FOR PUBLICATION



ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

DARREN BEDWELL                                GREGORY F. ZOELLER
Marion County Public Defender                 Attorney General of Indiana
Indianapolis, Indiana
                                              BRIAN REITZ
                                              Deputy Attorney General
                                              Indianapolis, Indiana
                                                                            FILED
                                                                        Apr 23 2012, 9:32 am

                             IN THE
                                                                                CLERK
                   COURT OF APPEALS OF INDIANA                                of the supreme court,
                                                                              court of appeals and
                                                                                     tax court




RICHARD LEGGS,                                )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )      No. 49A02-1105-CR-522
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Lisa F. Borges, Judge
                          Cause No. 49G04-1002-FB-14436


                                    April 23, 2012

                             OPINION - FOR PUBLICATION

MAY, Judge
        Richard Leggs appeals his conviction of and sentence for two counts of Class B felony

criminal confinement1 and one count each of Class C felony intimidation,2 Class C felony

criminal recklessness,3 and Class A misdemeanor resisting law enforcement.4 He presents

five issues for our review:

        1.      Whether the charging information for the count of Class C felony intimidation

                was deficient;

        2.      Whether the State presented sufficient evidence Leggs committed Class C

                felony intimidation;

        3.      Whether the enhancement of three convictions based on Leggs’ use of a single

                knife subjected him to double jeopardy; and

        4.      Whether his two convictions of criminal confinement violated the “continuing

                crime” doctrine.

We affirm in part, reverse in part, and remand.

                          FACTS AND PROCEDURAL HISTORY5

        On February 24, 2010, Leggs and his wife, Kimberly, were home watching television

when Leggs got up to go to the kitchen. On his way out of the room, he called Kimberly a

“fat bitch.” (Tr. at 47.) Leggs returned to the room, walked past the television, and asked




1
  Ind. Code § 35-42-3-3(b)(2).
2
  Ind. Code § 35-45-2-1(b)(2).
3
  Ind. Code § 35-42-2-2(c)(2).
4
  Ind. Code § 35-44-3-3.
5
  We held oral argument on this matter on March 9, 2012, at Indiana University – Northwest in Gary, Indiana.
We thank the University for their hospitality, and commend counsel on their presentations.
                                                     2
Kimberly what she was looking at. Kimberly responded she was looking at the television, to

which Leggs replied, “You’re gonna die today. I hate you.” (Id. at 48.)

       Kimberly grabbed her purse and keys, and attempted to leave the residence, but Leggs

took them from her. She then tried to use her cell phone to call for help, but Leggs took the

cell phone. Leggs again said Kimberly was “gonna die,” (id. at 49), and he pulled a kitchen

knife from his pocket. Leggs pushed Kimberly on the bed and jumped on top of her. He

held the knife over her head and made stabbing motions toward her nose, ear, and temple.

Leggs told Kimberly, “I hate you. You don’t love me like you used to[,]” (id. at 51), and then

he stabbed her twice in the stomach.

       Kimberly bit Leggs and was able to push him from atop her. She ran toward the door

of the bedroom; Leggs followed her while making slashing motions with the knife, resulting

in a cut on Kimberly’s leg. Kimberly ran to the dining room, picked up a lamp, and struck

Leggs with it. The couple struggled and ended up on the floor. The knife fell out of Leggs’

hand, and he told Kimberly she was not “gonna leave there alive.” (Id. at 53.)

       At the time, Indianapolis Metropolitan Police Officers Scott Childers and Greg

Crabtree were in the Leggs’ apartment complex investigating a burglary in another unit.

Officer Childers heard Kimberly crying and Leggs threatening her, and he knocked on the

door of the Leggs’ apartment. Kimberly attempted to answer the door, but Leggs pushed her

back on the floor and held her there. Officer Childers heard Kimberly say, “let me out,” and

heard Leggs respond, “No, I’m not letting you out. I’m going to kill you.” (Id. at 64.)

Officer Childers knocked on the door again, and Leggs told Kimberly to open the door.

                                              3
        Kimberly opened the door and told Officer Childers, “I’ve been stabbed. Help me.”

(Id.) Leggs pushed Kimberly aside and attempted to run down the hall. Officer Childers

grabbed Leggs, and a struggle ensued. Officers Childers and Crabtree eventually were able

to subdue and handcuff Leggs. Kimberly was transported to the hospital, where she

underwent surgery.

