      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                       Mar 31 2015, 10:03 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Patricia Caress McMath                                   Gregory F. Zoeller
      Marion County Public Defender’s Office                   Attorney General of Indiana
      Indianapolis, Indiana
                                                               Larry D. Allen
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Rodney L. Blakely,                                       March 31, 2015

      Appellant-Defendant,                                     Court of Appeals Cause No.
                                                               49A02-1406-CR-391
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        Lower Court Cause No.
                                                               49G05-1311-FC-72982
      Appellee-Plaintiff.                                      49G05-1310-FD-69637
                                                               The Honorable Grant W. Hawkins,
                                                               Judge




      Pyle, Judge.


                                         Statement of the Case
[1]   In this consolidated appeal, Rodney L. Blakely (“Blakely”) appeals, following

      two separate bench trials, his two convictions for Class C felony criminal

      Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-391 | March 31, 2015      Page 1 of 10
      confinement1 in one cause and his conviction for Class D felony strangulation

      in another cause.2 Blakely presents an argument only on his criminal

      confinement convictions and contends that the evidence was insufficient to

      support his convictions. Concluding that the trial court, acting as factfinder,

      could have reasonably inferred that Blakely knowingly confined his victims

      without their consent, we affirm his conviction.


[2]       We affirm.


                                                        Issue
[3]   Whether sufficient evidence supports Blakely’s criminal confinement
      convictions.

                                                        Facts
[4]   On October 25, 2013, Blakely and his girlfriend, Miss Macklin (“Macklin”),

      were in their apartment and became involved in an argument that evolved into

      Blakely putting his hands around Macklin’s throat and choking her. That same

      day, the State charged Blakely with Class D felony strangulation and Class A




      1
       IND. CODE § 35-42-3-3(a)(1)(b)(1)(C). We note that, effective July 1, 2014, a new version of this criminal
      confinement statute was enacted and that Class C felony criminal confinement is now a Level 5 felony.
      Because Blakely committed his crimes in 2013, we will apply the statute in effect at that time.
      2
        I.C. § 35-42-2-9. The strangulation statute was also amended effective July 1, 2014, and Class D felony
      strangulation is now a Level 6 felony.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-391 | March 31, 2015             Page 2 of 10
      misdemeanor battery under cause number 49G05-1310-FD-069637 (“Cause 13-

      069637”). Thereafter, the trial court issued a protective order against Blakely.


[5]   A couple of weeks later, during the early morning hours of November 9, 2013,

      Macklin was in her apartment with Leslie Johnson (“Johnson”). A little before

      5:00 a.m., Blakely began banging on Macklin’s apartment door. Macklin

      answered the door, noticed that he “was drunk[,]” and then let him in. (Tr. 47).

      Blakely began yelling at Macklin because she had not answered her phone, and

      then he threw a tote against the wall. Blakely was loud and “upset[,]” and

      Macklin tried to calm him down as they sat in the living room. (Tr. 48).


[6]   Meanwhile, Johnson—who was aware of the prior domestic violence incident

      between Blakely and Macklin—came out to the living room, asked for

      Macklin’s address, then returned to the bedroom and called the police. The

      Lawrence Police Department received the dispatch that “a female was calling

      for help[,]” and Officer Jeffrey Gray (“Officer Gray”) and other officers

      responded to the scene around 5:30 a.m. (Tr. 67). At that time, Johnson was

      in the living room with Macklin and Blakely. When the police knocked on the

      door and announced their presence, Blakely told Macklin and Johnson to “be

      quiet[,]” “stay still[,]” and “don’t answer the door.” (Tr. 18, 40, 51). When no

      one answered the door, the police left.


[7]   Thereafter, Johnson again called the police who were then dispatched back to

      Macklin’s apartment. When police knocked, again, no one answered. At that

      point, the police learned that the reason for the dispatch involved Blakely, with


      Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-391 | March 31, 2015   Page 3 of 10
       whom they had recently had a previous encounter. Because of the history that

       the police had with Blakely in the prior case and “due to what was said to

       dispatch,” Officer Gray “contacted [his] supervisor and advise[d] of the

       situation[,] and they proceeded to start the SWAT team.” (Tr. 71).


[8]    Around 6:19 a.m., Sergeant James Vaughan (“Sergeant Vaughan”), who was

       the SWAT commander, received a dispatch to go to Macklin’s apartment

       because there was “a person barricaded with a couple of hostages[.]” (Tr. 74).

