MEMORANDUM DECISION
                                                                       Mar 19 2015, 9:26 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
Michael R. Fisher                                        Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Arturo Estrada-Medina,                                   March 19, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1409-CR-409
        v.                                               Appeal from the Marion Superior
                                                         Court Criminal Division 4
                                                         Honorable Lisa Borges, Judge
State of Indiana,                                        Cause No. 49G04-1305-FB-028012
Appellee-Plaintiff




Friedlander, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-409 | March 19, 2015          Page 1 of 9
[1]   Arturo Estrada-Medina appeals following his convictions of class B felony

      Rape1 and class D felony Criminal Confinement.2 He raises two issues on

      appeal, one of which we find dispositive: Do his convictions for rape and

      criminal confinement violate Indiana’s constitutional double jeopardy

      protections?

[2]   We reverse and remand with instructions.

[3]   In the early evening hours of September 24, 2006, then-seventeen-year-old

      D.W. went to the Berkley Commons apartments in Indianapolis to visit her

      boyfriend, Derek Reynolds. When she arrived, Reynolds was with his friend

      “Red” and a Hispanic man D.W. did not know. The group hung out in a park

      by the apartment complex while Reynolds, Red, and the Hispanic man drank

      beer. At some point, Derek suggested that they all go to the apartments’

      laundry facility, where D.W. had previously hung out with Reynolds on several

      occasions. D.W. led the way to the basement of the building where the laundry

      room was located. When she got into the room and turned around, she

      discovered that she was alone with the Hispanic man. D.W. tried to leave, but




      1
       Ind. Code Ann. § 35-42-4-1 (West, Westlaw 2013). Effective July 1, 2014, this offense has been reclassified
      as a Level 3 felony. See I.C. § 35-42-4-1 (West, Westlaw current with all legislation of the 2015 First Regular
      Session of the 119th General Assembly effective through February 23, 2015). Because the offense in this case
      was committed prior to that date, it retains its former classification as a class B felony.
      2
        I.C. § 35-42-3-3 (West, Westlaw 2013). Effective July 1, 2014, the criminal confinement statute has been
      revised and the offense has been reclassified as a Level 6 felony, which may be elevated to a Level 5, 3, or 2
      felony under certain circumstances. See I.C. § 35-42-3-3 (West, current with all legislation of the 2015 First
      Regular Session of the 119th General Assembly effective through February 23, 2015). Because the offense in
      this case was committed prior to that date, it retains its former classification as a class D felony.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-409 | March 19, 2015               Page 2 of 9
      the man blocked her way and grabbed her by the throat and squeezed. D.W.

      was scared and could not breathe. D.W. then ended up on the floor with the

      man on his knees between her legs. D.W. was crying and begging for him to let

      her go, and the man was telling her in Spanish to shut up. D.W. removed her

      pants and underwear because she “knew [she] wasn’t leaving the laundry room

      unless [she] did something.” Transcript at 130. The man then undressed and

      penetrated D.W.’s vagina with his penis while she continued to cry. After he

      ejaculated inside D.W.’s vagina, D.W. then grabbed her clothes and left the

      laundry room.

[4]   D.W. put her clothes back on outside, and almost immediately thereafter ran

      into Reynolds and Red. D.W. told Reynolds that she had been raped, and he

      told her not to call the police because there was an active warrant for his arrest.

      Shortly thereafter, a friend of D.W.’s contacted Deborah Schonfeld, who ran a

      program for at-risk youth in which D.W. participated. Schonfeld sent her

      husband to pick up D.W. and bring her back to their house. Schonfeld spent

      time talking to D.W., who was shaking, extremely distressed, and having

      difficulty communicating. Eventually, D.W. agreed to report the incident. She

      was then interviewed by police and taken to the hospital, where a rape kit was

      completed. In February 2007, a DNA profile was developed from sperm

      fractions found during the rape kit exam and the profile was uploaded into

      Indiana’s DNA database. No match was found at that time, and no arrests

      were made.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-409 | March 19, 2015   Page 3 of 9
[5]   Six years later, in April 2013, Indianapolis Metropolitan Police Detective David

      Miller was notified that there was a DNA match in the database with Estrada-

      Medina’s profile, which had been recently uploaded due to a criminal trespass

      conviction. Detective Miller contacted D.W., who stated emphatically that she

      wished to pursue charges. Subsequently conducted DNA testing confirmed

      that Estrada-Medina was the source of the DNA found during D.W.’s rape kit.

