Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be                                          Nov 04 2013, 6:41 am

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:

ELIZABETH A. BELLIN                              GREGORY F. ZOELLER
Elkhart, Indiana                                 Attorney General of Indiana

                                                 MICHAEL GENE WORDEN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

ROBERT M. KING,                                  )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 20A03-1303-CR-105
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE ELKHART SUPERIOR COURT
                       The Honorable George W. Biddlecome, Judge
                             Cause No. 20D03-1006-FB-19



                                      November 4, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                                STATEMENT OF THE CASE

       Robert M. King appeals his convictions for three counts of criminal confinement,

as Class B felonies, following a jury trial.1 King presents the following issues for review:

       1.      Whether the trial court violated double jeopardy principles under the
               Indiana Constitution when it entered judgment of conviction on two
               counts of criminal confinement, as Class B felonies, in which King’s
               wife was the victim.

       2.      Whether the evidence is sufficient to support his conviction for
               criminal confinement with regard to his child W.K.

       We affirm.

                         FACTS AND PROCEDURAL HISTORY

       On the evening of June 3, 2010, a very intoxicated King and his wife, C.K., were

in their apartment in Elkhart. Also in the home were their two children, M.K., a daughter,

and W.K., a son. King and C.K. began arguing about money missing from their budget.

King demanded to know where sixty dollars had gone, and C.K. denied any knowledge

of the missing money. C.K. went to bed at 12:30 a.m., but after she fell asleep King

woke her and attempted to resume the argument. C.K. told him to leave her alone, but

he placed a leg or knee on her, put a knife to her throat, and threatened to slit her throat if

she did not tell him where the missing money was. C.K. was frightened and did not

believe she could leave the room at that point.

       W.K. woke when he heard his mother scream. He went into his parents’ bedroom,

where he saw his father holding a knife to C.K.’s neck. W.K. asked what was going on,

which startled King. King rose off C.K. and went to a dresser on the other side of the


       1
          King was also convicted of attempted aggravated battery, as a Class B felony, but he does not
appeal that conviction.
                                                  2
bed. W.K. knew that his father kept a gun in that dresser, so W.K. began to back out of

the room. C.K. told W.K. to go back to his room and lock his door, which he did.

Wielding the gun, King walked to W.K.’s bedroom door and told him to come out of his

room so he “could put a bullet in [W.K.’s] head,” but W.K. did not open the door.

Transcript at 68. W.K. later left his room through the window and went to a friend’s

home, staying there until later the following day.

       Still holding the gun, King told C.K. to go to the kitchen and made her sit on the

floor. C.K. sat on the floor in front of the refrigerator. She did not believe she could

leave because King was holding a handgun, waving the butt end at her, and he told her

she was not going anywhere. King continued to demand to know where the money from

their budget was. At some point, M.K. woke and told King to leave C.K. alone. King

told M.K. to go back to her room, and she did. When M.K. realized King was angry

about missing money, she retrieved money from her room and tried to give it to him, but

he refused to take it. King also told M.K. to have W.K. come out of his room, but there

was no answer when M.K. knocked on W.K.’s door.

       While King and M.K. were in the hallway briefly, C.K. fled the kitchen and

attempted to leave, but King “slammed the door and told [her] she couldn’t leave” and

then “took her by the hair and threw her back to the kitchen floor.” Id. at 149, 151. C.K.

began to cry. King then took some lighter fluid and said that if C.K. did not tell him

where the money was, he would pour the fluid on her and set her on fire. When C.K.

continued to deny knowing anything about the missing money, King “sloshed” the fluid

around, and some of it landed on C.K.’s arm. Id. at 40. King then took a lighter, lit it,


                                             3
and threw it toward C.K., but the flame extinguished when he released the lighter. M.K.

telephoned police, and when officers arrived they arrested King.

      The State charged King with four counts of criminal confinement, as Class B

felonies, and one count of attempted aggravated battery, as a Class B felony. A jury trial

was held January 7 and 8, 2013. At the close of evidence, King moved for directed

verdicts on the counts alleging criminal confinement of M.K. and W.K. and on the

attempted aggravated battery count. Following argument by counsel, the trial court

denied the motion. The jury returned guilty verdicts on all counts except the one alleging

criminal confinement of M.K., for which it acquitted him. The trial court sentenced King

to twelve years for each criminal confinement count and two years for attempted

aggravated battery, to be served concurrently. King now appeals.

                             DISCUSSION AND DECISION

                        Issue One: Continuing Crime Doctrine

      King contends that his convictions violate the common law double jeopardy

principle known as the continuing crime doctrine. We have explained the continuing

crime doctrine as follows:

      “The continuing crime doctrine essentially provides that actions that are
      sufficient in themselves to constitute separate criminal offenses may be so
      compressed in terms of time, place, singleness of purpose, and continuity of
      action as to constitute a single transaction.” Riehle v. State, 823 N.E.2d
      287, 296 (Ind. Ct. App. 2005), trans. denied. “[T]he continuing crime
      doctrine reflects a category of Indiana’s prohibition against double
      jeopardy.” Walker v. State, 932 N.E.2d 733, 736 (Ind. Ct. App. 2010). As
      we have explained:

             The statutory elements and actual evidence tests [of double
             jeopardy, as described in Richardson v. State, 717 N.E.2d 32
             (Ind. 1999),] are designed to assist courts in determining
                                            4
             whether two separate[ly] chargeable crimes amount to the
             “same offense” for double jeopardy purposes.              The
             continuous crime doctrine does not seek to reconcile the
             double jeopardy implications of two distinct[,] chargeable
             crimes; rather, it defines those instances where a defendant’s
             conduct amounts only to a single[,] chargeable crime. In
             doing so, the continuous crime doctrine prevents the state
             from charging a defendant twice for the same continuous
             offense.