       Sergeant Vaughan received information that there was “a person that . . . was

       potentially armed and two hostages and one was a victim from a week before,

       [of] some kind of domestic battery” and that “there was a protective order in

       place.” (Tr. 74). The police called Blakely’s phone, but he did not answer.


[9]    Over the next few hours, Sergeant Vaughan kept in contact with Johnson via

       text messages. He texted with Johnson to confirm that they were in the

       apartment and to determine if they were able to leave the apartment. Johnson

       texted that they were not able to leave and that they did not want Blakely to

       know that they were talking to the police. When the sergeant texted and asked

       Johnson if they could leave the apartment, she responded, “No can’t leave[.]”

       (State’s Ex. 1 at 4).


[10]   Thereafter, the police made announcements with a loud speaker, directing

       Blakely to come out of the apartment, but he did not. At that time, Blakely,

       Macklin, and Johnson were in the bedroom, and he told Johnson and Macklin

       “to hush.” (Tr. 36). After the police confirmed with Johnson that the three of


       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-391 | March 31, 2015   Page 4 of 10
       them inside the apartment could hear the announcement to exit the apartment,

       the SWAT team discharged tear gas into the apartment through the bedroom

       window, which then resulted in eye injuries to those in the apartment.

       Thereafter, the SWAT team entered the apartment and arrested Blakely. The

       State then charged Blakely with two counts of Class C felony criminal

       confinement under cause number 49G05-1311-FC-072982 (“Cause 13-

       072982”).


[11]   On May 5, 2014, the trial court held separate bench trials in the two causes. In

       Cause 13-072982, Macklin, Johnson, Officer Gray, and Sergeant Vaughan

       testified to the facts above. The State also introduced into evidence State’s

       Exhibit 1, which were Johnson’s text messages with police, and State’s Exhibit

       2, which was a recorded history of the 911 calls and all communications that

       occurred between the police and Johnson inside of the apartment.


[12]   After the State rested, Blakely testified on his own behalf and denied that he

       told Macklin and Johnson to stay quiet or prevented them from answering the

       door or leaving the apartment. He testified that he, instead, told them to leave

       the apartment. The trial court found Blakely guilty as charged.


[13]   Later that same day, the trial court held a bench trial in Cause 13-069637. The

       trial court found Blakely guilty of Class D felony strangulation and not guilty of

       Class A misdemeanor battery.


[14]   On May 14, 2014, the trial court held a consolidated sentencing hearing for

       both causes. In Cause 13-069637, the trial court imposed a two (2) year

       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-391 | March 31, 2015   Page 5 of 10
       executed sentence for Blakely’s Class D felony strangulation conviction. In

       Cause 13-072982, the trial court sentenced Blakely to seven (7) years executed

       in the Department of Correction for each of his Class C felony criminal

       confinement convictions and ordered that these sentences be served

       concurrently to each other and consecutively to his sentence in Cause 13-

       069637.


[15]   Blakely commenced an appeal from both causes and then sought, and was

       granted permission, to consolidate his appeal from his convictions for criminal

       confinement under Cause 13-072982 with his appeal from his conviction for

       Class C felony strangulation under Cause 13-069637. On appeal, however, he

       does not raise any argument in regard to his strangulation conviction; instead,

       he appeals only his criminal confinement convictions.


                                                   Decision
[16]   Blakely argues that the evidence was insufficient to support his two Class C

       felony criminal confinement convictions.

[17]           When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. It is
               the fact-finder’s role, not that of appellate courts, to assess
               witness credibility and weigh the evidence to determine whether
               it is sufficient to support a conviction. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder could find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence

       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-391 | March 31, 2015   Page 6 of 10
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks

       and citations omitted) (emphasis in original).


[18]   To sustain Blakely’s convictions for Class C felony criminal confinement as

       charged, the State was required to prove beyond a reasonable doubt that

       Blakely “knowingly confine[d]” Macklin and Johnson “without [their] consent”

       “by refusing to allow [them] to leave the residence” and that the confinement

       “resulted in bodily injury” to them. See I.C. § 35-42-3-3(a)(1)(b)(1)(C); App. 19.

       To “confine” means “to substantially interfere with the liberty of a person.”

       I.C. § 35-42-3-1.


