MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Jun 25 2019, 10:11 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Stanley L. Campbell                                      Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Courtney L. Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

William E. Boyd,                                         June 25, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-160
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D06-1711-F5-332



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-160 | June 25, 2019                    Page 1 of 10
                                            Case Summary
[1]   William E. Boyd (“Boyd”) was convicted of Criminal Confinement, as a Level

      3 felony,1 Battery, as a Level 5 felony,2 and Sexual Battery, as a Level 6 felony.3

      On appeal, he challenges the Criminal Confinement conviction. We affirm in

      part, reverse in part, and remand with instructions to enter judgment upon the

      Level 5 felony Battery as a Class B misdemeanor and resentence Boyd

      accordingly.



                                                    Issues
[2]   We address the following issues:


                 I.           Whether the State presented sufficient evidence that Boyd
                              committed Criminal Confinement resulting in serious
                              bodily injury; and


                 II.          Whether the Criminal Confinement enhancement and the
                              Battery enhancement were based upon the same facts.


                                   Facts and Procedural History
[3]   During the evening of November 13, 2017, Sheri Fincher (“Fincher”) visited

      the home of her neighbor, Barbara Barnes (“Barnes”). Boyd was also a guest.




      1
          Ind. Code § 35-42-3-3.
      2
          I.C. § 35-42-2-1.
      3
          I.C. § 35-42-4-8.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-160 | June 25, 2019        Page 2 of 10
      He was drinking heavily and became verbally and physically abusive toward

      Fincher. Barnes told Boyd to leave, and Fincher also decided to leave despite

      Barnes urging her to stay for her own safety. Fincher went back to her

      apartment and was playing a game when Boyd knocked at her door. He asked

      to wait in the apartment until his ride showed up and Fincher agreed that he

      could do so.


[4]   Fincher went back to her bedroom to continue playing her game and Boyd

      followed. An intoxicated Boyd repeatedly questioned Fincher and demanded

      that she listen to him. When Fincher continued to play her game and did not

      answer all the questions, Boyd became angry and struck Fincher on the left side

      of her face. Fincher was knocked unconscious; when she regained

      consciousness, she became aware that she was bleeding from her mouth. At

      first, she feared that her teeth had been knocked out.


[5]   Boyd told Fincher to get up and clean herself up in the bathroom. Fincher

      complied, with Boyd following closely behind her. As Fincher rinsed her

      bloody mouth and washed her face, Boyd stood behind her. Fincher returned

      to the bedroom, with Boyd following. He then struck her in the head three

      more times, took his clothes off, threw Fincher onto the bed, and laid on top of

      her. Boyd stated that it was his birthday and he “wanted to be with someone.”

      Tr. Vol. I, pg. 39. Fincher responded that she did not want to be with Boyd and

      that she was instead prepared to be killed.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-160 | June 25, 2019   Page 3 of 10
[6]   Boyd passed out and fell against the bedroom wall. Seizing her opportunity to

      escape, Fincher grabbed her shoes and ran outside. She ran to Barnes’s

      apartment and awakened her by pounding on the window. Barnes called 9-1-1.

      At around 3:00 a.m., responding police officers found Boyd in Fincher’s

      bedroom, nude and apparently passed out. He was transported to a hospital

      due to his extreme level of intoxication. Fincher received medical treatment for

      her injuries a few days later. She had a ruptured eardrum, a red mark on her

      neck, and abrasions. She later testified that she had experienced lingering back

      pain and difficulty hearing.


[7]   On October 24, 2018, Boyd was brought to trial before a jury on charges of

      Criminal Confinement, Battery, Sexual Battery, and Strangulation. He was

      acquitted of Strangulation and convicted of the remaining charges. He received

      an aggregate sentence of nine years imprisonment (nine years for Criminal

      Confinement and concurrent sentences of three years for Battery and one year

      for Sexual Battery). He now appeals.



                                 Discussion and Decision
                                 Sufficiency of the Evidence
[8]   Our standard of review for sufficiency of the evidence claims is well settled.

      We consider only the probative evidence and reasonable inferences supporting

      the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not

      reweigh the evidence or judge witness credibility. Id. We will affirm the

      conviction unless no reasonable fact finder could find the elements of the crime
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-160 | June 25, 2019   Page 4 of 10
       proven beyond a reasonable doubt. Id. The evidence is sufficient if an

       inference may be reasonably drawn from it to support the verdict. Id. at 147.


