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:

DALE W. ARNETT                                   GREGORY F. ZOELLER
Winchester, Indiana                              Attorney General of Indiana

                                                 JAMES B. MARTIN
                                                 Deputy Attorney General

                                                                               FILED
                                                 Indianapolis, Indiana

                                                                           Feb 26 2013, 9:26 am

                              IN THE                                               CLERK
                                                                                 of the supreme court,

                    COURT OF APPEALS OF INDIANA                                  court of appeals and
                                                                                        tax court




STANLEY SHORT,                                   )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )        No. 69A01-1206-CR-268
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE RIPLEY CIRCUIT COURT
                           The Honorable Carl H. Taul, Judge
                              Cause No. 69C01-1105-FA-4



                                      February 26, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

      Stanley Short appeals his sentence following his convictions for rape, as a Class A

felony; criminal deviate conduct, as a Class A felony; criminal confinement, as a Class B

felony; battery, as a Class C felony; and battery, as a Class A misdemeanor. Short

presents two issues for our review, which we restate as:

      1.     Whether his convictions for rape and criminal deviate conduct
             violate double jeopardy principles.

      2.     Whether the trial court abused its discretion when it imposed
             consecutive sentences.

      We affirm.

                      FACTS AND PROCEDURAL HISTORY

      Short and L.C. married in 2010, but a short time later, L.C. filed for divorce. On

May 25, 2011, L.C. came home from taking her children to school and found Short inside

her house. Short was holding a hammer and said to L.C., “You’re gonna be with me.

I’m gonna have you one last time.” Transcript at 64. L.C. told Short to leave, and then

she started to dial 911 on her cell phone. Short refused to leave and grabbed her cell

phone from her. L.C. tried to leave the house, but Short had locked the door. L.C.

started screaming, and Short hit her in the side of the head with the hammer. Short then

held the hammer up and said, “If you don’t have sex with me one last time, I’m gonna

really hurt you.” Id. at 66. L.C. then put her hands up and said, “I’ll do what you want.

Don’t hit me again[.]” Id.

      Short proceeded to place L.C. in handcuffs and forced her upstairs into a bedroom.

Short told L.C. to take her pants off, which she did. But when she could not get her shirt


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off, he cut it off with a box cutter. Short then handcuffed L.C. to the bed and raped her.

At some point, he stopped and told L.C. that she was going to perform oral sex on him.

Short then put his penis in front of L.C.’s mouth, but she told him that she could not do it.

L.C. told Short that she felt like she was going to vomit. L.C. begged Short to get

something to stop the bleeding on her head, which he did. Short then started looking

through pictures of L.C. on her cell phone, and he accused her of having sex with

someone else, which she denied. Short then performed oral sex on L.C. while she was

still handcuffed to the bed.

       After approximately one and a half hours, L.C. told Short that her mother was

supposed to come over to her house that day and the two of them were going to run

errands together. L.C. asked him whether she could call her mother to cancel their plans,

and he agreed. Short dialed the phone for L.C. Her father answered, and she told him to

tell her mother “not to come over. Something’s come up.” Id. at 77. L.C. was not able

to convey anything to her father to indicate that she was in trouble. After the phone call,

Short was concerned that L.C.’s mother might still come by the house looking for L.C.

Short then used duct tape, handcuffs, and zip ties to secure L.C. to the bed, and he went

outside to move her car out of sight.

       When Short came back after moving the car, L.C. told Short that she loved him

and that they could be together if he would let her go. She asked him whether she could

get cleaned up, and he untied her. Short was holding a hammer and watching L.C. while

she took a bath. L.C. begged Short to put the hammer down, but he refused. L.C. then

told Short that she had to go pay her electric bill that day or else her electricity was going


                                              3
to be shut off for nonpayment. Short did not believe L.C., but he listened while she

called the electric company and confirmed that she had to pay the bill that day. L.C. told

Short that she would not try to run away if he went with her to pay the bill, and he finally

agreed.

       L.C. drove while Short sat in the front passenger seat of her car. First, L.C.

withdrew money from the drive-through window at the bank near her house. Then L.C.

started crying and told Short that she needed to get some makeup from a nearby store.

L.C. convinced him that she needed to look nice or else someone would “notice

something’s wrong.” Id. at 89. Inside the store, L.C. tried to think of a way to get help

without Short hurting her or someone else, but she did not come up with a plan. They

bought some makeup and left the store. Then, as L.C. was driving, with Short in the

passenger seat, L.C. saw a “great, big, huge” man and two other men standing near a hot

dog stand. Id. at 91. So L.C. pulled the car up next to the men, jumped out of the car,

and ran “right behind the biggest one.” Id. L.C. then began screaming, “He just raped

me,” and she showed the men the blood on her head. Id. She pleaded for help and asked

them to call the police. Short fled the scene, and it was several days before police found

him, at L.C.’s residence, and arrested him.

       The State charged Short with rape, as a Class A felony; criminal deviate conduct,

as a Class A felony; criminal confinement, as a Class B felony; battery, as a Class C

felony; and domestic battery, as a Class A misdemeanor. A jury found him guilty as

charged. The trial court entered judgment of conviction accordingly and sentenced Short

as follows: thirty years for rape (Count One); thirty years for criminal deviate conduct


                                              4
(Count Two); fifteen years for criminal confinement (Count Three); six years for battery

(Count Four); and one year for domestic battery (Count Five). The trial court ordered

that the sentences on Counts One and Two would run consecutively, and the sentences on

Counts Three through Five would run concurrent with each other and consecutive to the

sentences on Counts One and Two, for an aggregate term of seventy-five years. This

appeal ensued.