[19]   Blakely argues that the “only question in this case is whether [he] refused to

       allow the women to leave the apartment.” (Blakely’s Br. 5). Blakely contends

       that the evidence that he told them to be quiet and not answer the door was not

       sufficient to show that he refused to allow them to leave the apartment because

       it did not show that he “substantially interfered with [their] liberty and forced

       [them] to stay in the apartment without [their] consent.” (Blakely’s Br. 6).

       Blakely cites to certain parts of Macklin’s and Johnson’s testimony, arguing that

       he did not confine them but that they “voluntarily complied with his instruction

       to not open the door.” (Blakely’s Br. 6).


[20]   We disagree with Blakely’s suggestion that the State was required to show that

       Blakely used force when confining the women. The State did not charge
       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-391 | March 31, 2015   Page 7 of 10
       Blakely with committing criminal confinement by the use of force or threat of

       force. Compare I.C. § 35-42-3-3(a)(1) (subsection charged in this case) with I.C.

       § 35-42-3-3(a)(2) (subsection involving removing a victim, by use of force or

       threat of force, from one place to another).


[21]   Also, the evidence presented by the State was sufficient to show that Blakely

       confined the women without their consent. Blakely, who was drunk and had a

       protective order in place to stay away from Macklin, arrived at her apartment in

       the early morning hours and pounded on her door until she let him in the

       apartment. Once inside, he was loud and upset, and Johnson called the police.

       Johnson testified that when the police knocked on the door and Blakely told her

       to be quiet and not answer the door, she took it as a command. Johnson

       testified that she did not consent or want to remain in the apartment during the

       course of the three hours and that she did not feel free to leave the apartment

       because of Blakely. Macklin testified that she was supposed to go to work at

       6:00 a.m. and that she wanted to go but did not “[b]ecause of the incident that

       was occurring at that time” with Blakely coming to the apartment and telling

       her not to answer the door. (Tr. 53). She also testified that she did not answer

       the door or leave because Blakely had “a temper” and she did not want to

       “aggravate” him or “make a situation worse.” (Tr. 52). Additionally, Macklin

       testified that she “wanted to be out of there” and that they were “there too

       long[.]” (Tr. 55).


[22]   Based on the evidence presented, it was reasonable for the trial court, as

       factfinder, to have drawn an inference that Blakely knowingly confined Macklin

       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-391 | March 31, 2015   Page 8 of 10
       and Johnson without their consent when he came into Macklin’s apartment,

       with a protective order in place, and commanded Macklin and Johnson to stay

       quiet and to not answer the door when the police knocked. See, e.g., Daniel v.

       State, 526 N.E.2d 1157, 1161 (Ind. 1988) (holding that there was sufficient

       evidence to support the defendant’s criminal confinement conviction where the

       victim, who did not try to leave the inside of the Village Pantry, testified that

       she did not freely choose to remain in the building and that she did so because

       of defendant); Bunch v. State, 937 N.E.2d 839, 850 (Ind. Ct. App. 2010)

       (explaining that establishment of a lack of consent can be inferred from the

       evidence), trans. denied. See also Tin Thang v. State, 10 N.E.3d 1256, 1260 (Ind.

       2014) (explaining that “when determining whether the elements of an offense

       are proven beyond a reasonable doubt, a fact-finder may consider both the

       evidence and the resulting reasonable inferences”) (emphasis in original).


[23]   Blakely’s argument—which in essence challenges the weight the trial court

       applied to parts of Macklin’s and Johnson’s testimony—is nothing more than

       an invitation to reweigh the evidence, which we will not do. See Drane, 867

       N.E.2d at 146. Because there was probative evidence from which the factfinder

       could have found Blakely guilty beyond a reasonable doubt of two counts of

       Class C felony criminal confinement, we affirm his convictions. See id. at 147

       n.4 (stating that “appellate courts must affirm ‘if the probative evidence and

       reasonable inferences drawn from that evidence could have allowed a reasonable

       trier of fact to find the defendant guilty beyond a reasonable doubt’”) (quoting




       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-391 | March 31, 2015   Page 9 of 10
       McHenry, 820 N.E.2d 124, 126 (Ind. 2005) (quoting Tobar v. State, 740 N.E.2d

       109, 112 (Ind. 2000))) (emphasis in original).


[24]   Affirmed.


       Barnes, J., and May, J., concur.




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