson v. State, 845 N.E.2d 147, 150 (Ind. Ct. App. 2006).

       In this case, the battery affidavit was cumulative of the initial statements that

Burris made to Officer Rogers, as well as the statements that she made to Nurse Stout and

Dr. O’Brien, that Patton beat her and injured her.

       Patton makes no challenge on appeal to the admission of Burris’s statements to the

medical professionals, the affidavit was cumulative of the numerous photographs

showing Burris’s severe injuries that are more graphic than the description of her injuries

in the affidavit, and to Dr. O’Brien’s testimony that Burris suffered fractures to her nose

and eyes. In short, the evidence presented at trial against Patton was overwhelming.

Thus, we cannot say that Patton was denied a “fair trial” by the admission of this exhibit

in any form.

                            II. Hearsay Statements by Burris

       Patton next argues that the trial court erred in admitting Burris’s statements that

she made to Officer Rogers into evidence because they were hearsay. More particularly,

Patton contends that there was no showing that Burris was “unavailable” within the

meaning of Indiana Evidence Rule 804(a)(3), because she was able to recall the

conversations that she had with Officer Rogers about the incident.

       We first note that the decision to admit or exclude evidence lies within the trial

court’s sound discretion and is afforded great deference on appeal. Bacher v. State, 686

N.E.2d 791, 793 (Ind. 1997). We will not reverse that decision absent a manifest abuse

                                            12
of discretion resulting in the denial of a fair trial. Edwards v. State, 724 N.E.2d 616, 620

(Ind. Ct. App. 2000).

         As noted above, hearsay is generally inadmissible. Amos v. State, 896 N.E.2d

1163, 1168 (Ind. Ct. App. 2008); Evid. R. 802. However, the admission of impermissible

hearsay evidence is harmless error in some instances. Willis v. State, 776 N.E.2d 965,

968 (Ind. Ct. App. 2002). Reversal is appropriate only where the improper admission of

evidence caused prejudice to the defendant’s substantial rights. Craig v. State, 630

N.E.2d 207, 211 (Ind. 1994). The admission of evidence that is merely cumulative of

other, properly admitted evidence generally does not warrant reversal of a conviction. See

Johnson v. State, 845 N.E.2d 147, 150 (Ind. Ct. App. 2006). We also note that an

exception under Evidence Rule 804 exists for an “unavailable” declarant. The relevant

provision here is where the declarant “testifies to a lack of memory of the subject matter

of the declarant’s statement.” Morgan v. State, 903 N.E.2d 1010, 1015 (Ind. Ct. App.

2009).

         During a pretrial hearing, the State sought to show that “[Patton] has substantially

contributed to lack of cooperation, absence of cooperation on behalf of Burris.”

Appellant’s App. p. 19. During that hearing, the State offered a number of calls from the

jail into evidence that Patton made to Burris, many of which occurred after a hearing that

had been conducted the day before. Tr. p. 13, 19-20. The trial court determined that if

Burris became “unavailable” at trial, her statements to Officer Rogers could be admitted

under an exception to the hearsay rule. Id. at 35.

                                              13
       Indeed, after Burris testified at trial, recanted her allegations against Patton, and

testified to a partial memory of her conversation with Officer Rogers, the trial court

found that Burris was “unavailable” because she testified “to a lack of memory of the

subject matter” as it related to the conversation that she had with Officer Rogers. Tr. p.

153-54. As a result, the trial court found that the evidence could be admitted under the

exception to the hearsay rule. Id. at 154.

       Contrary to Patton’s suggestion, the trial court correctly determined that Burris

was unavailable at trial. As noted above, Burris recanted, was very selective about what

she remembered saying to various people, testified in a very confusing manner that she

did not remember telling Officer Rogers that Patton beat her but then stated that she did

remember making a general allegation, claimed that she could not remember the details

of the beating, and then alleged that Patton had never beaten her, asserting that it was an

unknown third party who had hit her.

