MEMORANDUM DECISION
                                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D),                                          Apr 13 2016, 6:37 am
this Memorandum Decision shall not be
                                                                                    CLERK
regarded as precedent or cited before any                                       Indiana Supreme Court
                                                                                   Court of Appeals
court except for the purpose of establishing                                         and Tax Court

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
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Karl Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Arcine Cook,                                             April 13, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         49A02-1508-CR-1157
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark D. Stoner,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Jeffrey Marchal,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G06-1502-F3-4922



Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1157 | April 13, 2016             Page 1 of 8
                                             Case Summary
[1]   Arcine Cook appeals his conviction for Level 3 felony criminal confinement

      with a deadly weapon. We affirm.


                                                      Issue
[2]   The sole issue before us is whether there is sufficient evidence that Cook

      committed confinement while armed with a deadly weapon.


                                                     Facts
[3]   Cook was involved in a romantic relationship with Marshelle Lowe in early

      2015. On the night of February 6, 2015, Lowe picked Cook up from his job.

      Lowe drove Cook to an ATM, where he withdrew cash, then the two went to a

      liquor store before going to Lowe’s home in Indianapolis. Cook gave Lowe

      $140 from the ATM as gas money for her driving him to and from work. After

      arriving at Lowe’s home, Cook began drinking heavily; Lowe does not drink.

      Sometime in the early morning hours of February 7, 2015, Cook became

      belligerent, as he had in the past when drinking. Lowe then told Cook that she

      sometimes audio recorded him on her cell phone when he got drunk and

      belligerent and she played a prior recording for him.


[4]   After hearing this recording, Cook became angrier and began acting as if he was

      going to leave, although he was dependent upon Lowe to drive him places.

      Lowe then activated audio recording on her cell phone again as she got dressed

      and prepared to drive Cook to his residence. After Lowe got her purse and was

      about to go out to her car, Cook grabbed her purse and said, “Well, where my
      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1157 | April 13, 2016   Page 2 of 8
      bread at? Give me my bread.” Tr. p. 29. Cook and Lowe then began

      struggling over the purse until Cook, who is considerably larger than Lowe,

      pinned her on the floor on her back while he sat on her stomach. Cook rifled

      through Lowe’s purse. At first Lowe believed Cook was looking for the money

      he had given her earlier in the evening, but when Lowe told Cook the money

      was in her wallet he said, “F*** the money.” Id. at 32. Cook then dug deeper

      into Lowe’s purse and found her licensed handgun, which he knew from

      previous experience Lowe carried in her purse.1 Cook cocked the gun and

      pointed it at Lowe’s chest, then noticed it was unloaded and asked her, “Where

      the shells at?” Id. Lowe falsely told Cook they were upstairs under her bed.

      Cook accused her of lying, put the gun in his back pocket, and continued

      looking through her purse for a magazine clip while he remained on top of her.


[5]   Finally, Cook dumped out the contents of Lowe’s purse, and a magazine clip

      fell onto the floor. Lowe managed to grab the clip before Cook did. Cook and

      Lowe struggled over possession of the clip, each biting the other, until Lowe

      told Cook that she might be pregnant. At that point, Cook got up off of Lowe.

      Lowe still had the clip, but Cook pointed the gun at Lowe’s back while he held

      her arms and forced her into a bathroom. Lowe was still holding the clip, but

      Cook but did not seem to notice this. Cook yelled at Lowe in the bathroom for

      three to five minutes, at one point cocking the gun before realizing again that it

      was unloaded. Then, Cook opened the door to the bathroom and told Lowe to



      1
          Cook had seen Lowe remove her gun from her purse on at least one prior occasion.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1157 | April 13, 2016   Page 3 of 8
      go get the clip. Lowe threw the clip on the floor without Cook noticing, then

      managed to flee from the home and asked a neighbor to call 911. Cook still had

      Lowe’s gun when she fled. An officer responding to the 911 call found the gun

      under Lowe’s couch, where Cook had told him he put it after claiming to have

      seized it from Lowe when she had pointed it at him.


[6]   The State charged Cook with Level 3 felony confinement, Level 3 felony

      strangulation, and Class A misdemeanor battery, and also alleged that he was

      an habitual offender. After a bench trial, Cook was found guilty of all three

      counts; Cook then pled guilty to the habitual offender allegation. The trial

      court entered a judgment of conviction only for Level 3 felony confinement and

      sentenced Cook accordingly. Cook now appeals.


                                                   Analysis
[7]   Cook’s sole claim is that there is insufficient evidence he possessed a firearm

      while he confined Lowe.2 When reviewing a claim of insufficient evidence to

      support a conviction, we neither reweigh the evidence nor assess the credibility

      of witnesses. Bell v. State, 31 N.E.3d 495, 499 (Ind. 2015). We consider only

      the evidence and reasonable inferences drawn therefrom that support the

      conviction and will affirm if there is probative evidence from which a




      2
       On appeal, Cook does not deny that he confined Lowe by sitting on top of her; he does contend he was not
      adequately charged with any confinement related to forcing Lowe into the bathroom.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1157 | April 13, 2016          Page 4 of 8
      reasonable fact-finder could have found the defendant guilty beyond a

      reasonable doubt. Id.