[6]   The State charged Estrada-Medina with class B felony rape, two counts of class

      D felony criminal confinement, and class D felony strangulation. A two-day

      jury trial commenced on July 14, 2014, at the conclusion of which Estrada-

      Medina was found guilty of rape and one count of criminal confinement and

      acquitted of the remaining charges. Estrada-Medina now appeals.

[7]   Estrada-Medina argues that his convictions for rape and criminal confinement

      violate Indiana’s constitutional double jeopardy protections. The double

      jeopardy clause found in article 1, section 14 of the Indiana Constitution “was

      intended to prevent the state from being able to proceed against a person twice

      for the same criminal transgression.” Richardson v. State, 717 N.E.2d 32, 49

      (Ind. 1999). Two or more offenses are the “same criminal transgression” for

      the purposes of the Indiana double jeopardy clause 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.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-409 | March 19, 2015   Page 4 of 9
[8]   In this case, Estrada-Medina challenges his convictions under the actual-

      evidence test, which “prohibits multiple convictions if there is ‘a reasonable

      possibility that the evidentiary facts used by the fact-finder to establish the

      essential elements of one offense may also have been used to establish the

      essential elements of a second challenged offense.’” Davis v. State, 770 N.E.2d

      319, 323 (Ind. 2002) (quoting Richardson v. State, 717 N.E.2d at 53).

      Establishing a “‘reasonable possibility’ that the jury used the same facts to reach

      two convictions requires substantially more than a logical possibility.” Lee v.

      State, 892 N.E.2d 1231, 1236 (Ind. 2008). Instead, the existence of a reasonable

      possibility “turns on a practical assessment of whether the jury may have

      latched on to exactly the same facts for both convictions.” Id. In applying this

      test, we seek “to identify the essential elements of each of the challenged crimes

      and to evaluate the evidence from the jury’s perspective, considering where

      relevant the jury instructions, argument of counsel, and other factors that may

      have guided the jury’s determination.” Wright v. State, 950 N.E.2d 365, 369

      (Ind. Ct. App. 2011).

[9]   On appeal, Estrada-Medina argues that his convictions violate double jeopardy

      principles because there is a reasonable possibility that the jury relied on the

      same conduct to support the criminal confinement conviction and to establish

      the force element of the rape conviction. “In addition to the instances covered

      by Richardson, ‘we have long adhered to a series of rules of statutory

      construction and common law that are often described as double jeopardy, but

      are not governed by the constitutional test set forth in Richardson.’” Guyton v.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-409 | March 19, 2015   Page 5 of 9
       State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quoting Pierce v. State, 761 N.E.2d

       826, 830 (Ind. 2002)). One of these rules prohibits “[c]onviction and

       punishment for a crime which consists of the very same act as an element of

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

       (quoting Richardson v. State, 717 N.E.2d at 56 (Sullivan, J., concurring)). Thus,

       if we determine that Estrada-Medina’s criminal confinement conviction is based

       on the same act that establishes the force element of his rape conviction, a

       double jeopardy violation has occurred.

[10]   “[A] person who ‘commits rape or criminal deviate conduct necessarily

       confines the victim at least long enough to complete such a forcible crime.’”

       Jacobs v. State, 2 N.E.3d 116, 122-23 (Ind. Ct. App. 2014) (quoting Gates v. State,

       759 N.E.2d 631, 632 (Ind. 2001)), summarily aff’d in relevant part, 22 N.E.3d

       1286 (Ind. 2015). For criminal confinement to constitute a separate crime,

       there must be proof of force to effectuate the confinement that goes beyond that

       necessary to effectuate the rape. See Ryle v. State, 549 N.E.2d 81, 85 n.7 (Ind.

       Ct. App. 1990), trans. denied. For example, in Sallee v. State, rape and criminal

       confinement convictions did not violate double jeopardy protections when, as

       the victim gave the defendant and his co-defendant a ride, the defendant pulled

       her into the backseat and would not let her out of the car despite her pleas, and

       the two defendants then took her to their house, where they repeatedly raped

       her. 777 N.E.2d 1204 (Ind. Ct. App. 2002), trans. denied.


[11]   On appeal, the State argues that the rape and criminal confinement convictions

       are supported by separate acts of force. Specifically, the State argues that the

       Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-409 | March 19, 2015   Page 6 of 9
       criminal confinement was accomplished when Estrada-Medina made D.W. get

       on the ground, and “[t]he confinement necessary to effectuate the rape . . . was

       [Estrada-Medina’s] act of physically touching D.W.’s body—by lying on her or

       next to her—in order to penetrate his penis into her vagina.” Appellee’s Brief at

       10.

