                                                                         FILED
MEMORANDUM DECISION                                                  Jul 06 2016, 9:26 am


Pursuant to Ind. Appellate Rule 65(D),                                   CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
this Memorandum Decision shall not be                                     and Tax Court

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
Mark Edward Hervey                                       Gregory F. Zoeller
Krasutsky & Hervey, LLC                                  Attorney General of Indiana
Indianapolis, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Rodrigo Hernandez,                                       July 6, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1510-CR-1686
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Angela D. Davis, Judge
                                                         The Honorable Allan W. Reid,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         49G16-1407-FD-33869



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016          Page 1 of 19
[1]   Following a bench trial, Rodrigo Hernandez (“Hernandez”) was convicted of

      Class D felony criminal confinement1 and Class D felony domestic battery

      committed in the presence of a child.2 Hernandez appeals and raises four issues

      that we consolidate and restate as:


                 I. Whether the State presented sufficient evidence to convict
                 Hernandez of Class D felony criminal confinement and Class D
                 felony domestic battery; and

                 II. Whether Hernandez’s convictions violate double jeopardy
                 principles.


[2]   We affirm.3


                                      Facts and Procedural History
[3]   Over the course of seven to ten years, Hernandez and a woman named

      Gabriela Plata (“Plata”) were involved in an “on and off” relationship,

      although during that time Hernandez was married to another woman. Tr. at 4-

      5, 27. According to Plata, she and Hernandez lived together, at one point, for a

      couple of months. She also maintains that they have one daughter together, a

      fact which Hernandez neither admits nor denies. That child, who was age six




      1
       See Ind. Code § 35-42-3-3(a)(1). We note that the statutes under which Hernandez was convicted were
      amended effective July 1, 2014; however, we apply the statutes that were in effect at the time he committed
      his offenses in May 2014.
      2
          See Ind. Code § 35-42-2-1.3(a).
      3
       Hernandez was also convicted of Class D felony battery resulting in bodily injury, Class A misdemeanor
      domestic battery, and Class A misdemeanor battery resulting in bodily injury, but those three convictions
      were merged into the Class D felony domestic battery conviction.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016              Page 2 of 19
      at the time of the incident at issue, lived with Plata and Plata’s other minor

      daughter (together, “Daughters”) in an Indianapolis apartment.


[4]   On May 30, 2014, around 7:00 or 8:00 p.m., Plata went to Hernandez’s place of

      employment, a night club where Hernandez worked as a disc jockey, and she

      brought Daughters with her. According to Plata, she went there to confront

      Hernandez about a rude and vulgar voicemail that he had left her earlier in the

      day; however, Hernandez asserted that she came to his employment to confront

      him because he had ignored texts that Plata had sent to him earlier in the day.

      Plata and Daughters did not ever leave the car, but Plata exchanged words with

      Hernandez, and then she left.


[5]   Later that night, at around 2:00 a.m. on May 31, Plata was home and asleep in

      her bed. Daughters were also there, sleeping with Plata in her bed. Plata was

      awakened by the sound of loud knocking at her front door. She got up, went to

      another room, looked out, and upon seeing that it was Hernandez, she started

      walking back to her bedroom. However, the knocking continued and was loud,

      so she went to the door and opened it slightly. She told him, “[T]here is no

      reason for you to be here knocking at my door.” Tr. at 9. She tried to shut the

      door, but Hernandez pushed the door open with one hand and pushed her with

      the other. Plata fell to the floor, and “at the same time . . . he shut[ ] the door

      behind him.” Id. at 11.


[6]   When Plata tried to stand up, Hernandez held her to the floor by pushing with

      his hand or arm on her left arm. He hit and kicked her while she was on the


      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016   Page 3 of 19
      ground. She struggled, and when she was able to get herself up, she told

      Hernandez to leave, but he sat down in her nearby dining room and laughed at

      her, saying, “Look at you, always thinking you’re so tough.” Id. at 13. Plata

      could not call the police, as her cell phone remained in her bedroom, and she

      was “trying to prevent . . . all of that ending up happening in my room in front

      of my [D]aughters.” Id. at 14. Hernandez warned Plata to “be careful,”

      stating, “I can kill you myself.” Id. After running his finger across her neck, in

      a slicing motion, he left her apartment.