       We agree with the trial court’s conclusion that Burris testified to a general lack of

memory of her statements to Officer Rogers in which she stated that Patton had hit her

repeatedly. That said, we turn to the “forfeiture by wrongdoing” exception to the hearsay

rule, which provides for the admission of:

       [a] statement offered against a party that has engaged in or encouraged
       wrongdoing that was intended to, and did, procure the unavailability of the
       declarant as a witness for the purpose of preventing the declarant from
       attending or testifying.




                                             14
       To illustrate, in Roberts v. State, 894 N.E.2d 1018, 1025 (Ind. Ct. App. 2008), this

court held that “a party, who has rendered a witness unavailable for cross-examination

through a criminal act may not object to the introduction of hearsay statements by the

witness as being inadmissible under the Indiana Rules of Evidence.” And, as we

acknowledged in Boyd v. State, 866 N.E.2d 855, 857 (Ind. Ct. App. 2007), Federal Rule

of Evidence 804(b)(6) similarly does not exclude “[a] statement offered against a party

that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the

unavailability of the declarant as a witness.” Id. In essence, “the forfeiture of the right to

confront witnesses who are unavailable to testify based on the defendant’s wrongdoing

may be likened to the doctrine of invited error.” Id.

       The “wrongdoing” here is Patton’s continuous and incessant violation of the no

contact order that was issued against him from having contact with Burris, and his

pressuring Burris to recant at trial and testify that she could not remember the specific

statements that she made to Officer Rogers that Patton hit her and caused her injuries. At

hearings on September 26 and 27, the State admitted several of the over 400 phone calls

that Patton made to Burris while he was in jail. Tr. p. 9-11. Burris testified that she and

Patton had spoken several times since the no contact order was issued, and she admitted

making several statements that she would not testify at Patton’s trial. Id. at 31-32, 34.

When considering even a few of these calls as examples, the trial court properly found

that Patton had engaged in wrongdoing that was intended to, and did, render Burris



                                             15
unavailable by convincing her that she had a lack of memory of the incident. As a result,

Patton’s claim that this evidence was improperly admitted at trial fails.

                     III. Admission of Jail Telephone Conversations

       Patton next claims that the trial court erred in admitting the specific jail telephone

conversations into evidence that took place between him and Burris. More particularly,

Patton argues that the conversations were irrelevant, they likely confused the jury, and

they unfairly prejudiced Patton’s presumption of innocence.

       Burris’s act of recanting her allegation that Patton battered her and caused her

injuries became the central issue at trial. And relevant evidence is evidence that has “any

tendency to make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the evidence.” Ind.

Evid. Rule 401. Again, the core question for the jury to decide was whether Burris made

truthful statements on the night of the battery when she alleged that Patton injured her, or

whether Burris made truthful statements at trial when she alleged that some third party

had done the beating. In short, Burris’s act of recanting and her bias toward Patton, were

highly relevant to the jury’s determination of her credibility. See Robinson v. State, 682

N.E.2d 806, 809-10 (Ind. Ct. App. 1997) (finding that evidence of the defendant’s gang

membership was relevant to show why the witness recanted at trial). Also, Patton’s calls

to Burris showed his control over her and the persuasion that he used to convince her to

be uncooperative with the prosecution and recant at trial.



                                             16
       As noted above, in the call that was made on July 31, Patton told Burris that he

hoped that she would say that she did not know what happened that night, asked Burris

what she told police, encouraged Burris to get him out of jail, and tried to convince Burris

that she should not “remember” what happened. State’s Ex. 29. In the August 3rd call,

Patton told Burris that she was his “backbone” and that he needed her to “take care of

this,” that with “no face” the State had “no case,” and that the State had no witnesses

against him so no one knew what happened. Id.           In another call that was made on

September 4, Patton angrily told Burris not to “run her fu*king mouth,” that he “dared

her” to say “something slick,” and that she would “wish” she had never said that he

talked her down. Id. Later that evening, Burris told Patton in a voice mail that he had

been “talking her down that night” and that he “obviously hits women.” Id.           Patton

replied that he knew what Burris was attempting to do and that she could “go to hell.” Id.

       In light of the above, we note that numerous cases have determined that where a

relationship between parties is characterized by frequent conflict, evidence of the

defendant’s prior assaults and confrontations with the victim may be admitted to show

the relationship between the parties and the motive for committing the crime. Iqbal v.

