ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                      Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                    Attorney General of Indiana
Brooklyn, Indiana
                                                           Lee M. Stoy, Jr.
                                                           Deputy Attorney General
                                                                                                  FILED
                                                           Indianapolis, Indiana              Jan 11 2018, 8:31 am

                                                                                                  CLERK
                                                                                              Indiana Supreme Court
                                                                                                 Court of Appeals
                                                                                                   and Tax Court




                                            IN THE
    COURT OF APPEALS OF INDIANA

Amber Keith,                                               January 11, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           32A01-1709-CR-2011
        v.                                                 Appeal from the Hendricks
                                                           Superior Court
State of Indiana,                                          The Honorable Stephenie Lemay-
Appellee-Plaintiff                                         Luken, Judge
                                                           Trial Court Cause No.
                                                           32D05-1703-F6-293



May, Judge.




Court of Appeals of Indiana | Opinion 32A01-1709-CR-2011 | January 11, 2018              Page 1 of 7
[1]   Amber Keith challenges the sufficiency of evidence supporting her conviction of

      Level 6 felony escape. 1 She argues the State charged her with a crime of which

      she could not be convicted because her home does not qualify as a place of

      “lawful detention” from which to escape as required for conviction of escape

      under Indiana Code section 35-44.1-3-4(c). We hold that, for persons on home

      detention, a home is a place of lawful detention and, accordingly, affirm Keith’s

      conviction of escape.



                                Facts and Procedural History
[2]   On March 1, 2017, pursuant to her conviction for a crime about which the

      record gives us no additional information, Keith was ordered to serve 180 days

      on home detention. The home detention order stipulated Keith was to remain

      in her home except to attend probation appointments and to have her

      monitoring device maintained.


[3]   Keith was fitted with the monitoring device on March 6, 2017.

      Probation/Home Detention Officer Chad Koebcke instructed Keith in the use

      of the monitoring anklet that includes a GPS tracking device 2 and the other

      conditions of home detention. When Keith left the home detention office at




      1
          Ind. Code § 35-44.1-3-4(c) (2014).
      2
       Officer Koebcke testified the monitoring unit was able to track a person with the use of GPS, to receive
      messages from the officers and relay those messages to the monitored person, to notify officers of
      unauthorized movements, and to notify officers of tampering.

      Court of Appeals of Indiana | Opinion 32A01-1709-CR-2011 | January 11, 2018                       Page 2 of 7
      approximately 10:00 a.m., Officer Koebcke told her “to go directly home.” (Tr.

      at 11.) She did not.


[4]   The GPS tracking device tracked Keith going to numerous other locations prior

      to going home. Around noon, Keith went home but then left again. Keith

      returned to her home around 2:00 p.m. During her travels, Officer Koebcke

      sent messages to her monitoring unit advising Keith to “call [her home

      detention] officer immediately[.]” (Id. at 13.) She did not do so. “[A]t

      approximately five o’clock (5:00) . . . the anklet lost power and died.” (Id. at

      15.) Keith plugged it in “at approximately eleven (11) eleven [sic] fifteen (15)

      that evening.” (Id.) During that power loss, the home detention office “could

      not say for certain” where she had been. (Id.)


[5]   The State charged Keith under Indiana Code section 35-44.1-3-4(c) (2014),

      which states “[a] person who knowingly or intentionally fails to return to lawful

      detention following temporary leave granted for a specified purpose or limited

      period commits failure to return to lawful detention, a Level 6 felony.” The

      trial court found Keith had been “granted temporary leave . . . to leave from the

      . . . home detention office to her home and she failed to do so[;] therefore she []

      committed the offense of failure to return to lawful detention[.]” (Id. at 21.)

      The trial court ordered Keith to serve 180 days incarcerated, with credit for time

      served.



                                  Discussion and Decision

      Court of Appeals of Indiana | Opinion 32A01-1709-CR-2011 | January 11, 2018   Page 3 of 7
[6]   Keith asserts the State did not present sufficient evidence to prove she

      committed escape because her home cannot be considered “lawful detention”

      to which she failed to return, as required under the statutory definition of

      escape. See Ind. Code § 35-44.1-3-4(c). She argues the ankle monitor, not her

      home, was the lawful detention and she was not ever granted a temporary leave

      from which she failed to return because she never left the ankle monitor

      behind. 3


[7]   As Keith agrees she did not go home as ordered, but rather argues her home is

      not the place of lawful detention from which the State was required to prove she

      escaped, we must interpret the lawful detention statute. When faced with a

      question of statutory interpretation, our review is de novo. In re M.W., 913

      N.E.2d 784, 786 (Ind. Ct. App. 2009). We first decide if the statute is

      ambiguous. Id. If it is not, we need not and do not interpret it, but instead

      apply its plain and clear meaning. Id. If the statute is susceptible to more than

      one reasonable interpretation, it is ambiguous, and we must determine the

      legislature’s intent so that we can give effect to that intent. Maroney v. State, 849