[8]   A person who knowingly or intentionally confines another person without the

      other person’s consent commits Level 6 criminal confinement. Ind. Code § 35-

      42-3-3(a). The offense is elevated to a Level 3 felony if it is committed while the

      defendant is “armed with a deadly weapon.” I.C. § 35-42-3-3(b)(2). By

      statutory definition, a firearm is considered a “deadly weapon” regardless of

      whether it is loaded. I.C. § 35-31.5-2-86(a)(1). There is no requirement that a

      firearm actually be used during a confinement in order to enhance the offense

      for being committed while armed with a deadly weapon. Mallard v. State, 816

      N.E.2d 53, 57 (Ind. Ct. App. 2004), trans. denied. The purpose of enhancing

      punishment for committing a crime while armed with a deadly weapon is that it

      creates an actual heightened risk of harm to the victim of the offense. Gray v.

      State, 903 N.E.2d 940, 944 (Ind. 2009).


[9]   Cook contends he was not “armed” with a deadly weapon because he never

      fully gained possession of Lowe’s handgun and merely retrieved it from her

      purse to prevent her from using it against him. This argument is an invitation

      to reweigh the evidence and assess witness credibility, which we cannot do. As

      revealed by Lowe’s testimony and by the cell phone audio recording of the

      incident, the total initial period of Cook’s confinement of Lowe, before he let

      her up and forced her into the bathroom, lasted approximately ten minutes. At

      some point, no later than three to four minutes into the confinement, Cook

      obtained Lowe’s gun; Lowe can be heard on the recording asking Cook why he

      Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1157 | April 13, 2016   Page 5 of 8
       had her gun, and he responded that it was because she was pushing him. Lowe

       asked Cook to put her gun down, and he did not. A few minutes later, while

       Cook was still on top of Lowe, Lowe asked Cook why he wanted her magazine

       clip and if he was going to kill her. Cook retained possession of the gun and

       pointed it at her while he forced her into the bathroom and while they were in

       the bathroom.3


[10]   Lowe’s testimony and the recording also indicate that Cook specifically wanted

       to locate both the firearm and the ammunition for it. If Cook had merely

       wanted to disarm Lowe, he did so by retrieving the gun from her; there was no

       need to also retrieve the bullets, and certainly no need to cock the gun and point

       it at her. We need not credit Cook’s self-serving statements that he merely took

       the gun from Lowe for self-defense reasons. Furthermore, Cook’s claim that he

       only was looking for the $140 he had given Lowe earlier when he was rifling

       through her purse is contradicted by the recording and Lowe’s testimony.

       Specifically, Cook expressed disinterest in finding the money when Lowe told

       him it was in her wallet and instead continued looking through her purse until




       3
         As noted, Cook argues in part that the State could not rely upon Cook’s forcing Lowe into the bathroom as
       part of the confinement because it did not specifically allege in the charging information that Cook removed
       Lowe from one place to another. It is true that prior cases have held that the State must specify in a charging
       information whether it is alleging that a defendant non-consensually confined a victim, or whether the
       defendant forcibly removed a victim from one place to another. See Kelly v. State, 535 N.E.2d 140, 142-43
       (Ind. 1989). The current version of the confinement statute, under which Cook was charged and convicted,
       does not differentiate between non-consensual confinement and confinement by removal, as it had in the
       past. Instead, confinement by removal is now located solely in the kidnapping statute, Indiana Code Section
       35-42-3-2. In any event, Cook confined Lowe both by sitting on top of her for approximately ten minutes
       and by confining her in the bathroom for another three to five minutes, completely apart from removing her
       from one room to another.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1157 | April 13, 2016               Page 6 of 8
       he found the gun and then the magazine clip, indicating those items were the

       objects of his search all along. Additionally, it is clear that Cook intimidated

       Lowe by obtaining her gun and pointing it at her, resulting in an actual

       heightened risk of harm to her. There is sufficient evidence that at least part of

       Cook’s continuing confinement of Lowe was accomplished while he was armed

       with a deadly weapon. Cf. Jackson v. State, 657 N.E.2d 131, 134 (Ind. Ct. App.

       1995) (holding there was sufficient evidence defendant committed robbery

       while armed with deadly weapon, even though victim managed to obtain knife

       from defendant before defendant actually took victim’s purse and fled), overruled

       on other grounds by Winegeart v. State, 665 N.E.2d 893 (Ind. 1996).


[11]   Cook also suggests that if the State believed he took Lowe’s gun from her, he

       should have been charged with robbery, and that he could not have been

       “armed” with the gun without first committing robbery by taking the gun from

       Lowe. Cook seems to take this as some indication that he did not, in fact, ever

       have possession of the gun. However, it is possible that the acts of a defendant

       may fall under two overlapping statutes, and prosecutors have discretion in

       deciding whether to prosecute and precisely which charges to file against a

       defendant. Kibbey v. State, 733 N.E.2d 991, 996 (Ind. Ct. App. 2000). That the

       prosecutor here decided not to pursue robbery charges against Cook has no

       bearing on whether there was sufficient evidence to convict him of confinement

       while armed with a deadly weapon.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1157 | April 13, 2016   Page 7 of 8
                                                 Conclusion
[12]   There is sufficient evidence that Cook committed the crime of Level 3 felony

       criminal confinement while armed with a deadly weapon. We affirm.


[13]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1157 | April 13, 2016   Page 8 of 8