[7]   Plata immediately contacted police, who responded and spoke with her, but did

      not take any photographs because the officer did not see any visible signs of

      injury. After police left, Plata returned to bed, and when she woke in the

      morning, Plata was sore. She noticed some scratch marks, redness, and

      bruising on her arms and legs, so she took pictures. On Tuesday, June 2, 2014,

      Plata applied for and obtained a protective order against Hernandez. While

      applying for the protective order, the employee assisting her noticed bruising.

      Police thereafter arrived and took pictures of Plata’s arms, back, and legs.


[8]   On July 7, 2014, the State charged Hernandez with the following five counts:

      Count I, Class D felony criminal confinement; Count II, Class D felony

      domestic battery; Count III, Class D felony battery resulting in bodily injury;

      Count IV, Class A misdemeanor domestic battery; and Count V, Class A

      misdemeanor battery resulting in bodily injury. Hernandez waived his right to

      a jury trial.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016   Page 4 of 19
[9]    At the July 24, 2015 bench trial, Plata testified that Hernandez’s knocking at

       her door was loud, and she did not want to wake the neighbors or Daughters,

       so she opened the door enough to allow her to tell him to leave. She said that,

       after he pushed the door open and she fell, he held her to the ground. She

       described, “He’s holding me down,” and “I can’t get up.” Id. at 12. Hernandez

       kicked Plata in her back, arms, and legs. Plata testified that Hernandez was

       “mad and loud.” Id. at 10. She said she was “praying for” Daughters and was

       trying to prevent the altercation “from happening in my room,” where

       Daughters were asleep. Id. at 13. The pictures that Plata took of herself that

       morning when she awoke were admitted into evidence, as were the ones taken

       by police on June 2.


[10]   Thereafter, Hernandez testified in his defense.4 He explained that Plata came to

       his place of employment because she was angry that he had not answered her

       earlier text messages. He stated that Daughters were in the car with Plata at his

       place of employment, as she angrily spoke to him, and they exchanged heated

       words. As to why he went to her apartment at about 2:00 a.m., after he left

       work, Hernandez testified, “[B]ecause she left when she was angry and she

       drinks and I was worried about her drinking and driving and I was worried

       about the [D]aughters.” Id. at 32. Hernandez testified that, contrary to what

       Plata had said while testifying, he knocked quietly at her door, one time. He




       4
        The record reflects that a Spanish interpreter was used during Hernandez’s testimony. Tr. at 34; Appellant’s
       App. at 28 (“Interpreter services used”).

       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016              Page 5 of 19
       said that she answered the door quickly, which indicated to him that she had

       been awake. Hernandez told her that he “just want[ed] to talk.” Id. at 33. He

       testified that he did not enter her apartment right away, explaining that initially

       he “waited outside[,]” but then went “into her house [] because she got

       aggressive and she was yelling loudly.” Id. Hernandez stated that Plata was

       gesturing at him and then “collapsed” or “fell” at the door. Id. at 36. He lifted

       her up, they went inside, and he closed the door and sat down. When Plata

       started insulting “my wife and daughters,” Hernandez left, slamming the door.

       Id. at 37. Hernandez denied ever pushing Plata, holding her down, or kicking

       or hitting her. He said that Plata “was the one that was upset” and that he tried

       to calm her. Id. at 41.


[11]   The trial court took the matter under advisement, later issuing an order, finding,

       among other things, “The court finds Mr. Hernandez’[s] testimony not credible

       and Ms. Plata’s testimony credible.” Appellant’s App. at 8. The trial court found

       Hernandez guilty of all charges, but ordered that Counts II through V merge,

       and it entered judgment of conviction on Counts I and II. Hernandez filed a

       motion to correct error, alleging that the evidence was insufficient to prove the

       charged offenses because Plata’s testimony was not credible, and her pictured

       injuries were not consistent with her testimony that Hernandez kicked and hit

       her; the trial court denied the motion. Hernandez now appeals.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016   Page 6 of 19
                                      Discussion and Decision