[12]   Assuming arguendo that a factual distinction this fine could support separate

       convictions for rape and criminal confinement, we note that such distinction

       was not argued to the jury. The charging information presented to the jury

       alleged that Estrada-Medina committed rape by knowingly or intentionally

       having sexual intercourse with D.W., a member of the opposite sex, when

       D.W. was compelled by force or imminent threat of force. See I.C. § 35-42-4-1.

       The charging information for the relevant criminal confinement charge

       provided that Estrada-Medina committed the offense by “knowingly confin[ing]

       [D.W.] without the consent of [D.W.], by making [D.W.] get on the ground.”

       Appellant’s Appendix at 24; see also I.C. § 35-42-3-3 (West, Westlaw 2013)

       (providing that a person who “confines another person without the other

       person’s consent” commits class D felony criminal confinement).3 Thus,




       3
         The criminal confinement statute applicable at the time of these offenses provided that a defendant may
       commit class D felony criminal confinement in two distinct ways: either by “confin[ing] another person
       without the other person’s consent” or by “remov[ing] another person, by fraud, enticement, force, or threat
       of force, from one (1) place to another”. I.C. § 35-42-3-3 (West, Westlaw 2013); see also State v. Greene, 16
       N.E.3d 416, 419-20 (Ind. 2014) (explaining that under the previously applicable statute, “[t]wo distinct types
       of criminal confinement are encompassed: confinement by non-consensual restraint and confinement by
       forcible removal”). In this case, Estrada-Medina was charged with two counts of criminal confinement. In
       Count II, he was charged with criminal confinement by forcible removal for dragging D.W. into the laundry
       room. In closing arguments, the State conceded that no evidence had been presented to support Count II and
       that the jury should acquit Estrada-Medina on that count, which it did. In Count III, Estrada-Medina was

       Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-409 | March 19, 2015              Page 7 of 9
although the charging information for criminal confinement specified the

precise act supporting the charge, the charging information for rape contained

no similar specificity. Instead, it was in substance merely a recitation of the

relevant language of the rape statute. The jury instructions contained no

specific assertions as to which acts were alleged to support the force element of

the rape and which acts were alleged to support the criminal confinement

charge. In closing arguments, the State argued that Estrada-Medina committed

criminal confinement by forcing D.W. to get on the ground, but it made no

attempt to differentiate the force supporting the criminal confinement

conviction from the force used to accomplish the rape. Indeed, the State argued

to the jury that “[h]e puts her on the ground and then he forces her to have sex.

That’s rape.” Transcript at 325. This may well have been construed by the jury

as an invitation to rely on precisely the same act establishing the criminal

confinement conviction to establish the force element of rape. Although we

note that D.W. testified to other acts that could, at least theoretically, have been

relied upon to establish the force element of rape—e.g., that Estrada-Medina

blocked her exit from the laundry room and grabbed her by the throat and




charged with criminal confinement by non-consensual restraint for making D.W. get on the ground, and he
was convicted on this charge. We note, however, that with respect to Count III, the jury was instructed on
the elements of criminal confinement by forcible removal, not non-consensual restraint. See Appellant’s
Appendix at 154 (instructing the jury that to support a conviction for criminal confinement as charged in
Count III, the State must prove that Estrada-Medina “removed [D.W.] by force or threat of force from one
place to another”). Because we reverse with instructions to vacate Estrada-Medina’s criminal confinement
conviction, we need not address any potential problems arising from this inconsistency. Regardless of
whether Estrada-Medina was convicted of criminal confinement based on non-consensual restraint or
forcible removal, the evidence relied upon to support the offense was the same—that is, that Estrada-Medina
made D.W. get on the ground.

Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-409 | March 19, 2015             Page 8 of 9
       squeezed—the State did not present the evidence in a manner that eliminated

       the possibility that the jury would rely on the same evidence to establish both

       the criminal confinement and the force element of the rape. In other words,

       there is a reasonable possibility that the jury convicted Estrada-Medina of

       criminal confinement based on the very same act it relied upon to establish the

       force element of rape. Accordingly, the convictions violate double jeopardy

       protections, and we therefore remand with instructions to vacate the criminal

       confinement conviction. Because Estrada-Medina’s convictions were ordered

       to be served concurrently, his aggregate sentence will not change.


[13]   Judgment reversed and remanded with instructions.

       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-409 | March 19, 2015   Page 9 of 9