[9]    Pursuant to Indiana Code Section 35-42-3-3(a), a person who knowingly or

       intentionally confines another person without the other person’s consent

       commits criminal confinement, a Level 6 felony. There are two types of

       criminal confinement, confinement by non-consensual physical restraint and by

       forcible removal. State v. Greene, 16 N.E.3d 416, 420 (Ind. 2014). The offense is

       a Level 3 felony if it results in serious bodily injury to a person other than the

       confining person. I.C. § 35-42-3-3(b)(2)(B). Boyd challenges both the evidence

       of confinement and the elevation of the offense.


[10]   To “confine” a person means to “substantially interfere with the liberty of a

       person.” I.C. § 35-42-3-1. “We have previously 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.” Kelley v. State, 2 N.E.3d 777,

       787 (Ind. Ct. App. 2014). Fincher testified that, when she regained

       consciousness after the initial blow to her head, Boyd ordered her to go into the

       bathroom. He followed and “was standing right behind [her]” and when she

       returned to the bedroom, he was “right behind [her]” as well. Tr. Vol. I, pg. 38.

       Fincher testified that she could not leave after Boyd entered her bedroom

       because “he would not move from in front of me.” Id. at 36. The evidence is

       sufficient to permit a reasonable fact finder to conclude that – apart from

       striking Fincher in the commission of Battery and holding Fincher down in the



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-160 | June 25, 2019   Page 5 of 10
       commission of Sexual Battery – Boyd repeatedly blocked Fincher’s movements,

       thereby substantially interfering with her liberty.


[11]   The charged offense was elevated to a Level 3 felony because of Fincher’s

       serious bodily injury.4 Boyd concedes that Fincher was injured and that a fact

       finder could have found that she sustained serious bodily injury. However, he

       contends that the State presented no evidence that Fincher was injured as a

       result of the confinement. The State responds that Boyd’s act of knocking

       Fincher unconscious facilitated her confinement, and thus there was a temporal

       link between the injury and confinement such that they constituted one

       incident.


[12]   The State directs our attention to Greene, 16 N.E.3d at 416. Greene had been

       convicted of Class B felony criminal confinement stemming from a two-day

       incident in which he held his girlfriend captive. Greene had strangled his

       girlfriend, and rendered her unconscious; when she regained consciousness, she

       was in another room of the house. Greene was charged with criminal

       confinement by removal. On transfer following the denial of post-conviction

       relief, Greene argued that his trial counsel had been ineffective for failing to

       argue that Greene was entitled to relief under Long v. State, 743 N.E.2d 253

       (Ind. 2001).




       4
         “Serious bodily injury” is “bodily injury that creates a substantial risk of death or that causes serious
       permanent disfigurement, unconsciousness, extreme pain, permanent or protracted loss or impairment of the
       function of a bodily member or organ, or loss of a fetus.” I.C. § 35-31.5-2-292.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-160 | June 25, 2019                   Page 6 of 10
[13]   The Greene Court summarized the holding in Long:


               Long insisted that although there was evidence that his victim []
               suffered fractured facial bones, there was no evidence that these
               injuries resulted from her being forcefully removed from one
               place to another. Without such evidence, he reasoned, there was
               insufficient evidence to establish the serious bodily injury
               enhancement. The State countered that “the jury could have
               inferred that [the victim]’s injuries to her nose and eye socket
               were caused during her movement from one place to another”
               but did not identify any evidence as proof. On review, we found
               that “the evidence was insufficient to establish that the conduct
               constituting the charged offense of criminal confinement resulted in
               serious bodily injury.”


               Crucially, “the charged offense” was that (1) Long (2) knowingly
               or intentionally (3) removed the victim from one place to another
               (4) by force. Ind. Code § 35-42-3-3. At issue were elements three
               and four, and without identifying the circumstances under which
               [the victim] sustained facial fractures, the State could not
               establish beyond a reasonable doubt that [the victim]’s serious
               bodily injury occurred during her forcible removal from one place
               to another. This was likely attributable to the facts of the case:
               Long and two others confined [the victim] for possibly longer
               than one week in an attic, and in the course of her captivity and
               murder, inflicted numerous injuries upon her. Under these
               circumstances, the State was likely unable to isolate precisely
               when [the victim] sustained her fractures. Thus, the jury was
               unable to find that serious bodily injury resulted from her forcible
               removal.


