                                                            FILED
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                       Aug 14 2012, 8:53 am

establishing the defense of res judicata,
collateral estoppel, or the law of the                           CLERK
                                                               of the supreme court,
                                                               court of appeals and
case.                                                                 tax court




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


                              IN THE
                    COURT OF APPEALS OF INDIANA

STACEY JOHNSON,                                 )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 49A02-1201-CR-46
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Sheila A. Carlisle, Judge
                           Cause No. 49G03-1106-FA-46242



                                      August 14, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
      Stacey Johnson appeals his convictions for robbery as a class A felony1 and

criminal confinement as a class D felony.2 Johnson raises one issue which we revise and

restate as whether Johnson’s convictions violate the prohibition against double jeopardy.

We affirm.

      The relevant facts follow. In November 2010, Charles Krutz was retired and had

known Johnson for three or four months as Johnson and a person Krutz knew as Neff

used to “hang out” around Krutz’s building. Transcript at 61. On November 28, 2010,

Johnson and Neff stopped by Krutz’s residence between 10:00 and 12:00 p.m., and Neff

asked Krutz to borrow his car for an hour or two. Neff and Johnson did not return the car

that day, Krutz tried to call to check on his car, and nobody answered the phone until

Johnson finally answered the phone and said: “We’ll be back in about an hour.” Id. at 63.

      Krutz was watching television and waiting and “kind of falling asleep,” when, at

4:00 a.m., Krutz heard a knock on his door, looked out the peephole, saw Johnson,

opened the door, and saw that Johnson was accompanied by someone wearing a

Halloween mask. Id. Johnson grabbed Krutz and threw him on the floor. Johnson then

wrapped duct tape around Krutz’s hands and legs. Krutz also eventually had “something

over [his] face and something in [his] mouth,” and Johnson “wrapped tape around that.”

Id. at 65. Johnson dragged Krutz from the front room, through the dining room, and into

the kitchen. At that point, Johnson tied Krutz up with an extension cord. Johnson then

poured a liquid on Krutz. Krutz did not know what the liquid was and thought: “Oh, shit.

      1
          Ind. Code § 35-42-5-1 (2004).
      2
          Ind. Code § 35-42-3-3 (Supp. 2006).

                                                2
Now they’re going to set me on fire.” Id. at 67. Krutz “was laying there waiting to, you

know – for what was going to happen next, whether [he] was going to burst into flames

or whatever.” Id. Krutz did not hear any movement and was eventually able to free

himself after “45 minutes, an hour, something like that.” Id. at 68. Krutz was “really

short of breath” and realized that the liquid Johnson poured on him was bleach because

the color was gone from his pajamas. Id. Krutz’s television and cell phone were missing

from his residence. Krutz changed clothes and called the police from his neighbor’s

residence.

       Indianapolis Metropolitan Police Officer Tracy Ryan responded to the call and

found Krutz outside of the residence when she arrived. Krutz was “very scared” and

shaking. Id. at 41. Krutz was having difficulty talking and was wheezing and coughing.

Officer Ryan smelled the very strong odor of bleach and had to exit Krutz’s residence

due to the overpowering odor of the bleach. An ambulance transported Krutz to the

hospital. Krutz “hurt all over” and suffered chemical pneumonia and rug burns and

remained in the hospital for two and one-half days. Id. at 74. Krutz also had more

difficulty breathing after the encounter.

       On June 28, 2011, the State charged Johnson with Count I, burglary as a class A

felony; Count II, robbery as a class A felony; Count III, criminal confinement as a class B

felony; Count IV, battery as a class C felony; Count V, auto theft as a class D felony; and

Count VI, interference with reporting a crime as a class A misdemeanor. On December

9, 2011, the State dismissed Count I and Count VI.



                                            3
       A jury found Johnson guilty of Count II, robbery as a class A felony; Count III,

criminal confinement as a class B felony; and Count IV, battery as a class C felony. The

jury found Johnson not guilty of Count V, auto theft as a class D felony. The court

vacated the conviction under Count IV, battery as a class C felony due to double jeopardy

concerns with Count II, robbery as a class A felony.         The court also reduced the

conviction under Count III, criminal confinement, to a class D felony.          The court

sentenced Johnson to forty years for robbery as a class A felony with thirty-eight years to

be served at the Department of Correction followed by two years of work release and two

years for criminal confinement as a class D felony. The court ordered that the sentences

be served concurrent with each other.

