Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                          Nov 19 2014, 10:10 am
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:

PATRICIA CARESS MCMATH                                  GREGORY F. ZOELLER
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        LYUBOV GORE
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

TORRENCE BROWN,                                    )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )   No. 49A04-1404-CR-172
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Sheila A. Carlisle, Judge
                             Cause No. 49G03-1304-FA-26283


                                        November 19, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                            Case Summary

           Torrence Brown (“Brown”) was convicted after a jury trial of Rape, a Class A felony;1

Criminal Deviate Conduct, as a Class B felony;2 and Criminal Confinement, as a Class D

felony.3 Brown now appeals.

           We affirm.

                                                  Issues

           Brown raises two issues for our review, which we restate as:

             I.    Whether there was sufficient evidence to support the conviction for
                   Criminal Confinement; and

            II.    Whether his sentence was inappropriate.

                               Facts and Procedural History

           On December 30, 2012, M.R. was with friends who had gathered at a bar in Broad

Ripple to watch a college basketball game. M.R. had left her car nearby at a friend’s home,

and planned to spend the night there after the game. One group of friends left the bar; M.R.

decided to stay behind with another group, but was unable upon reentering the bar to find her

friends. Eventually, M.R. decided to walk the two blocks from the bar to the house at which

she planned to spend the night.




1
 Ind. Code § 35-42-4-1(a) & (b)(1) (West 2013). In light of revisions to the criminal statutes that went into
effect after Brown’s trial and conviction, all statutory citations refer to the versions of the substantive
provisions in effect at the time of trial.

2
    I.C. § 35-42-4-2(a).

3
    I.C. § 35-42-3-3.

                                                     2
          Sometime during this walk, M.R. encountered Brown and his cousin, Dewayne Lane

(“Lane”). Brown and Lane transported M.R. in a car to a house in Indianapolis where Brown

and Lane forced M.R. to engage in vaginal, anal, and oral sex. Brown kicked and beat M.R.

at this time.

          After this, Brown and Lane again put M.R. in a car; M.R. asked to go home and

promised not to tell anyone what had happened. Brown and Lane instead took M.R. to the

1900 block of North Moreland Avenue in the Haughville neighborhood of Indianapolis.

There, Brown again battered M.R., repeatedly kicking her head and body.

          After the two men left, M.R. was unable to find her purse or cell phone. Bleeding and

in severe pain, M.R. approached a nearby house. The house’s occupants did not let M.R.

inside, but called 911. M.R. was transported by ambulance to a hospital, where she was

diagnosed with significant injuries to her head, including hemorrhages and multiple skull

fractures.

          Police traced M.R.’s cell phone to Lane’s home. Lane spoke with police and

identified Brown as a second suspect. Hospital staff had used a rape kit to examine M.R.;

sperm cells were recovered, and DNA testing of those cells identified the sperm cells having

come from both Brown and Lane.

          On April 22, 2013, Brown was charged with Rape, as a Class A felony (“Count I”);

two counts of Criminal Deviate Conduct, as Class A felonies (“Count II” and “Count III”);4




4
    I.C. §§ 35-42-4-2(a) & (b)(3).

                                                3
Rape, as a Class B felony (“Count IV”);5 two counts of Criminal Deviate Conduct, as Class

B felonies (“Count V” and “Count VI”);6 Criminal Confinement, as a Class B felony (“Count

VII”);7 and Battery, as a Class C felony (“Count VIII”).8

           A jury trial was conducted from March 3 to March 5, 2014. At the end of the trial, the

jury found Brown guilty as to Counts I (A-felony Rape), II (A-felony Criminal Deviate

Conduct), IV (B-felony Rape), V (B-felony Criminal Deviate Conduct), VII (B-felony

Criminal Confinement), and VIII (C-felony Battery).

           A sentencing hearing was conducted on March 20, 2014. Under double jeopardy

principles, the trial court reduced the guilty finding on Criminal Deviate Conduct from a

Class A felony to a Class B felony, reduced the guilty finding for Criminal Confinement from

a Class B felony to a Class D felony, vacated the guilty verdict for Battery, merged several

counts, and entered judgments of conviction against Brown under Count I for Rape, as a

Class A felony; under Count II for Criminal Deviate Conduct, as a Class B felony; and under

Count VII for Criminal Confinement, as a Class D felony. At the hearing’s conclusion, the

trial court sentenced Brown to thirty years imprisonment for Rape, ten years imprisonment

for Criminal Deviate Conduct, and eighteen month imprisonment for Criminal Confinement.

