MEMORANDUM DECISION
                                                                           Mar 14 2016, 6:07 am
Pursuant to Ind. Appellate Rule 65(D),
this 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
Deborah Markisohn                                        Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Basden Breakfield,                                       March 14, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1507-CR-846
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt Eisgruber,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G01-1402-FA-9438



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-846 | March 14, 2016              Page 1 of 8
                               Case Summary and Issues
[1]   Following a jury trial, Basden Breakfield was convicted of burglary, two counts

      of rape, two counts of criminal confinement, three counts of criminal deviate

      conduct, and three counts of battery. The trial court sentenced Breakfield to an

      aggregate sentence of ninety-two years in the Indiana Department of

      Correction. Breakfield appeals his convictions and sentence, raising two issues

      for our review: (1) whether his dual convictions of criminal confinement violate

      the continuing crime doctrine, and (2) whether the trial court abused its

      discretion in admitting irrelevant evidence at sentencing. Concluding the trial

      court did not abuse its discretion in admitting evidence at sentencing, but

      Breakfield’s convictions of criminal confinement violate the continuing crime

      doctrine, we affirm in part, reverse in part, and remand with instructions for the

      trial court to vacate one of the criminal confinement convictions.



                            Facts and Procedural History
[2]   In the early morning hours of February 23, 2014, R.F. awoke to a man, later

      identified as Breakfield, grabbing her by the ankles. As R.F. struggled to free

      herself, Breakfield jumped on the bed, pinned R.F.’s arms to the bed, and struck

      R.F. multiple times on the back of her head with his hand. Resigned to the fact

      she would be unable to free herself, R.F. stopped struggling. Breakfield then

      bound R.F.’s wrists and ankles with duct tape. Over the next several hours,

      Breakfield penetrated R.F.’s vagina with his fingers and penis, forced R.F. to

      perform oral sex, and struck R.F.’s head several times with a hammer.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-846 | March 14, 2016   Page 2 of 8
[3]   When R.F. did not arrive at work that morning, R.F.’s co-workers became

      concerned and attempted to contact her. Thereafter, the co-workers went to

      R.F.’s residence to check on her well-being. Upon arrival, the co-workers

      discovered a window above the home’s back door had been broken and called

      911. The police arrived and arrested Breakfield as he attempted to hide inside

      R.F.’s bedroom. When the police discovered R.F., her ankles and wrists were

      still bound.


[4]   The State charged Breakfield with Count I, burglary, a Class A felony; Counts

      II and III, rape, Class B felonies; Counts IV and V, criminal deviate conduct,

      Class B felonies; Count VI, criminal confinement, a Class B felony; Counts VII

      and VIII, battery, Class C felonies; Count IX, criminal confinement, a Class D

      felony; Counts X and XI, battery, Class A misdemeanors; and Count XII,

      criminal deviate conduct, a Class A felony. The jury found Breakfield not

      guilty as to Count VIII and guilty as to the remaining counts. The trial court

      entered judgment of conviction on Counts I-VII and Counts IX-XI.1


[5]   At the sentencing hearing, the State called Marion County Sherriff’s Deputy

      Jennifer Castellon, who was responsible for transporting Breakfield back to the

      county jail following the first day of trial. Deputy Castellon testified that, after

      the trial court adjourned for the day, she escorted Breakfield towards an

      elevator when Breakfield stated “he would like to do some of those things” to




      1
          The trial court merged Count XII with Count V.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-846 | March 14, 2016   Page 3 of 8
      her. Transcript at 318. Breakfield objected, arguing the evidence was not

      relevant; the trial court overruled the objection. Deputy Castellon further

      testified that she interpreted Breakfield’s comment as meaning Breakfield

      wanted to do the same things to her as he did to R.F. During its final

      statement, the State argued the trial court should not find any mitigating

      circumstances, citing Deputy Castellon’s testimony and the fact Breakfield was

      accused of committing battery against a law enforcement officer and fellow

      inmate while in jail awaiting trial for the offenses committed against R.F.


[6]   In its sentencing statement, the trial court did not reference Deputy Castellon’s

      testimony nor Breakfield’s alleged offenses while awaiting trial. Rather, the

      trial court identified the facts and circumstances of the case as the

      “overwhelming” aggravator; specifically, the trial court noted the

      “premeditative aspects” of the crime and the fact the “torture” occurred over a

      period of several hours outweighed any mitigating circumstances. Id. at 340.

      The trial court sentenced Breakfield to an aggregate sentence of ninety-two

      years in the Department of Correction. This appeal ensued.



                                Discussion and Decision
                              I. Continuing Crime Doctrine
[7]   Breakfield contends his dual convictions of criminal confinement violate the

      continuing crime doctrine, which the State concedes. The continuing crime

      doctrine “defines those instances where a defendant’s conduct amounts only to

      a single chargeable crime and prevents the State from charging a defendant
      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-846 | March 14, 2016   Page 4 of 8
      twice for the same continuous offense.” Koch v. State, 952 N.E.2d 359, 373

      (Ind. Ct. App. 2011), trans. denied. Specifically, the doctrine “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.” Id. (citation omitted).