       The issue is whether Johnson’s convictions violate the prohibition against double

jeopardy. The Indiana Constitution provides that “[n]o person shall be put in jeopardy

twice for the same offense.” IND. CONST. art. 1, § 14. The Indiana Supreme Court has

held that “two or more offenses are the ‘same offense’ in violation of Article I, Section

14 of the Indiana Constitution, 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.”

Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).

       Johnson argues that his convictions violate Indiana’s prohibition against double

jeopardy based upon the actual evidence test. Johnson argues that based on the charging

information, the arguments of counsel, and the evidence presented at trial, there is more

than a reasonable possibility that the jury relied on the same actual evidence to convict

                                            4
him of both criminal confinement and robbery. Specifically, Johnson argues that the

evidence that he tied Krutz and forced him to lie on the floor to prove criminal

confinement “is the very same as the evidence of force that the State emphasized in

arguing the Robbery charge.” Appellant’s Brief at 9.

       The State argues that Johnson confined Krutz beyond the confinement necessary

to effectuate the robbery. The State also argues that Johnson committed the robbery by

placing Krutz in fear and that “[e]ven without the force used against Krutz, Johnson

placed Krutz in fear in order to rob Krutz.” Appellee’s Brief at 10. Thus, the State

argues that “[b]ecause the State also proved that Johnson committed robbery by placing

Krutz in fear, no double jeopardy violation occurred based on the use of force.” Id.

       In his reply brief, Johnson argues that he did not take additional steps to confine

Krutz once he was tied up and his property taken. Johnson also argues that “although

Krutz was tied up and left on the floor for several hours, there is no evidence that Johnson

or his accomplice used additional force to confine him once the robbery was complete.”

Appellant’s Reply Brief at 2.

       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.

Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008). 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 the

essential elements of a second challenged offense. Id. The Indiana Supreme Court has

                                             5
determined the possibility to be remote and speculative and therefore not reasonable

when finding no sufficiently substantial likelihood that the jury used the same evidentiary

facts to establish the essential elements of two offenses. Hopkins v. State, 759 N.E.2d

633, 640 (Ind. 2001) (citing Long v. State, 743 N.E.2d 253, 261 (Ind. 2001), reh’g

denied; Redman v. State, 743 N.E.2d 263, 268 (Ind. 2001)); Griffin v. State, 717 N.E.2d

73, 89 (Ind. 1999), cert. denied, 530 U.S. 1247, 120 S. Ct. 2697 (2000).

       Application of the actual evidence test requires the court to identify the essential

elements of each of the challenged crimes and to evaluate the evidence from the fact-

finder’s perspective. Lee, 892 N.E.2d at 1234. In determining the facts used by the fact-

finder to establish the elements of each offense, it is appropriate to consider the charging

information, jury instructions, and arguments of counsel. Lee, 892 N.E.2d at 1234;

Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002).

       “[U]nder the . . . actual evidence test, the Indiana Double Jeopardy Clause is not

violated when the evidentiary facts establishing the essential elements of one offense also

establish only one or even several, but not all, of the essential elements of a second

offense.” Spivey, 761 N.E.2d at 832-833. Generally, double jeopardy does not prohibit

convictions of confinement and robbery when the facts indicate that the confinement was

more extensive than that necessary to commit the robbery. Merriweather v. State, 778

N.E.2d 449, 454 (Ind. Ct. App. 2002) (citing Hopkins, 759 N.E.2d at 639; Thy Ho v.

State, 725 N.E.2d 988, 993 (Ind. Ct. App. 2000)).

       Robbery consists of taking property “by using or threatening the use of force on

any person” or “by putting any person in fear.” Ind. Code § 35-42-5-1 (2004). Criminal

                                             6
confinement consists of confining a person or removing a person, by fraud, enticement,

force, or threat of force, from one place to another. Ind. Code § 35-42-3-3 (Supp. 2006).

        Initially, we observe that the information and instruction related to robbery did not

limit an element of robbery to the act constituting criminal confinement. The charging

information and instruction relating to criminal confinement alleged that Johnson tied

Krutz’s hands and feet and forced him to lie on the floor.3 The charging information and

jury instruction for robbery mentioned that Johnson placed Krutz in fear or used or

threatened the use of force.4 Further, the record reveals that Krutz testified that he



        3
            The State’s charging information for criminal confinement stated:

        STACEY M. JOHNSON, on or about NOVEMBER 28, 2010, did knowingly confine
        Charles Krutz, without the consent of Charles Krutz, by tying his hands and feet and
        forcing him to lie on the floor, which resulted in serious bodily injury, that is: rug burns,
        pneumonia and extreme pain, to Charles Krutz[.]