State, 805 N.E.2d 401, 408 (Ind. Ct. App. 2004). Also, consciousness of guilt may be

shown by threats or attempts to intimidate witnesses for the prosecution. Cox v. State,

422 N.E.2d 357, 361 (Ind. Ct. App. 1981).

       Here, the jail calls showed the nature of the relationship between Patton and

Burris, and evidence of his guilt. In the July 31st call, Patton stated that he was “very

                                            17
sorry,” that it was his “fault” that he was in jail, and that he “fu*ked up good.” State’s

Ex. 29. This evidence was highly relevant to the jury’s assessment of the relationship

between Patton and Burris, her decision to recant at trial, and Patton’s guilt.

        Finally, we cannot say that the admission of the jail calls was unduly prejudicial to

Patton, and Patton’s allegation that the jury would be confused by the new criminal

charges for invasion of privacy that were based upon these calls from the jail is

completely unfounded. Finally, there is no showing that the admission of the jail calls

into evidence undermined Patton’s presumption of innocence.

        The jury was never informed that there were other pending charges against Patton,

let alone for invasion of privacy because of these same jail calls. And any taint to

Patton’s presumption of innocence arose from his calling Burris from the jail. Indeed,

Patton had full knowledge from the notice given at the beginning of the calls that the

State was monitoring and recording those calls.                     Ex. 29.       Notwithstanding that

knowledge, Patton chose to call Burris numerous times from the jail and exposed his own

incarceration to the jury. As a result, Patton’s claim that the trial court improperly

admitted the calls into evidence, fails.3


3
  As an aside, we note that Patton did not object at trial to the admission of the jail calls on the basis of
Indiana Evidence Rule 404(b). As a result, Patton has waived this argument. See Boatner v. State, 934
N.E.2d 184, 187 (Ind. Ct. App. 2010) (holding that a party may not object to the admission of evidence on
one ground and seek reversal on appeal based on a different ground). Waiver notwithstanding, the calls
were admitted to show Burris’s bias over Patton and his influence over her, rather than to show Patton’s
propensity to batter women or his general bad character.
        Patton has also waived claims under Evidence Rule 608, which provides that specific instances of
wrongdoing may not be inquired into or proved by extrinsic evidence for the purpose of attacking or
supporting a witness’s credibility, other than a conviction for a crime as provided under Evidence Rule
609. Again, the calls were evidence of Patton’s influence over her and of the nature of their general
                                                    18
                                      IV. Directed Verdict

       Patton next claims that the trial court erred in denying his motion for a directed

verdict with regard to the aggravated battery and confinement charges. In essence, Patton

argues that the evidence was insufficient to support his convictions on those offenses,

because the State allegedly failed to prove that Patton had confined Burris, and there was

no evidence of a serious bodily injury that created a substantial risk of death and/or

protracted loss or impairment of a bodily member or organ to Burris.

       When reviewing a challenge to the sufficiency of evidence, we do not reweigh the

evidence or judge the credibility of the witnesses, and we respect “the jury’s exclusive

province to weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126-27

(Ind. 2005).     We must also consider only the probative evidence and reasonable

inferences that support the verdict. Id. We will affirm the conviction 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. Id.

                                         A. Confinement

       Patton was charged with confinement as follows:

       On or about July 29, 2011, in Cass County, State of Indiana, Derek Patton
       did knowingly or intentionally confine April Burris without the consent of
       April Burris, resulting in serious bodily injury, to-wit: unconsciousness to
       April Burris. . . .




relationship to show why she recanted. They were not admitted as specific instances of any wrongdoing
on Burris’s part to attack her credibility.
                                                 19
Appellant’s App. p. 22. As charged in this case, confinement is defined under Indiana

Code section 35-42-3-3 as follows:

       (a) A person who knowingly or intentionally:

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

       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[.]