       16 N.E.3d at 420 (citing Long, 743 N.E.2d at 259-60, 262) (emphasis added in

       Greene).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-160 | June 25, 2019   Page 7 of 10
[14]   After examining the Long decision, the Greene Court found it factually

       distinguishable. Greene’s victim had testified that Greene strangled her to

       unconsciousness. As such, “the jury could have reasonably inferred that

       Greene’s act of force, strangulation, both facilitated his removal of [the victim]

       from their bedroom to their living room and resulted in serious bodily injury to

       her.” Id. The Court recognized that there must be a “temporal link” between

       inducement and removal “so as to constitute one incident” but did not “require

       the serious bodily injury to be suffered by the victim during the actual act of

       removal from one place to another.” Id. at 421. It held that “serious bodily

       injury to the victim must be sustained during the charged offense of criminal

       confinement … Thus, the victim must suffer serious bodily injury as the result

       of the act of forcible removal, whether or not the act of force occurs

       simultaneously with the act of removal.” Id. at 423.


[15]   Here, Boyd was charged with confinement by restraint as opposed to

       confinement by removal. Nonetheless, we agree with the State that there is a

       temporal link here between the force and restraint employed – Boyd gained

       control of Fincher by rendering her unconscious and when she regained

       consciousness, he directed her movements and impeded her escape. The jury

       could reasonably conclude that Boyd’s confinement of Fincher resulted in

       serious bodily injury. However, we proceed to determine whether Boyd has

       incurred multiple penal consequences for the same serious bodily injury.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-160 | June 25, 2019   Page 8 of 10
                      Double Jeopardy – Elevation of Offense
[16]   Frequently discussed under the general rubric of Indiana double jeopardy

       jurisprudence, we recognize rules of statutory construction and common law

       that are in addition to the protections afforded by the Indiana Double Jeopardy

       Clause. Zieman v. State, 990 N.E.2d 53, 61 9Ind. Ct. App. 2013). One

       prohibition is against “conviction and punishment for an enhancement of a

       crime where the enhancement is imposed for the very same behavior or harm as

       another crime for which the defendant has been convicted and punished.”

       Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002).


[17]   Here, the charging information stated the elements of the crimes but did not

       include details to indicate which facts supported the individual charges. The

       State alleged and demonstrated that Fincher had sustained serious bodily injury

       but did not, in closing argument, attempt to attribute a specific injury to a

       specific crime. Our review of the evidence discloses the following. Boyd struck

       Fincher in the head four times; she suffered a ruptured eardrum and

       impairment of her hearing. She experienced lingering back pain (and this

       appears from her testimony to be attributed to her being held down with the

       force of Boyd’s weight during the commission of Sexual Battery). The

       elevation of the Criminal Confinement offense and the elevation of the Battery

       offense are based upon evidence that Fincher sustained serious bodily injury

       from Boyd striking her on her head. Multiple enhancements based upon the

       same facts cannot stand, and we may reduce one of the offenses to obviate

       double jeopardy concerns. Caldwell v. State, 43 N.E.3d 258, 269 (Ind. Ct. App.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-160 | June 25, 2019   Page 9 of 10
       2015). As Battery is the offense having lesser penal consequences, we elect to

       revise the Battery offense to a Class B misdemeanor. 5 See Thompson v. State, 82

       N.E.3d 376, 383 (Ind. Ct.App. 2017) (recognizing that a reviewing court may

       remedy a violation by reducing either conviction to a less serious form of the

       same offense if doing so will eliminate the violation).



                                               Conclusion
[18]   There is sufficient evidence to support Boyd’s conviction of Criminal

       Confinement, as a Level 3 felony. However, to obviate double jeopardy

       concerns, we reduce the Battery conviction to a Class B misdemeanor.


[19]   Affirmed in part, reversed in part, and remanded.


       Riley, J., and Pyle, J., concur.




       5
        Battery, as a Class B misdemeanor, is committed when a person knowingly or intentionally touches another
       person in a rude, insolent, or angry manner. I.C. § 35-42-2-1(c)(1).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-160 | June 25, 2019                Page 10 of 10