                                  I. Sufficiency of the Evidence
[12]   Hernandez claims the evidence was insufficient to convict him of criminal

       confinement and felony domestic battery. When reviewing the sufficiency of

       the evidence to support a conviction, we must consider only the probative

       evidence and reasonable inferences supporting the verdict. Boyd v. State, 889

       N.E.2d 321, 325 (Ind. Ct. App. 2008), trans. denied. We do not assess witness

       credibility or reweigh the evidence. Id. We consider conflicting evidence most

       favorably to the trial court’s ruling. Id. We affirm the conviction unless “no

       reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt.” Id. It is not necessary that the evidence overcome every

       reasonable hypothesis of innocence. Id. The evidence is sufficient if an

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


                                         A. Criminal Confinement

[13]   Hernandez was convicted of Class D felony criminal confinement. Indiana’s

       criminal confinement statute provides, in pertinent part, that:


               (a) [a] person who knowingly or intentionally:


               (1) confines another person without the other person’s consent;
               or


               (2) removes another person, by fraud, enticement, force, or threat
               of force, from one (1) place to another;



       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016   Page 7 of 19
               commits criminal confinement. Except as provided in subsection
               (b), the offense of criminal confinement is a Class D felony.


       Ind. Code § 35-42-3-3; State v. Greene, 16 N.E.3d 416, 419 (Ind. 2014). The

       statute encompasses two distinct types of criminal confinement: confinement

       by non-consensual restraint and confinement by forcible removal. Greene, 16

       N.E.3d at 420-21. Hernandez was charged with and convicted of confinement

       by non-consensual restraint.


[14]   Hernandez argues that the evidence was insufficient to convict him because

       “the State offered no direct evidence that Hernandez restrained Plata’s liberty,”

       noting that “at no time did Plata ever testify that she felt confined.” Appellant’s

       Br. at 17-18. He suggests that there was no evidence to establish confinement

       beyond or separate from the evidence that was used to establish the battery. Id.

       at 17. We disagree.


[15]   While Plata may not have expressly used the phrase “I felt confined,” she

       expressed the confinement by describing it. She testified that Hernandez, after

       pushing his way inside her home, shut the door behind him. She asked him to

       leave, multiple times, and he would not. He held her down on the floor by

       pressing on her left arm, which, because she was positioned on her side, pinned

       the right side of her body to the floor. She tried to stand “and pull herself to

       safety,” but Hernandez held her down. Tr. at 12. From Plata’s testimony, the

       trial court could have reasonably inferred that she was confined. To the extent

       that Hernandez argues that that the act of holding down Plata to the floor was

       “necessary to effectuate the crime of battery,” we reject that claim. Id. at 18.
       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016   Page 8 of 19
       He could have kicked, hit, and otherwise battered her without pinning her to

       the floor. We find the evidence was sufficient to convict Hernandez of Class D

       felony criminal confinement.


                                          B. Felony Domestic Battery

[16]   Hernandez was charged with and convicted of Class D felony domestic

       battery.5 The offense of domestic battery is governed by Indiana Code section

       35-42-2-1.3, which provides:


                A person who knowingly or intentionally touches an individual
                who:


                (1) is or was a spouse of the other person;


                (2) is or was living as if a spouse of the other person as provided
                in subsection (c); or


                (3) has a child in common with the other person;


                in a rude, insolent, or angry manner that results in bodily injury
                to the person described in subdivision (1), (2), or (3) commits
                domestic battery, a Class A misdemeanor.


       The offense “is a Class D felony if the person who committed the offense . . .

       committed the offense in the physical presence of a child less than sixteen (16)




       5
        Hernandez claims that the evidence was insufficient to convict him on counts II and III (Class D felony
       domestic battery and Class D felony battery resulting in bodily injury, respectively); however, judgment of
       conviction was only entered on Count II, and thus, our analysis only concerns that conviction.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016               Page 9 of 19
       years of age, knowing that the child was present and might be able to see or

       hear the offense.” Ind. Code § 35-42-2-1.3(b)(2). “Presence” is defined as

       knowingly being within either the possible sight or hearing of a child.” True v.

       State, 954 N.E.2d 1105, 1111 (Ind. Ct. App. 2011). That is, the child does not

       have to actually sense the battery; there only need be the possibility that the

       child “might” see or hear it. Id. This court has noted that the word “might”

       generally represents a weaker possibility or probability than the word “may.”

       Boyd, 889 N.E.2d at 325 (citing American Heritage Dictionary of the English

       Language at 1113).