      Boyd v. State, 766 N.E.2d 396, 400 (Ind. Ct. App. 2002) (emphasis
      original)[, trans. denied]. That is, “while Indiana’s double jeopardy clause
      prohibits convicting a defendant of two or more distinct[,] chargeable
      crimes when they constitute the ‘same offense’ . . . , it also prohibits”
      charging a defendant “multiple times for the same continuous offense.”
      Walker, 932 N.E.2d at 736-37.

Chavez v. State, 988 N.E.2d 1226, 1228 (Ind. Ct. App. 2013), trans. denied.

      Here, King contends that his convictions for two counts of Class B felony criminal

confinement of C.K. were “one continuous criminal act justifying only one confinement

conviction.” Appellant’s Brief at 7. Specifically, he argues that there was

      no distinction between the confinement that took place in the bedroom and
      the confinement of [C.K.] in the kitchen. Although [King] had two
      different weapons for each moment, it cannot be said that [C.K.] was ever
      free from detention and at liberty between when she was in the bedroom to
      when [King] moved her to the kitchen.

Id. at 9. We cannot agree.

      To prove criminal confinement, as a Class B felony, as charged in the counts

related to C.K., the State was required to show that King knowingly or intentionally

confined C.K. while King was armed with a deadly weapon. Ind. Code § 35-42-3-

3(a)(1), (b)(2)(A). “‘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.’” Penrod v. State, 810 N.E.2d 345, 346 (Ind. 2004) (quoting
                                            5
Boyd v. State, 766 N.E.2d at 400). King contends that there was “no distinction between

the confinement that took place in the bedroom and the confinement of [C.K.] in the

kitchen.” Appellant’s Brief at 9. But King ignores the brief time during which C.K. fled

the kitchen while he was in the hallway with M.K. C.K. was free during that time, as

shown by the fact that King had to prevent her from fleeing the apartment when he

slammed the front door, took her by the hair, and threw her back down in the kitchen.

      The first period of confinement began when King put the knife to C.K.’s throat in

their bedroom and continued until C.K. fled the kitchen while King was in the hallway.

The second confinement began when King grabbed the momentarily free C.K. by the hair

and threw her back down on the kitchen floor. King has not shown that the continuous

crime doctrine is applicable here. As such, we affirm his convictions for two counts of

criminal confinement, as Class B felonies, with regard to C.K.

                             Issue Two: Directed Verdict

      King also contends that the trial court erroneously denied his motion for judgment

on the evidence because the State had failed to prove he committed criminal confinement,

as a Class B felony, with regard to W.K. As this court has explained:

      It is thoroughly settled in Indiana that a trial court may grant a motion for a
      judgment on the evidence only “where there is a total absence of evidence
      upon some essential issue, or where there is no conflict in the evidence and
      it is susceptible of but one inference, and that inference is in favor of the
      accused.” State v. Patsel, 240 Ind. 240, 245, 163 N.E.2d 602, 604 (1960).
      See also State v. Casada, 825 N.E.2d 936, 937-938 (Ind. Ct. App. 2005).
      On appeal, we use the same standard of review as the trial court in
      determining the propriety of a judgment on the evidence. Id. at 937
      (citation omitted).

            “When the trial court considers entering judgment on the evidence, it
      must view the evidence in a light most favorable to the party against whom
                                            6
         judgment on the evidence would be entered.” Id. A trial court may not
         invade the province of the jury by weighing the evidence presented or the
         credibility of witnesses. Patsel, 163 N.E.2d at 604. In fact, our Supreme
         Court has held that a trial court is “not authorized under Trial Rule 50, in a
         criminal case, to consider whether the evidence presented could be viewed
         by a reasonable jury as constituting proof beyond a reasonable doubt.”
         State v. Goodrich, 504 N.E.2d 1023, 1024 (Ind. 1987).

State v. Taylor, 863 N.E.2d 917, 919 (Ind. Ct. App. 2007). Obviously, “if the evidence is

sufficient to support a conviction on appeal, then the trial court’s denial of a Motion for a

Directed Verdict cannot be in error.” Huber v. State, 805 N.E.2d 887, 890 (Ind. Ct. App.

2004).

         Here, the State alleged that King committed Class B felony criminal confinement

of W.K. because the State showed “confinement” of that child. As used in the criminal

confinement statute, “confine” means “to substantially interfere with the liberty of a

person.” Ind. Code § 35-42-3-1. King makes much of the fact that C.K., not King, told

W.K. to return to his room. The State counters that there was also evidence that King

told W.K. to go to his room. But we need not determine whether W.K.’s return to his

bedroom constitutes confinement under Section 35-42-3-3(a)(1).              After W.K. had

returned to his room and locked the door, an armed King told W.K. to come out so he

“could put a bullet in [W.K.’s] head,” but W.K. did not open the door. Transcript at 68.

Indeed, W.K. left the apartment through his bedroom window instead of through the

door. The evidence shows that King substantially interfered with W.K.’s liberty to leave

his room and move about the apartment.

         King’s focus on whether he told W.K. to go to his room is misplaced. To the

extent he argues that the evidence is insufficient in general to support his conviction with


                                               7
regard to W.K., King asks us to reweigh the evidence, which we cannot do. See Jones v.

State, 783 N.E.2d 1132, 1139 (Ind. 2003). We affirm King’s conviction for confinement

with regard to W.K.

      Affirmed.

MATHIAS, J., and BROWN, J., concur.




                                          8