      N.E.2d 745, 748 (Ind. Ct. App. 2006). Statutes must be read in harmony with

      related statutes. St. Margaret Mercy Healthcare Ctrs., Inc. v. Poland, 828 N.E.2d




      3
        Keith also argues she should have been charged under various other statutes that punish a violation of a
      home detention order rather than escape. However, as the State correctly argues, the legislature gives
      prosecutors the flexibility to charge a person as they see fit. See Boss v. State, 702 N.E.2d 782, 784 (Ind. Ct.
      Appl. 1998) (“prosecutor has broad discretion in determining what crimes to prosecute and what penalties to
      seek”); see also Gordon v. State, 981 N.E.2d 1215, 1220 (Ind. Ct. App. 2013) (neither the escape statute and the
      unauthorized absence from home detention statute are ambiguous; thus, the rule of lenity does not apply and
      the State is free to determine which to charge).

      Court of Appeals of Indiana | Opinion 32A01-1709-CR-2011 | January 11, 2018                          Page 4 of 7
      396, 402 (Ind. Ct. App. 2005), trans. denied. We assume the legislature intended

      statutory language to be applied in a logical manner consistent with the statute’s

      underlying policy and goals. B.K.C. v. State, 781 N.E.2d 1157, 1167 (Ind. Ct.

      App. 2003).


[8]   Lawful detention is defined by statute as:


                       (1) arrest;


                       (2) custody following surrender in lieu of arrest;


                       (3) detention in a penal facility;


                       (4) detention in a facility for custody of persons alleged or
                       found to be delinquent children;


                       (5) detention under a law authorizing civil commitment in
                       lieu of criminal proceedings or authorizing such detention
                       while criminal proceedings are held in abeyance;


                       (6) detention for extradition or deportation;


                       (7) placement in a community corrections program’s
                       residential facility;


                       (8) electronic monitoring;


                       (9) custody for purposes incident to any of the above
                       including transportation, medical diagnosis or treatment,
                       court appearances, work, or recreation; or



      Court of Appeals of Indiana | Opinion 32A01-1709-CR-2011 | January 11, 2018      Page 5 of 7
                        (10) any other detention for law enforcement purposes.


               (b) Except as provided in subsection (a)(7) and (a)(8), the term
               does not include supervision of a person on probation or parole
               or constraint incidental to release with or without bail.


               (c) The term does not include electronic monitoring through the
               use of an unmanned aerial vehicle under IC 35-33-5-9.


       Ind. Code § 35-31.5-2-186 (2014).


[9]    In Anglin v. State, 787 N.E.2d 1012 (Ind. Ct. App. 2003), trans. denied, we held

       Anglin had escaped from lawful detention even when he was merely told by the

       trial court to wait in the hallway to be transported to the sheriff’s department. 4

       We held that although Anglin was not in physical custody of a law enforcement

       officer at the time he left the courthouse, the trial court’s order was sufficient to

       place him in lawful detention for purposes of the statutory definition. Id. at

       1017.


[10]   Herein, Keith was placed on home detention, and the order placing her there

       required Keith to remain in her home except to attend probation appointments

       and have her monitoring device maintained. Then, after getting her monitoring

       device, Keith was told to “to go directly home.” (Tr. at 11.) Keith was ordered

       to be detained in her home similar to any prisoner in a formal jail or prison,




       4
        In Anglin, we interpreted the Indiana Code section 35-41-1-18(a)’s definition of “lawful detention.” In
       2012, this statute was replaced by Indiana Code section 35-31.5-2-186, with the same language in section (a)
       of both versions.

       Court of Appeals of Indiana | Opinion 32A01-1709-CR-2011 | January 11, 2018                       Page 6 of 7
       with the resulting monitoring of her actions and lack of autonomy to conduct

       her affairs outside the home. See Hickman v. State, 81 N.E.3d 1083, 1086 (Ind.

       Ct. App. 2017) (factors determining confinement include whether the

       placement in home detention was voluntary, the “degree of freedom of

       movement,” the “degree of direct supervision” by a state actor, and the “degree

       of autonomy and privacy enjoyed by the person in the conduct of his everyday

       life”).


[11]   Contrary to her arguments, the monitoring device was not the detention from

       which Keith had to flee to be guilty of escape; rather, her escape was effectuated

       by being absent from her home. For the purposes of home detention, her home

       was the place of lawful detention and she escaped from it first by not going

       there immediately from the home detention office and second by leaving again

       later in the day. See, e.g., Grabarczyk v. State, 772 N.E.2d 428, 432 (Ind. Ct. App.

       2002) (a home detention order requires the person to stay at home). The trial

       court found Keith had been “granted temporary leave . . . to leave from the . . .

       home detention office to her home and she failed to do so[;] therefore she []

       committed the offense of failure to return to lawful detention[.]” (Tr. at 21.) As

       the State provided sufficient evidence of her escape from her home, we affirm

       her conviction.


[12]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.



       Court of Appeals of Indiana | Opinion 32A01-1709-CR-2011 | January 11, 2018   Page 7 of 7