[17]   Initially, Hernandez argues that the evidence was not sufficient to convict him

       of felony domestic battery because Plata’s testimony was incredibly dubious.6

       Under the incredible dubiosity rule,

               [i]f a sole witness presents inherently improbable testimony and
               there is a complete lack of circumstantial evidence, a defendant’s
               conviction may be reversed. This is appropriate only where the
               court has confronted inherently improbable testimony or coerced,
               equivocal, wholly uncorroborated testimony of incredible
               dubiosity. Application of this rule is rare and the standard to be
               applied is whether the testimony is so incredibly dubious or
               inherently improbable that no reasonable person could believe it.




       6
        Hernandez does not expressly contest that he was in a domestic relationship with Plata or that they have a
       child together. We further note that this court has recognized that a defendant may be convicted of domestic
       battery on an individual with whom he or she was in an extramarital relationship. Bowling v. State, 995
       N.E.2d 715, 718 (Ind. Ct. App. 2013).

       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016            Page 10 of 19
       Morell v. State, 933 N.E.2d 484, 492 (Ind. Ct. App. 2010) (quotations and

       citations omitted). “[T]he standard for dubious testimony is inherent

       contradiction, not contradiction between the testimony of witnesses.” Id.


[18]   Hernandez points to nothing inherently improbable or contradictory about

       Plata’s testimony. Rather, he claims that Plata’s version of events, describing

       what transpired at the apartment, was completely false, maintaining that,

       contrary to what she said, he knocked quietly once, she came to the door right

       away, they spoke, she collapsed, he lifted her up and got her inside, and he shut

       the door only because she was loud and angry. The trial court determined that

       Hernandez’s version was not credible and Plata’s version was credible, and we

       will not reweigh the evidence or assess witness credibility. Palacios v. State, 926

       N.E.2d 1026, 1034 (Ind. Ct. App. 2010). Furthermore, the incredibly dubiosity

       rule applies only where “there is a complete lack of circumstantial evidence.”

       Id. Here, the State presented pictures taken by Plata the morning after the

       incident as well as pictures taken two days later by police, which showed

       bruising to Plata’s upper left arm and her left leg and scratches to her neck that

       corroborated her testimony. State’s Exs. 8-13. Based on the foregoing, we find

       that the incredible dubiosity rule is inapplicable.


[19]   Next, Hernandez asserts that the State failed to demonstrate that Daughters

       were present in the apartment. However, Plata testified the girls lived with her

       at the apartment and were asleep with Plata in her bed that night. Plata

       described that she was afraid Hernandez’s knocking and subsequent behavior in

       her apartment were going to wake them, and she was “praying for” Daughters

       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016   Page 11 of 19
       and hoping the altercation would not move to the bedroom where they were

       sleeping. Tr. at 13. To the extent that Hernandez argues that there was no

       evidence that he knew Daughters were present, we again are not persuaded.

       Plata testified that the girls lived with her and that she had an ongoing

       relationship with Hernandez for up to ten years; thus it was reasonable for the

       trial court to infer that Hernandez knew the girls lived with Plata. Furthermore,

       Hernandez explained that the reason he went to Plata’s apartment in the early

       morning hours after he got off work was to check on Daughters, stating, “I was

       worried about [Plata] drinking and driving and I was worried about the

       [D]aughters.” Id. at 32. From these facts, it was reasonable for the trier of fact

       to infer that Hernandez knew Daughters, who were under age sixteen, were

       present at the apartment at 2:00 a.m.


[20]   Hernandez next argues that “the record is void of any evidence that there was

       the possibility that the children might see or hear the battery,” as is necessary

       for the Class D felony domestic battery conviction. Appellant’s Br. at 11. While

       there was no direct evidence of the exact distance from the apartment’s

       bedroom, where Daughters were in bed, to the area inside the front door, where

       the altercation with Hernandez took place, there was other evidence presented

       from which the trial court could have inferred Daughters might have seen or

       heard the altercation. Plata and Daughters lived in an apartment. Plata, asleep

       in her room, was awakened by Hernandez’s loud and repeated knocking at the

       front door, the volume of which was loud enough that it not only woke her up,

       but she feared that it might wake up her neighbors as well as Daughters. The


       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016   Page 12 of 19
       altercation began near the front door and moved to or near the dining room.

       Plata testified that after Hernandez was inside, he held her to the ground, while

       she struggled to get up and told him repeatedly to leave. After he released his

       hold on Plata, he sat in a chair and laughed at her for thinking she was “tough.”