The court ran the sentences for Rape and Criminal Confinement concurrent with one another,

and the sentences for Rape and Criminal Deviate Conduct consecutive to one another,

5
    I.C. § 35-42-4-1(a).

6
    I.C. § 35-42-4-2(a).

7
    I.C. §§ 35-42-4-3-3(a) & (b)(2).

8
    I.C. § 35-42-2-1(a)(3).

                                                 4
yielding an aggregate term of imprisonment of forty years. The court also ordered Brown to

pay restitution totaling $2,350.00.

       This appeal ensued.

                                  Discussion and Decision

                                 Sufficiency of the Evidence

       Brown’s first contention on appeal is that there was insufficient evidence to support

his conviction for Criminal Confinement. Our standard of review in such cases is well

settled. We consider only the probative evidence and reasonable inferences supporting the

verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of

witnesses or reweigh evidence. Id. We will affirm the conviction unless “no reasonable fact-

finder could find the elements of the crime proven beyond a reasonable doubt.” Id. (quoting

Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an

inference may reasonably be drawn from it to support the verdict.” Id. (quoting Pickens v.

State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).

       Brown was convicted of Criminal Confinement, as a Class D felony. To convict

Brown, as charged, the State was required to prove beyond a reasonable doubt that Brown

knowingly, by force or threat of force, removed M.R. from Broad Ripple to the 1900 block of

North Moreland Avenue, which use of force resulted in serious bodily injury to M.R. See

I.C. §§ 35-42-3-3(a) & (b)(2).

       Brown contends in this appeal that the State failed to introduce sufficient evidence as

to Brown’s use of force to effect M.R.’s removal. Brown argues that the absence of evidence


                                              5
in the form of testimony from M.R. establishing how Brown and Lane first made contact

with M.R. in Broad Ripple, and the similar absence of evidence from M.R. regarding her

getting into the car both in Broad Ripple and at the house in which the men raped her,

amounts to a failure of proof that Brown used force to compel M.R. to get into the car with

him.

       Brown directs us to Cunningham v. State for the proposition that “[a]n inference of

confinement does not arise from evidence of injury to the victim.” 870 N.E.2d 552, 554 (Ind.

Ct. App. 2007). The facts in Cunningham are readily distinguished from those here. In

Cunningham, the defendant severely beat his wife in their shared home after he returned

home. Id. at 552-53. There was no evidence establishing that Cunningham’s wife attempted

to leave the residence, Cunningham restrained his wife in any way, or Cunningham’s wife

ever “felt confined.”   Id. at 554. The trial court’s sole basis for an inference that

Cunningham’s wife had been confined was the presence of the injuries Cunningham had

inflicted; this Court concluded that this alone was insufficient to sustain the judgment of

Criminal Confinement against Cunningham. Id.

       Here, unlike in Cunningham, there was evidence beyond M.R.’s injuries sufficient to

support Brown’s conviction for Criminal Confinement. Lane testified that after both he and

Brown had engaged in sexual conduct with M.R., Lane came out of the bathroom to find

Brown forcing M.R. to engage in oral sex. Lane further testified that Brown then began to

hit and kick M.R. After this episode, the men put M.R. into a car and, rather than transport




                                             6
her home as she requested, took her to a third location, where Brown again beat M.R. before

finally abandoning her in the snow.

       Brown observes that while he and Lane testified concerning M.R. getting into the car,

there is no corresponding testimony from M.R. But as the State notes, this evidence is

lacking because M.R. incurred head injuries as a result of Brown’s battering of her on two

occasions, and these injuries likely resulted in memory loss related to the events of the night

of December 30, 2012. The evidence, taken in a light most favorable to the judgment, is that

after raping and beating M.R., Brown and Lane took M.R. to the 1900 block of North

Moreland Avenue without her consent and further beat her before leaving her alone, lying in

the snow without her purse or phone.