       In this case, Burris testified at trial that she fled out the back door of the apartment

without any clothes on because she knew that Patton would not let her leave. Tr. p. 75-

76, 126, 225. This was after the beating occurred, and Patton had ordered her to shower

and clean up. The evidence also showed that Patton savagely hit Burris in the face and

caused her to sustain serious injuries. Burris told Officer Rogers that the incident started

in the front yard and moved upstairs into the apartment. Tr. p. 225. If Burris had been

free to leave the apartment, it is reasonable to infer that she would have left the apartment

before Patton could inflict such severe injuries on her. The extent of the blood left in the

apartment, the property damage, and Burris’s injuries, suggest that the attack was a

prolonged one. Moreover, if Burris had been free to leave the apartment at any time,

there would have been no need for her to flee into the street without wearing any clothing

and hiding underneath a truck in someone’s driveway. In short, the jury was free to reject

                                              20
Burris’s recanted trial testimony and find, based upon a reasonable interpretation of the

evidence, that Patton had confined her to the apartment.

          The jury was also free to reject Burris’s trial testimony and conclude that the

evidence supported a finding that Burris was rendered unconscious during the attack, was

not merely intoxicated, and that she suffered serious bodily injury. Burris reported to

both Nurse Stout and Dr. O’Brien that she lost consciousness during the attack. Tr. p.

175-76, 183-84, 198; State’s Ex. 7. The bloody crime scene and Burris’s severe injuries

to her head and face also supported an inference that Burris lost consciousness during the

attack.     As a result, we find that the evidence was sufficient to support Patton’s

conviction for confinement.

                                    B. Aggravated battery

          Patton was charged with and convicted of aggravated battery in accordance with

Indiana Code section 35-42-2-1.5, which provides that:

          A person who knowingly or intentionally inflicts injury on a person that
          creates a substantial risk of death or causes:

                (1) serious permanent disfigurement;

                (2) protracted loss or impairment of the function of a bodily member
                or organ . . .

          commits aggravated battery, a Class B felony.

          The charging information provided that Patton knowingly or intentionally inflicted

injury on Burris “that created a substantial risk of death or caused protracted loss or

impairment of a bodily member or organ.” Appellant’s App. p. 23.

                                              21
       The State was not required to present expert testimony to establish the substantial

risk of death element. Oeth v. State, 775 N.E.2d 696, 702 (Ind. Ct. App. 2002). And in

reviewing a sufficiency claim concerning whether the injuries created a substantial risk of

death, we examine the facts, including the nature and location of the injury, and the

treatment provided. Id.

       The evidence demonstrated that Patton repeatedly struck Burris in the face and on

the head, causing her to sustain “multiple facial fractures,” which were significant

injuries that would take two to three months to heal. Tr. p. 85, 169, 179, 187; State’s Ex.

7. The radiology report from the CT scan showed that Burris suffered a “moderately

displaced fracture of the right nasal bone,” a “subtle fracture of the nasal septum,” a

“subtle fracture of the medial wall the right maxillary sinus,” and “mildly displaced

bilateral orbital floor fractures, slightly greater in severity on the right side.” State’s Ex.

7. The fracture line extended into Burris’s right maxillary sinus, and she experienced

“blowout fractures” of both orbital floors. Tr. p. 167-69; State’s Ex. 7. A “blowout”

accompanies “a possibility of eye muscle problems [and] much more bleeding and

swelling.” Id. at 186. The cut to Burris’s nose required six stitches to close and it was

determined that it would take nearly five weeks for the bruising to dissipate. Id. at 187.

Dr. O’Brien opined that the injuries inflicted on Burris caused a substantial risk of death

to Burris. Id. at 185, 187-88.

       In our view, this was ample evidence that enabled the jury to make a finding that

Burris’s injuries created a substantial risk of death. As a result, we conclude that the trial

                                              22
court properly denied Patton’s motions for a directed verdict and that the evidence was

sufficient to support the convictions.

                              V. Double Jeopardy Concerns

       Finally, Patton argues that convictions for both confinement and aggravated

battery cannot stand. In particular, Patton asserts that there was a reasonable possibility

that the jury used the same facts to convict Patton of both offenses in violation of the

“actual evidence test” of Article 1, Section 14 of the Indiana Constitution, Indiana’s

double jeopardy provision. Appellant’s Br. p. 29.