Appellant’s Appendix at 55. Preliminary Instruction Number 7 addressed the criminal confinement
charge and stated in part:

        Before you may convict the Defendant, the State must have proved each of the following
        beyond a reasonable doubt:

        1.        The Defendant, Stacey M. Johnson
        2.        Knowingly
        3.        Confined Charles Krutz without his consent, by tying his hands and feet and
                  forcing him to lie on the floor.
        4.        And the confinement resulted in serious bodily injury that is: rug burns,
                  pneumonia and extreme pain, to Charles Krutz.

Id. at 119.

        4
            The State’s charging information for robbery stated:

        STACEY M. JOHNSON, on or about NOVEMBER 28, 2010, did knowingly take from
        the person or presence of Charles Krutz property, that is: a television set, cell phone, and
        house and car keys, by putting Charles Krutz in fear or by using or threatening the use of
        force on Charles Krutz, which resulted in serious bodily injury, that is: severe rug burns,
        pneumonia and extreme pain, to Charles Krutz[.]

                                                      7
thought Johnson was going to set him on fire and that Officer Ryan described Krutz as

“very scared” and shaking. Transcript at 41. See Redman, 743 N.E.2d at 268 (holding

that there was no sufficiently substantial likelihood that the jury relied on the evidence of

the abduction by removal to establish the overt act element of the conspiracy charge

where the trial court’s instructions clearly authorized any one of several bases for finding

the overt act element); Lee, 892 N.E.2d at 1235-1236 (discussing Redman and observing

that the Court had not found a double jeopardy violation when the fact supporting a first

charge could theoretically have served as the overt act of a conspiracy charge, but the

jury was instructed on additional facts supporting an overt act).

        Next, we cannot say that the criminal confinement was coextensive with the

robbery. The Indiana Supreme Court has stated that “where the confinement of a victim

is greater than that which is inherently necessary to rob them, the confinement, while part

of the robbery, is also a separate criminal transgression.” Hopkins, 759 N.E.2d at 639.

The evidence shows that independent crimes were committed. The record reveals that



Appellant’s Appendix at 55. Preliminary Instruction Number 6 addressed the crime of robbery and stated
in part:

        Before you may convict the Defendant, the State must have proved each of the following
        beyond a reasonable doubt:

        1.     The Defendant, Stacey M. Johnson
        2.     Knowingly
        3.     Took property, that is: a television set, cell phone, and house and car keys from
               the person or presence of Charles Krutz
        4.     By putting Charles Krutz in fear or by using or threatening the use of force on
               Charles Krutz
        5.     And the commission of elements 1 through 4 resulted in serious bodily injury to
               Charles Krutz, that is: severe rug burns, pneumonia and extreme pain to Charles
               Krutz.

Id. at 118.
                                                  8
Johnson grabbed Krutz, threw him on the floor, wrapped duct tape around Krutz’s hands

and legs, placed something over Krutz’s face and something in his mouth, dragged Krutz

through the dining room and into the kitchen, tied up Krutz with an extension cord and

poured bleach on him. Krutz was not able to free himself until forty-five minutes to an

hour later.

       Based upon the record, we find no sufficient substantial likelihood, and thus

cannot say that Johnson has demonstrated a reasonable possibility, that the trier of fact

based its determination of guilt on the robbery count upon the evidence used to find

Johnson guilty of criminal confinement. The confinement of Krutz went beyond that

necessary to accomplish the robbery. Accordingly, the criminal confinement conviction

does not violate Johnson’s right against double jeopardy. See Merriweather, 778 N.E.2d

at 455-456 (holding that there was no reasonable possibility that the court used the same

evidentiary facts to convict the defendant of robbery and criminal confinement where the

defendant grabbed a victim’s arm and ordered her to empty the cash register drawers,

continued to hold her at gunpoint, ordered her to go to the manager’s office, and confined

her at gunpoint for nearly fifteen minutes before fleeing).

       For the foregoing reasons, we affirm Johnson’s convictions for robbery as a class

A felony and criminal confinement as a class D felony.

       Affirmed.

FRIEDLANDER, J., and DARDEN, Sr. J., concur.




                                             9