       Tr. at 13. According to Hernandez, he “slammed” the door when he left

       because Plata was speaking negatively about his wife and children. Id. at 37.

       We find that, from the evidence presented, the trial court could have inferred

       that Daughters “might be able to see or hear the offense” as required under the

       statute.


[21]   Hernandez urges that this case is similar to Young v. State, 980 N.E.2d 412, 423

       (Ind. Ct. App. 2012), where this court determined that the evidence presented

       was insufficient for the jury to conclude that Young committed domestic

       battery “knowing that the child was present and might be able to see or hear the

       offense” and reversed Young’s Class D felony domestic battery conviction and

       remanded with instructions to enter judgment of conviction for Class A

       misdemeanor domestic battery. Id. Hernandez asks us to do the same.

       However, we find that the facts of Young are distinguishable from those before

       us today.


[22]   Young and Blanca Medrano (“Mother”) were the parents of two minor

       children, a two-year-old and an infant. While at their apartment one morning,

       they argued. At the time, a friend named Dulce Gomez (“Gomez”) was at the

       apartment, and she saw Young and Mother argue, but she did not observe any

       physical contact between Mother and Young. Gomez left the apartment

       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016   Page 13 of 19
       around 10:30 a.m. About noon, Mother walked to a nearby fire station, crying

       and holding an infant. Acting Lieutenant Michael Hochstetler (“Hochstetler”)

       spoke with Mother and inquired what was wrong, and he observed she had

       bruising on her body. Mother told Hochstetler that her husband, Young, had

       beaten her and left with their other child. Mother told Hochstetler that her

       bruises were from her husband beating her “at their apartment across the street”

       about “15 minutes ago.” Id. at 416. Young was charged with, among other

       things, Class D felony domestic battery.


[23]   At trial, Mother could not be found and, consequently, did not testify. Gomez

       testified that she saw the parties argue, but did not see any physical contact, and

       she left at 10:30 a.m. Hochstetler testified that Mother, who arrived at the fire

       station around noon, did not tell him where the children were when the

       incident happened, nor did he ask her. Id. at 423. The jury found Young

       guilty.


[24]   On appeal, Young argued that the evidence was insufficient to prove that he

       committed the domestic battery “knowing that the child was present and might

       be able to see or hear the offense.” Id. This court agreed, observing that

       “Gomez left, at the very least, a full hour before the incident occurred,” and

       while Hochstetler testified that Mother told him the incident happened about

       fifteen minutes prior “at their apartment,” there was no evidence as to precisely

       where the incident took place and where the children were during the incident.

       Id. Given that “the only evidence as to the location of the incident and of the

       children during the incident is the vague preposition ‘at,’” this court held that

       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016   Page 14 of 19
       the evidence was insufficient for the jury to conclude that Young committed

       domestic battery knowing that the child was present and might be able to see or

       hear the offense, as is required to elevate the offense to a Class D felony under

       Indiana Code 35-42-2-1.3(b)(2). Id.


[25]   In contrast to Young, where there was a complete lack of testimony concerning

       “where the incident took place and where the children were during the

       incident,” the trial court in this case heard Mother testify that she was in her

       apartment, asleep in her bed with Daughters, when she was awakened by

       Hernandez’s loud knocking at the front door. After Hernandez pushed his way

       inside the apartment, a physical struggle ensued. Plata testified that she tried to

       prevent the situation from moving to the bedroom. Again, under our standard

       of review, we examine whether an inference may reasonably be drawn from the

       evidence to support the verdict. Palacios, 926 N.E.2d at 1034. We find that,

       here, the trial court reasonably could have inferred that Daughters, who were

       asleep in a bedroom of the apartment, “might be able to see or hear the

       offense.” Accordingly, the State presented sufficient evidence to support

       Hernandez’s Class D felony domestic battery conviction.


                                          II. Double Jeopardy
[26]   Hernandez argues his convictions violate Indiana’s constitutional prohibition

       against double jeopardy. Indiana’s Double Jeopardy Clause (“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


       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016   Page 15 of 19
       twice for the same criminal transgression.” Jones v. State, 976 N.E.2d 1271,

       1275 (Ind. Ct. App. 2012) (citing Richardson v. State, 717 N.E.2d 32, 49 (Ind.