        The State charged Leggs with two counts of Class B felony criminal confinement, two

counts of Class C felony battery,6 domestic battery as both a Class A misdemeanor7 and Class

D felony,8 and one count each of Class C felony intimidation, Class C felony criminal

recklessness, and Class A misdemeanor resisting law enforcement. For almost a year after he

was charged, Leggs was incompetent to stand trial due to cognitive and speech difficulties

resulting from a stroke in January 2010. On January 28, 2011, the trial court determined

Leggs was competent to stand trial. The State amended the charging information on March

24 to include an allegation Leggs was an habitual offender.9

        After a bench trial, the trial court entered convictions on all counts, but acquitted

Leggs of the habitual offender enhancement. During the sentencing hearing on May 20, the

trial court merged the two Class C felony battery counts and the Class D felony domestic

battery count10 into the second count of Class B felony criminal confinement. The State


6
  Ind. Code § 35-42-2-1(a)(3).
7
  Ind. Code § 35-42-2-1.3(a).
8
  Ind. Code § 35-42-2-1.3(b).
9
  Ind. Code § 35-50-2-8.
10
   The trial court already had merged the Class A misdemeanor domestic battery count into the Class D felony
domestic battery count, which differed only by proof Leggs had previously been convicted of domestic battery.
 See Ind. Code § 35-42-2-1.3(b) (elevating the Class A misdemeanor to a Class D felony if the defendant had a
prior conviction or committed the crime in front of a child under the age of sixteen).
                                                     4
requested the sentences for the two criminal confinement counts run consecutively, while

Leggs argued the two counts were part of a continuing course of conduct. The trial court

ordered the following four sentences served concurrently: fourteen years for Class B felony

criminal confinement, five years for Class C felony intimidation, 545 days for Class D felony

criminal recklessness, and 365 days for Class A misdemeanor resisting law enforcement. For

the second count of Class B felony criminal confinement, the trial court sentenced Leggs to

six years and ordered it served consecutive to his other sentences, for an aggregate sentence

of twenty years.

                            DISCUSSION AND DECISION

       1.     Charging Information for Intimidation

       In charging Leggs with Class C felony intimidation, the State alleged:

       Richard Leggs, on or about February 24, 2010, did communicate to Kimberly
       Leggs, another person, a threat to commit a forcible felony, that is: that
       Richard Leggs would kill Kimberly Leggs, in retaliation for a prior lawful act,
       that is: attempting to leave the residence, and while making said threat did
       draw or use a deadly weapon, that is: pulled a knife from his waistband[.]

(App. at 28-29.) The elements of Class C felony intimidation as charged against Leggs are:

       (a) A person who communicates a threat to another person, with the intent:
                                           ***
             (2) that the other person be placed in fear of retaliation for a prior
             lawful act;
                                           ***
       commits intimidation, a Class A misdemeanor.
       (b) However, the offense is a
             (1) Class D felony if:
                                           ***
                    (A) the threat is to commit a forcible felony;
                                           ***

                                             5
              (2) Class C felony if, while committing it, the person draws or uses a
              deadly weapon.

Ind. Code § 35-45-2-1.

       Leggs argues the charging information for Class C felony intimidation does not allege

that he acted with the intent to place Kimberly in fear. The State argues Leggs has waived

this issue for review, because he did not move to dismiss the charge against him. As the

State notes: “The proper method to challenge deficiencies in a charging information is to file

a motion to dismiss the information, no later than twenty days before the omnibus date.”

Miller v. State, 634 N.E.2d 57, 60 (Ind. Ct. App. 1994) (citing Ind. Code § 35-34-1-4(b)(1)).

       To avoid waiver, Leggs must demonstrate fundamental error. See id. (“Failure to

timely challenge the omission ordinarily would result in waiver of the issues, unless the

omission was so prejudicial to Miller’s rights that fundamental error resulted.”) (citations

omitted). For error in a charging information to be fundamental, “it must mislead the

defendant or fail to give him notice of the charges against him so that he is unable to prepare

a defense to the accusation.” Id. at 61. Leggs did not argue he did not understand the

charges against him or he was unable to formulate a defense. See Wine v. State, 637 N.E.2d

1369, 1374 (Ind. Ct. App. 1994) (no fundamental error where Wine did not demonstrate his

defense was impeded by the inadequacy of the charging information), trans. denied. Thus,

Leggs has not demonstrated fundamental error.




                                              6
                2.   Sufficiency of Evidence – Intimidation

       When reviewing sufficiency of evidence to support a conviction, we consider only the

probative evidence and reasonable inferences supporting the trial court’s decision. Drane v.

State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-finder’s role, and not ours, to assess

witness credibility and weigh the evidence to determine whether it is sufficient to support a

conviction. Id. To preserve this structure, when we are confronted with conflicting

evidence, we consider it most favorably to the trial court’s ruling. Id. We affirm a

conviction unless no reasonable fact-finder could find the elements of the crime proven

beyond a reasonable doubt. Id. It is therefore not necessary that the evidence overcome

every reasonable hypothesis of innocence; rather, the evidence is sufficient if an inference

reasonably may be drawn from it to support the trial court’s decision. Id. at 147.

