
Attorneys for Appellant                            Attorneys for Appellee
Susan K. Carpenter                                 Steve Carter
Public Defender of Indiana                         Attorney General  of
Indiana

Gregory L. Lewis                                   Zachary J. Stock
Deputy Public Defender                             Deputy Attorney General
Indianapolis, Indiana                              Indianapolis, Indiana
____________________________________________________________________________
__

                                   In the
                            Indiana Supreme Court
                      _________________________________

                            No. 35S02-0403-CR-142


MICHAEL P. PENROD,
                                             Appellant (Defendant  below),

                                     v.

STATE OF INDIANA,
                                             Appellee (Plaintiff  below).
                      _________________________________

      Appeal from the Huntington Circuit Court, No. 35C01-0207-FA-00040
                    The Honorable Mark A. McIntosh, Judge
                      _________________________________

 On Petition To Transfer from the Indiana Court of Appeals, No. 35A02-0304-
                                   CR-299
                      _________________________________

                                June 17, 2004

Shepard, Chief Justice.

      Appellant Michael Penrod was convicted of rape,  kidnapping,  and  two
counts of confinement all arising out of an  attack  on  E.H.   We  conclude
that the episode constituted one continuous confinement and vacate  the  two
confinements.

      Seventeen-year-old  E.H.  was  home  alone  one  evening  when  Penrod
appeared in her hallway with a  gun.   He  ordered  her  downstairs  to  the
garage, where they met Penrod’s accomplice.  The three left in  E.H.’s  car,
pausing briefly  so  that  the  accomplice  could  exit  and  drive  another
vehicle.  Penrod drove to Huntington Reservoir,  ordered  E.H.  out  of  the
car, made her take off her pants, and began rubbing her with his penis.

      Penrod then took E.H. to the backseat of her car and raped her  twice.
 He forced her into the trunk, drove a short distance, and finally left  her
in the vehicle, saying he would return shortly.  E.H. eventually forced  the
backseat down and crawled out into the passenger compartment.  Fearful  that
Penrod might be watching, she crawled back into the trunk.  Sometime  later,
she left for help.

      A jury found Penrod guilty on all counts.   The  trial  court  ordered
maximum  sentences  on  all  counts  and  directed  that  the  sentences  be
consecutive.  The Court of Appeals affirmed.  Penrod v.  State,  No.  35A02-
0304-CR-299 (Ind. Ct. App., December 29, 2003).  We granted transfer.

       Penrod  contends  that  multiple  convictions  of  confinement   were
improper and alleges an error in  instructing  the  jury.   On  this  latter
point, we summarily affirm the Court of  Appeals  denial  of  relief.   Ind.
Appellate Rule 58A(2).

      As for the kidnapping and confinement counts, the charging  instrument
alleges that the kidnapping  occurred  when  Penrod  confined  E.H.  in  the
course of hijacking her vehicle.  One  of  the  confinement  counts  alleges
that Penrod confined E.H. by transporting her to the  scene  of  the  rapes;
the other alleges that he confined her by placing  her  in  the  trunk.   On
appeal, the State has argued that the two confinements are separate  because
E.H. escaped from the trunk (ending confinement one) and then  retreated  to
the trunk out of fear (confinement two).  It argues that each  of  these  is
sufficiently distinct to support a separate conviction.

       Penrod  contends  that  these  events  constituted   one   continuous
confinement, and we conclude that he has the better of  the  arguments.   As
the Court of Appeals has said, “A confinement  ends  when  the  victim  both
feels free and is, in fact, free from detention, and a separate  confinement
begins if and when detention of the  victim  is  re-established.”   Boyd  v.
State, 766 N.E.2d 396, 400  (Ind.  Ct.  App.  2002).   Where  that  has  not
occurred,  multiple  convictions  are  inappropriate  even  when  there  are
variations in the way the counts are charged.   Curry v. State,  643  N.E.2d
963, 980-81 (Ind. Ct. App. 1994) (just  one  confinement  where  victim  was
“confined and  removed  from  one  place  to  another,  but  she  was  never
free…even during [perpetrator’s] absences from  the  vehicle,  she  did  not
feel free to attempt an escape because she did not know  if  she  was  being
watched”).  The confinements as charged here  occurred  during  the  greater
course of the kidnapping and thus were not appropriate as separate crimes.

      We vacate the two confinement convictions and affirm the  fifty  years
for rape followed by the fifty years for kidnapping.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.