                            DISCUSSION AND DECISION

                              Issue One: Double Jeopardy

         Short first contends that because both the rape and criminal deviate conduct

convictions were elevated to Class A felonies based on the same imminent threat of

force, namely, Short’s wielding a hammer, they violate double jeopardy principles. In

support of his contention on this issue, Short cites to Pierce v. State, 761 N.E.2d 826 (Ind.

2002).    But in Pierce, the defendant’s burglary and robbery convictions were both

elevated to higher classes of felonies based on the same bodily injury to the victim, not a

threat of force.

         As we explained in Brown v. State, 633 N.E.2d 322, 324 (Ind. Ct. App. 1994),

“[w]e have refused to extend [case law prohibiting the use of the same bodily injury to

elevate two convictions] to cases elevating offenses committed while armed.”             The

circumstances are distinguishable “because the threat of harm, which cause[s] the

elevation of the felonies, [i]s distinct during the commission of separate offenses[.]” Id.

Whereas in the other cases, such as Pierce, “the elevation of offenses was based upon one

instance of bodily injury.” See id. We hold that Short’s convictions for rape and


                                             5
criminal deviate conduct, both as Class A felonies, do not violate double jeopardy

principles.

                            Issue Two: Consecutive Sentences

       Short next contends that the trial court abused its discretion when it imposed

consecutive sentences. In particular, Short maintains that his offenses constitute a “single

episode encounter” and, as such, the trial court was prohibited from imposing consecutive

sentences. Brief of Appellant at 12. We cannot agree.

       Sentencing decisions rest within the sound discretion of the trial court and are

reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482,

490 (Ind. 2007), clarified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2007). An

abuse of discretion occurs if the 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.

       In support of his contention on this issue, Short cites to Kocielko v. State, 938

N.E.2d 243, 251 (Ind. Ct. App. 2010), where another panel of this court held that the

defendant could not receive separate sentences for two acts of sexual misconduct “when

the acts took place in one confrontation involving one victim.” But, in Vermillion v.

State, 978 N.E.2d 459, 465-66 (Ind. Ct. App. 2012), yet another panel of this court

“provide[d] context for Kocielko” in rejecting the same argument Short makes here, and

we adopt that panel’s reasoning. As the Vermillion court explained:

       Before Richardson supplied the current double-jeopardy standard, our
       Supreme Court held in a series of cases that “the imposition of two
       sentences for the same injurious consequences sustained by the same victim
       during a single confrontation” violated both the federal and state double-
                                              6
      jeopardy prohibitions. Bowling v. State, 560 N.E.2d 658, 660 (Ind. 1990);
      see also Watkins v. State, 575 N.E.2d 624, 625 (Ind. 1991); Ellis v. State,
      528 N.E.2d 60, 61 (Ind. 1988); Bevill v. State, 472 N.E.2d 1247, 1254 (Ind.
      1985). When Richardson was decided in 1999, it abrogated a number of
      cases that articulated the “single incident” reasoning found in Bowling.
      However, Richardson made no mention of Bowling.

             Richardson’s effect on Bowling was not examined until 2010, in
      Kocielko.[] In Kocielko, the defendant got into bed with his teenage
      stepdaughter, placed her hand on his penis, and moved it in circles. He also
      pulled down her shorts and penetrated her anus with his penis. Kocielko,
      938 N.E.2d at 248. Kocielko was convicted of two counts of sexual
      misconduct with a minor, one count as a Class B felony, and one count as a
      Class C felony. He was also adjudicated a habitual offender. On appeal,
      another panel of this Court, the Kocielko Court, reversed the ruling of the
      trial court, concluding that under Bowling, Kocielko could not receive
      separate sentences for the two acts of sexual misconduct “when the acts
      took place in one confrontation involving one victim.” Id. at 251. The
      Kocielko Court remanded with instructions that the trial court set aside
      Kocielko’s Class C felony conviction. Id.

              Kocielko was revisited in early 2011 on rehearing. There, the State
      argued that Richardson, which provided, among other things, the statutory-
      elements and actual-evidence tests, had overruled Bowling’s “single
      incident” analysis. The Kocielko Court disagreed, explaining that Bowling
      had not been expressly overruled and therefore continued to stand for the
      proposition that “a sentence must reflect the episodic nature of the crimes
      committed.” Kocielko, 943 N.E.2d at 1282. However, the Court reinstated
      Kocielko’s Class C felony conviction it had earlier vacated and affirmed the
      trial court’s order that the sentences run concurrently. Our Supreme Court
      denied transfer in Kocielko in May 2011.

             Kocielko is not easily applied here. Consecutive sentencing was
      never at issue. Double jeopardy was. To the extent that Kocielko may be
      read to suggest that our trial courts may not impose consecutive sentences
      for crimes that arise out of a single confrontation involving a single victim,
      we cannot agree. A trial court may impose consecutive sentences for
      separate and distinct crimes that arise out of a single confrontation
      involving the same victim—subject to Richardson’s, double-jeopardy
      protections, other sentencing mandates, and our abuse-of-discretion review.

(Emphasis added, footnote omitted).



                                            7
      Here, over the course of a few hours, Short hit L.C. on the head with a hammer,

raped her twice vaginally, attempted to get her to perform oral sex on him, and performed

oral sex on her. As we discussed in Issue One, there is no double jeopardy violation here.

And Indiana Code Section 35-50-1-2 expressly authorizes the imposition of consecutive

sentences where, as here, a defendant is convicted of crimes of violence. See, e.g., Sallee

v. State, 777 N.E.2d 1204, 1216 (Ind. Ct. App. 2002) (affirming consecutive sentences

and aggregate 103 year sentence on convictions for rape, criminal deviate conduct, and

criminal confinement where offenses transpired over approximate four-hour period of

time), trans. denied. We hold that the trial court did not abuse its discretion when it

imposed consecutive sentences in sentencing Short.

      Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.




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