       Leggs argues the State did not prove he had “specific intent to place [Kimberly] in

fear for trying to leave the residence,” (Br. of Appellant at 13), and Kimberly’s attempt to

leave was not a prior lawful act as required by Ind. Code § 35-45-2-1. In support of his

argument, Leggs relies on Casey v. State, in which we discussed the intent element of

intimidation:

       [I]t is apparent that the legislature intended to require the State to prove that
       the victim had engaged in a prior act, which was not contrary to law, and that
       the defendant intended to repay the victim for the prior lawful act. . . . [T]he
       State must establish that the legal act occurred prior to the threat and that the
       defendant intended to place the victim in fear of retaliation for that act.

676 N.E.2d 1069, 1072 (Ind. Ct. App. 1997). Leggs asserts Kimberly’s attempt to leave the



                                              7
apartment was not a “prior lawful act” because it did not occur before he threatened to kill

her. We disagree.

       The State presented evidence Leggs told Kimberly she was “gonna die tonight,” (Tr.

at 48), and then began stabbing in her direction. He then said, “You don’t love me like you

used to.” (Id. at 51.) The State argues Leggs’ actions were retaliation for his perception of

Kimberly’s feelings towards him, which was a lawful act. As this was a bench trial, we

presume the judge knows and will follow the applicable law. Donaldson v. State, 904 N.E.2d

294, 300 (Ind. Ct. App. 2009). The State’s argument reflects a reasonable inference to be

drawn from the evidence presented, and we hold the evidence was sufficient to convict Leggs

of intimidation.

       3.     Enhancement for Use of Knife in the Commission of the Crimes

       A defendant is subjected to double jeopardy “where a felony is elevated in class based

on the same statutory factor and factual basis that was used to elevate another felony in class,

[thus] the two cannot stand together and one must be reduced in class.” Pierce v. State, 761

N.E.2d 826, 830 (Ind. 2002). Three of Leggs’ crimes, two counts of intimidation and one

count of criminal confinement, were enhanced because he used a knife while committing

each crime. Leggs argues use of the same evidence to enhance all three crimes subjected

him to double jeopardy.

       In Hancock v. State, 768 N.E.2d 880, 880 (Ind. 2002), the trial court convicted

Hancock of Class A felony rape and Class A felony criminal deviate conduct. Both crimes

were enhanced because Hancock drugged the victim without the victim’s knowledge.

                                               8
Hancock was subjected to double jeopardy because evidence Hancock drugged the victim

was used to enhance both crimes. Id. at 880. Likewise, in Pierce, our Indiana Supreme

Court held the same bodily injury to the victim could not be used to enhance both the

burglary and the robbery charges against Pierce. Pierce, 761 N.E.2d at 830.

       The State asserts, citing Miller v. State, 790 N.E.2d 437, 439 (Ind. 2003), “[t]he use of

a ‘single deadly weapon’ during the commission of separate offenses may enhance the level

of each offense.’” (Br. of Appellee at 16.) The Miller Court reasoned the repeated use of the

same weapon to commit multiple crimes was not the “very same behavior” that would

implicate double jeopardy. Miller, 790 N.E.2d at 439. In his concurring opinion, Justice

Sullivan noted: “What justifies the multiple enhancements here is the repeated use of the

knife by the defendant in committing crimes for which he was convicted.” Id. (Sullivan, J.,

concurring) (emphasis in original).

       The facts of Hancock and Pierce are distinguishable from those in the instant case

because our holdings were based on single instances of conduct - in Hancock, a single

drugging the victim, and in Pierce, one instance of bodily injury. In contrast, Leggs used his

knife first to stab at Kimberly’s face, then to stab her in the stomach, then to slash at her leg,

and finally to hold her to the ground in their living room. We agree with the State’s assertion

that Leggs “made a decision to involve his knife in each of his crimes . . . [thus] each crime

may be elevated based on the use of the same knife.” (Br. of Appellee at 17.) Leggs was not

subjected to double jeopardy when he was convicted of multiple crimes enhanced by the use



                                                9
of a knife. See, e.g., Miller, 790 N.E.2d at 439 (repeated use of knife justified multiple

enhancements to crimes committed).

       4.     Criminal Confinement Convictions

       The continuing crime doctrine applies when actions “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.”

Firestone v. State, 838 N.E.2d 468, 471 (Ind. Ct. App. 2005). In such circumstances, the

State may convict the defendant of only one crime. Id. at 472.