      It is well-established one continuous period of confinement may result in only

      one criminal confinement conviction. Taylor v. State, 879 N.E.2d 1198, 1203

      (Ind. Ct. App. 2008). “Under this doctrine, the span of the . . . confinement is

      determined by the length of time of the unlawful detention necessary to

      perpetrate the crime. It begins when the unlawful detention is initiated and

      ends only when the victim both feels, and is in fact, free from detention.” Koch,

      952 N.E.2d at 374 (citation omitted).


[8]   Here, Breakfield initially grabbed R.F.’s ankles, jumped on her bed, and pinned

      her arms to the bed. R.F. attempted to free herself, but stopped struggling

      because she was afraid Breakfield would harm her if she tried to get away.

      Thereafter, Breakfield bound R.F.’s wrists and feet with duct tape. R.F.

      remained bound until police officers arrived and arrested Breakfield. There is

      nothing in the record to indicate R.F. felt, and was in fact, free from detention

      at any point. R.F. suffered through one continuous period of confinement, and

      we therefore conclude Breakfield’s dual convictions of criminal confinement

      violate the continuing crime doctrine and one must be reversed. On remand,




      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-846 | March 14, 2016   Page 5 of 8
       we instruct the trial court to vacate one of those convictions.2 See Leggs v. State,

       966 N.E.2d 204, 211 (Ind. Ct. App. 2012) (concluding the defendant’s dual

       criminal confinement convictions violated the continuing crime doctrine and

       ordering the trial court to vacate one of the convictions on remand).


                                               II. Sentencing
                                        A. Standard of Review
[9]    We review a trial court’s sentencing decision for an abuse of discretion.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218. An abuse of discretion occurs when the trial court’s decision is “clearly

       against the logic and effect of the facts and circumstances before the court, or

       the reasonable, probable, and actual deductions to be drawn therefrom.” Id.

       (citation omitted). A trial court may abuse its discretion in failing to enter a

       sentencing statement, finding aggravating or mitigating circumstances

       unsupported by the record, or noting reasons that are improper considerations

       as a matter of law. Id. at 490-91.


                          B. Admission of Breakfield’s Statement
[10]   Breakfield contends the trial court abused its discretion at sentencing in

       admitting evidence that was improper as a matter of law. Specifically,

       Breakfield argues Deputy Castellon’s testimony and the State’s reference to the




       2
        The sentences for the dual criminal confinement convictions were to be served concurrent to each other.
       Therefore, the trial court need not resentence Breakfield on remand.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-846 | March 14, 2016             Page 6 of 8
       alleged offenses committed by Breakfield while in jail were irrelevant to the

       sentencing proceedings. The State counters the evidence was relevant to show

       the trial court should not find any mitigating circumstances. We agree with the

       State.


[11]   At the outset, we note the rules of evidence do not apply to sentencing

       proceedings. Ind. Evidence Rule 101(d)(2). “The rationale for exempting

       certain proceedings, including sentencing, from the rules of evidence is to

       provide the trial judge with the widest range of relevant information in reaching

       an informed decision.” Dumas v. State, 803 N.E.2d 1113, 1120-21 (Ind. 2004).

       In determining what sentence to impose for a crime, the trial court may weigh

       aggravating and mitigating circumstances. See Ind. Code § 35-38-1-7.1(a), (b)

       (2014). In doing so, a court may consider—as a mitigating circumstance—

       whether the defendant’s character and attitude indicates he is unlikely to

       commit another crime. Ind. Code § 35-38-1-7.1(b)(8).


[12]   Here, Deputy Castellon testified Breakfield stated “he would like to do some of

       those things” to her. Tr. at 318. Deputy Castellon interpreted this as meaning

       Breakfield wanted to do the same things to her as he did to R.F. We conclude

       Deputy Castellon’s testimony was relevant to show Breakfield’s character,

       attitude, and propensity to reoffend. See Ind. Code § 35-38-1-7.1(b)(8). In

       addition, we conclude the State’s reference to the alleged offenses committed by

       Breakfield against a law enforcement officer and fellow inmate while awaiting

       trial was also relevant to show Breakfield’s character, attitude, and propensity

       to reoffend. See id.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-846 | March 14, 2016   Page 7 of 8
[13]   Finally, even if we were to assume the admission of the evidence was improper

       as a matter of law, there is nothing in the trial court’s sentencing statement

       indicating it noted, or gave any weight to, Deputy Castellon’s testimony or

       Breakfield’s alleged misconduct in jail. See Anglemyer, 868 N.E.2d at 490-91

       (stating a trial court abuses its discretion if the sentencing statement includes

       reasons that are improper considerations as a matter of law). Accordingly, the

       trial court did not abuse its discretion in admitting evidence at the sentencing

       hearing.



                                               Conclusion
[14]   Concluding the trial court did not abuse its discretion in the admission of

       evidence at sentencing, but that Breakfield’s dual convictions of criminal

       confinement violate the continuing crime doctrine, we affirm in part, reverse in

       part, and remand with instructions that one of the criminal confinement

       convictions be vacated.


[15]   Affirmed in part, reversed in part, and remanded with instructions.


       Barnes, J., and Altice, J., concur.




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