       1999)), trans. denied. Two or more offenses are the “same offense” in violation

       of the 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.


[27]   Under the “actual evidence” test, the evidence presented at trial is examined to

       determine whether each challenged offense was established by separate and

       distinct facts. Id. To show that two challenged offenses constitute the “same

       offense” in a claim of double jeopardy, a defendant must demonstrate 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 all of the essential elements of a second challenged offense. Id. at

       1275-76. The “reasonable possibility” that the fact-finder used the same facts to

       support two convictions must be more than a “logical possibility,” and rather, it

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

       exactly the same facts for both convictions.” Lee v. State, 892 N.E.2d 1231,

       1236 (Ind. 2008). If there is “no sufficiently substantial likelihood” that the jury

       used the same evidentiary facts to establish the essential elements of the two

       offenses, then the possibility is remote and not reasonable. Hopkins v. State, 759

       N.E.2d 633, 640 (Ind. 2001).




       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016   Page 16 of 19
[28]   The fact that the same evidence may have been used to establish a single

       element of each of two offenses does not constitute a double jeopardy violation.

       Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002). As long as each conviction

       requires proof of at least one unique evidentiary fact, the convictions are not

       barred by double jeopardy. Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002).

       Whether a conviction violates Indiana’s prohibition against double jeopardy is

       a question of law and is reviewed de novo. Jones, 976 N.E.2d at 1275.


[29]   The State charged Hernandez with Class D felony criminal confinement by

       alleging that he “did knowingly confine [] Plata without the consent of said

       person[.]” Appellant’s App. at 4. It charged him with Class D felony domestic

       battery by alleging that Hernandez “did knowingly in a rude, insolent, or angry

       manner touch [] Plata . . . and further said touching result[ed] in bodily injury

       to the other person, specifically: bruising and/or scratch and/or pain” and that

       Hernandez “committed said offense in the presence of [either Daughter],” a

       child less than sixteen years of age “knowing that the child was present and

       might be able to see or hear the offense.” Id. As our Supreme Court has

       observed, where the confinement of a victim is greater than that which is

       inherently necessary to commit a crime, the confinement is a separate criminal

       transgression. See Hopkins, 759 N.E.2d at 641 (where defendant’s confinement

       of victims extended beyond what was necessary to rob them, convictions for

       robbery and confinement were based on separate facts and did not constitute

       double jeopardy).




       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016   Page 17 of 19
[30]   In this case, the two charged offenses do not share any common essential

       elements. Rather, Hernandez claims that his convictions violate the “actual

       evidence” test, contending that the evidence used by the trial court to establish

       that he touched and injured Plata in a “rude, insolent, or angry manner” was

       the same evidence used to establish the offense of criminal confinement.

       Appellant’s Br. at 19. However, the State maintains that the evidence used to

       support each of Hernandez’s convictions was distinct. We agree.


[31]   Here, criminal confinement was proved by evidence that Hernandez pushed

       Plata down and pinned her to the floor by putting pressure on her left arm, such

       that her right side was pressed to the floor; she attempted to get up, but he

       would not release her. Domestic battery was proved by evidence that

       Hernandez kicked Plata and also hit her with his hand or hands, which caused

       bruising, redness, and injury. That is, the evidence that Hernandez pinned

       down Plata and held her to the floor was not necessary to support the battery

       conviction.


[32]   Based on the record before us, we do not find that there is a reasonable

       possibility that the trial court used the same actual evidence to find that

       Hernandez committed domestic battery and criminal confinement.

       Hernandez’s convictions for Class D felony criminal confinement and Class D

       felony domestic battery did not violate the prohibition against double jeopardy.

       See Jones, 976 N.E. at 1278 (finding no violation of actual evidence test where

       defendant slapped, bit, and choked girlfriend, and he also pushed her to couch,

       sat on her, and told her that she “couldn’t get up”); Hardley v. State, 893 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016   Page 18 of 19
       1140, 1145 (Ind. Ct. App. 2008), (finding no violation of actual evidence test

       where defendant slapped victim, who fell on mattress, and defendant thereafter

       restrained victim on mattress and beat and kicked her), aff’d on other grounds, 905

       N.E.2d 399 (Ind. 2009).


[33]   Affirmed.


[34]   Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016   Page 19 of 19