       In Boyd v. State, 766 N.E.2d 396, 400 (Ind. Ct. App. 2002), we held: “[a] confinement

ends when the victim feels, and is, in fact, free from detention and a separate confinement

begins if and when detention of the victim is re-established.” Leggs contends, “from the time

Leggs took away [Kimberly]’s purse and keys until the time he told her to open the door,

there was no point at which she was ‘free from detention’ and free to leave the apartment.”

(Br. of Appellant at 9.)

       The State argues there were two separate instances of confinement. First, the State

asserts, Kimberly was confined to the bedroom, and Leggs stabbed her there. She was able

to leave the bedroom after biting Leggs, and the State contends the first instance of

confinement ended at that time. The second confinement, the State asserts, began when

Leggs prevented Kimberly from answering the door and indicated she would not leave the

apartment alive. It ended when Leggs allowed Kimberly to open the door for the police. We

disagree.

                                             10
       At trial, Kimberly testified after Leggs told her, “You’re gonna die today. I hate

you[,]” he took her purse, keys, and cell phone from her. (Tr. at 48.) Leggs then pulled a

knife out of his pocket and “pushed [Kimberly] – jumped on top of [her] and pushed [her]

back on the bed and just had the knife over [her] head.” (Id. at 50.) Kimberly testified Leggs

began “doing weird stuff” with the knife, such as “pretending like he was going to stick it up

[her] nose, and then in [her] ear, and then at [her] temple.” (Id.) Leggs then stabbed

Kimberly twice while they struggled on the bed, and she bit him.

       After she bit him, Kimberly got up off the bed and pushed Leggs. She testified she

was “running towards my bedroom door and he had the knife just kind of slashing it; caught

me on the back of the leg a little bit and I ran down the hallway in my house into my dining

room, there’s a little lamp and I hit him with the lamp.” (Id. at 51-52.) The State then asked

Kimberly, when presenting a picture of the lamp for admission into evidence, “that’s the

lamp you hit him with as you were trying to escape the apartment?” (Id. at 52-53.) Kimberly

answered affirmatively, and then testified, “when I hit him with the lamp and we were kind

of still struggling and I was still running – I wasn’t all the way – I wasn’t to my door, I was

started (sic) trying to get to my door. I tried to get to the door.” (Id. at 53.)

       Leggs then “pushed [Kimberly] back on the floor” and held her down. (Id. at 54.)

While Leggs held Kimberly on the floor, the police knocked on the door. Kimberly asked

who it was and testified she did not hear the response. After the response, Leggs “looked at

[Kimberly] and he looked at the knife and he took and threw the knife and then he told [her]

to open the door.” (Id. at 54-55.) Kimberly ran to the door, opened it, and told the police

                                               11
Leggs was trying to kill her. The police pursued and arrested Leggs, and called an

ambulance for Kimberly.

       Based on Kimberly’s testimony, there was never a time during the incident when she

felt free to leave. The evidence does permit the inference the State invites us to draw that

Kimberly felt unconfined when she was able to get up off the bed. However, she answered

affirmatively when asked if she hit Leggs with a lamp after leaving the bedroom, while she

was “trying to escape[.]” (Id. at 53.) Kimberly testified she was “trying to get to the door”

while Leggs was chasing her through the apartment. (Id.) Leggs told Kimberly she was not

going to leave the apartment alive and Leggs was going to kill her.

       Kimberly’s testimony established the continuing nature of the crime, which took place

over a short period of time, in the same apartment, with a single purpose – that Kimberly not

leave the apartment alive. Kimberly did not feel free from confinement until she opened the

door to the apartment; she testified she was trying to escape after leaving the bedroom, and

her goal in escaping was to reach the apartment door. Therefore, Leggs’ two convictions of

Class D criminal confinement violate the continuing crime doctrine, and one must be

reversed. We remand for reversal of one of Leggs’ criminal confinement charges and

resentencing.11




11
  Leggs argues his sentence was inappropriate based on the nature of his crime and his character. As we
remand for resentencing, we do not address that allegation of error.

                                                  12
                                      CONCLUSION

         Leggs waived his argument regarding the deficiencies in the charging information for

Class C felony intimidation because he did not file a motion to dismiss the charges at the trial

court level. Waiver notwithstanding, Leggs did not demonstrate the deficiencies in his

charging information rose to the level of fundamental error. There was sufficient evidence

Leggs committed Class C felony intimidation, and Leggs was not subjected to double

jeopardy when his convictions for several crimes were enhanced by his repeated use of a

knife.

         However, Leggs’ two convictions of Class B felony criminal confinement violate the

continuing crime doctrine. Accordingly, we reverse one of his criminal confinement

convictions and remand for resentencing.

         Affirmed in part, reversed in part, and remanded.

MATHIAS, J., and BRADFORD, J., concur.




                                              13