       This is sufficient evidence from which a jury could reasonably infer that Brown used

force upon M.R. to compel her to get into the car with him and Lane after the two men raped

her. We accordingly decline Brown’s invitation to reweigh evidence and vacate his

conviction as to Criminal Confinement.

                                          Sentencing

       Brown also challenges the appropriateness of his sentence. The authority granted to

this Court by Article 7, § 6 of the Indiana Constitution permitting appellate review and

revision of criminal sentences is implemented through Appellate Rule 7(B), which provides:

“The Court may revise a sentence authorized by statute if, after due consideration of the trial

court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the

offense and the character of the offender.” Under this rule, and as interpreted by case law,


                                                7
appellate courts may revise sentences after due consideration of the trial court’s decision, if

the sentence is found to be inappropriate in light of the nature of the offense and the character

of the offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008); Serino v. State,

798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of such review is to attempt to

leaven the outliers. Cardwell, 895 N.E.2d at 1225.

       Here, Brown was convicted of Rape, a Class A felony, which carried a sentencing

range of twenty to fifty years, with an advisory term of thirty years, I.C. § 35-50-2-4;

Criminal Deviate Conduct, a Class B felony, which carried a sentencing range of six to

twenty years, with an advisory term of ten years, I.C. § 35-50-2-5; and Criminal

Confinement, as a Class D felony, which carried a sentencing range of six months to three

years, with an advisory term of eighteen months. I.C. § 35-50-2-7. The trial court sentenced

Brown to the advisory term for each of the three offenses, ran the sentence for Criminal

Confinement concurrent with the sentence for Rape, and ran the sentences for Rape and

Criminal Deviate Conduct consecutive to one another. This yielded an aggregate term of

imprisonment of forty years. Brown contends that his sentence is inappropriate because

Lane, his co-defendant, was sentenced to a shorter term of incarceration of twenty years.

       Brown’s offenses here are especially egregious. Brown engaged in multiple forcible

sex acts with M.R., after which he beat her. And while Brown is correct that Lane also

engaged in this conduct, Brown—not Lane—initiated both the sex acts and the other acts of

physical violence against M.R. These acts escalated in severity to such a degree that M.R.

suffered multiple facial fractures, multiple hemorrhages, numerous injuries to her body, and


                                               8
memory loss, as well as the pain and injuries inflicted as a result of multiple forced sex acts.

In the wake of Brown’s offenses, M.R., a college student with plans to attend law school,

suffered ongoing psychological trauma and required ongoing psychological treatment.

        Brown’s character also does not speak well of him. Brown has multiple misdemeanor

convictions, including multiple convictions for possession of marijuana and driving while his

operating privileges were suspended, as well as a conviction for operating a vehicle while

intoxicated. During the pendency of this case before the trial court, charges were pending

against Brown in two separate matters: one charge alleged that he engaged in conspiracy to

deal in cocaine, as a Class A felony, and the other alleged still another commission of driving

with a suspended license. He was twice sentenced to probation; in both cases, he violated

terms of probation and had his probation revoked. As a juvenile, Brown was adjudicated as a

delinquent for an act that, if committed by an adult, would have constituted battery. As noted

above, Brown has a history of substance abuse. He did not obtain a high school diploma or

GED.

        While Brown is correct that Lane received a lenient sentence by way of comparison,

Lane pled guilty in the case and did not initiate the severe beating of M.R.; this was Brown’s

doing. We accordingly cannot conclude that Brown’s sentence was inappropriate.9




9
  We note that the particularly egregious nature of the offense here would not render inappropriate a
considerably more aggravated sentence than that requested by the State and imposed by the trial court. Were
we writing on a blank slate, we might have assessed a stiffer penalty. In recognition of the trial court’s role in
sentencing, we defer here to the trial court’s judgment, which the State does not challenge on cross-appeal.
See Akard v. State, 937 N.E.2d 811, 813-14 (Ind. 2010).

                                                        9
                                     Conclusion

      There was sufficient evidence to support Brown’s conviction for Criminal

Confinement. Brown’s sentence is not inappropriate.

      Affirmed.

NAJAM, J., and PYLE, J., concur.




                                         10