       In resolving this issue, we initially observe that Article 1, Section 14 of the Indiana

Constitution provides that “No person shall be put in jeopardy twice for the same

offense.” This provision was intended to prohibit, among other things, multiple

punishments for the same actions. Richardson v. State, 717 N.E.2d 32 (Ind. 1999). In

Richardson, our Supreme Court established a two-part test for analyzing double jeopardy

claims. Under that test, multiple offenses are the same offense in violation of the Indiana

Constitution “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.” Id. at 49.

       At issue in this case is application of the actual evidence test. Multiple offenses

may violate double jeopardy principles “if the actual evidence presented at trial

demonstrates that each offense was not established by separate and distinct facts.” Id. In

determining the facts used by the fact-finder to establish the elements of each offense, it

                                             23
is appropriate to consider the charging information, jury instructions, and arguments of

counsel. Borum v. State, 951 N.E.2d 619, 625 (Ind. Ct. App. 2011).

       In this case, Patton was charged with confinement for “knowingly or intentionally

confin[ing] . . . Burris without [her] consent, resulting in serious bodily injury, to-wit:

unconsciousness to April Burris.” Appellant’s App. p. 22. The aggravated battery

charge alleged that Patton knowingly or intentionally inflicted injury on Burris “that

created a substantial risk of death or caused protracted loss or impairment of a bodily

member or organ.” Id. at 23.

       The evidence showed that Patton initially struck Burris in the front yard and then

moved her upstairs to the apartment. Burris told Officer Rogers that Patton would not

allow her to leave the apartment, and Burris testified at trial that she fled the apartment

without any clothes on because she knew that Patton would not let her leave the

apartment. Tr. p. 75-76,126. This evidence showed that Patton’s confinement of Burris

was greater than what was necessary to accomplish the offense of aggravated battery.

       In other words, even if the battery itself caused the initial confinement while

Patton was hitting Burris, the confinement continued after the battery was over. The

battery had concluded by the time that Patton had ordered Burris to take a shower. The

fact that Burris fled from the back door without any clothes on after the battery was over

and as soon as Patton left the bathroom supports the inference that the confinement was

greater than necessary to commit the battery itself. Separate convictions under double

jeopardy challenges have been upheld where the confinement was greater than necessary

                                            24
to accomplish the underlying offense. See Mendenhall v. State, 963 N.E.2d 553, 571

(Ind. Ct. App. 2012) (upholding confinement and attempted murder convictions), trans.

denied; Hopkins v. State, 759 N.E.2d 633, 639 (Ind. 2001) (observing that where the

confinement of a victim is greater than that which is inherently necessary to rob him, the

confinement, while part of the robbery, is also a separate criminal transgression).

       Although it is not entirely clear, Patton may also be arguing that the same bodily

injury for the aggravated battery conviction was used to enhance the confinement

conviction to a class C felony. While the general rule is that two crimes may not be

enhanced by the same bodily injury, see Bunch v. State, 937 N.E.2d 839, 847 (Ind. Ct.

App. 2010), trans. denied, that was not the case here. Patton’s attack on Burris was

prolonged and involved multiple acts of violence against her. The State charged the

aggravated battery offense under the substantial risk of death portion of the statute, and

Burris’s facial fractures supported the jury’s finding as to that offense.

       The State charged the confinement offense as a class C felony for Burris’s

resulting unconsciousness, an injury different from her facial fractures. The State

specifically encouraged the jury in closing argument to find that Patton confined Burris

and that the confinement resulted in unconsciousness to Burris. Tr. p. 318-19.

       That said, the prohibition against double jeopardy will not be implicated where

multiple injuries inflicted on the victim do not stem from a single act. Jackson v. State,

625 N.E.2d 1219, 1221 (Ind. 1993). Patton committed multiple acts of violence against

Burris, and the many resulting injures supported the separate convictions. As a result,

                                              25
Patton’s convictions for both aggravated battery and class C felony confinement do not

violate double jeopardy principles. Thus, Patton’s claim fails.

       The judgment of the trial court is affirmed.

ROBB, C.J., and BRADFORD, J., concur.




                                            26
