FOR PUBLICATION

MARK LEEMAN                                  GREGORY F. ZOELLER
Cass County Public Defender                  Attorney General of Indiana
Leeman Law Offices
Logansport, Indiana                          CYNTHIA L. PLOUGHE
                                             Deputy Attorney General
                                             Indianapolis, Indiana

                                                                    Jan 28 2014, 11:32 am
                              IN THE
                    COURT OF APPEALS OF INDIANA

TAMMY LOU KELLEY,                            )
                                             )
      Appellant-Defendant,                   )
                                             )
              vs.                            )       No. 09A04-1303-CR-98
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                     APPEAL FROM THE CASS CIRCUIT COURT
                        The Honorable Leo T. Burns, Jr., Judge
                            Cause No. 09C01-1103-FA-2




                                  January 28, 2014



                            OPINION - FOR PUBLICATION



ROBB, Judge
                                 Case Summary and Issues

       Tammy Lou Kelley appeals her convictions, following a bench trial, for criminal

confinement, a Class C felony; three counts of battery resulting in bodily injury, Class D

felonies; and resisting law enforcement, a Class A misdemeanor. Kelley presents several

issues on appeal, one of which we find dispositive: whether the trial court’s verdict finding

Kelley guilty but mentally ill was contrary to law. Concluding that the trial court’s verdict

was contrary to law we reverse and remand.

                                Facts and Procedural History

       On the morning of March 6, 2011, Derrick Shepard left his twelve-year-old daughter,

D.S., with Kelley in the apartment that the three of them shared. D.S. was eating breakfast in

the living room when Kelley came into the room looking for money and an ID and asked

D.S. what she was doing. Kelley then punched D.S. in the face several times, saying that she

had had enough of D.S.’s “shit.” Exhibit 1 at 6. D.S. pushed Kelley away and at the same

time pushed Kelley’s hands down. Kelley left the room, grabbed a six-inch steak knife from

the kitchen, came back into the living room, and said to D.S., “I can’t take this anymore, I’ve

had enough!” and began stabbing D.S. Id. at 2. D.S. was able to get to a phone and call 911

while Kelley continued to stab her, but then D.S. lost the connection to 911. While this was

going on, D.S. was moving around the apartment trying to get away from Kelley. At one

point, Kelley had D.S. on the floor and was stabbing her, with D.S. holding her arms up so

that Kelley could not get to her face. Eventually, D.S. pushed Kelley away so that she could

get to the door. Kelley then went into the kitchen again, and D.S. unlocked the door and left.


                                              2
D.S. ran out of the apartment and first went to the apartment complex main office, which

was closed. She then began running again and saw a woman coming out of an apartment.

She told the woman, Ashley Goodman, that she had been stabbed and asked her for help.

Goodman saw that D.S. was covered in blood and had a “busted” lip—which she specifically

noticed after D.S. told her that she had been punched before she was stabbed—and took D.S.

into her apartment to call 911. Exh. 2 at 7.

       Several officers from the Logansport Police Department arrived on the scene shortly

thereafter. Officers Carlos Reynoso and George Franklin arrived at the apartment complex,

and as Officer Reynoso walked up to Goodman’s apartment, he could see drops of blood on

the sidewalk. Later investigation showed a trail of blood leading from D.S.’s apartment to

the main office, with “a large amount of blood on the door to the office,” and then more

blood leading to Goodman’s apartment. Exh. 1 at 5. Officers arrived at Goodman’s

apartment to find D.S. frightened and covered in blood. An ambulance arrived after the

officers spoke to D.S., and en route to the hospital the medics requested that life line be

available to transport D.S. via helicopter to a different medical center, where the record

indicates that D.S. spent at least a couple of days in the Intensive Care Unit. Ultimately, D.S.

was found to have suffered nine knife wounds, including wounds on her head and arms, a

back wound that just missed her kidney, and a wound on her chest that partially collapsed one

of her lungs.

       While Officers Reynoso and Franklin were attending to D.S. at Goodman’s apartment,

Lieutenant Carl Swan and Officer Rick Bernhardt went to D.S.’s apartment to speak to


                                               3
Kelley. As they approached the apartment, they saw blood stains on the walk leading up to

the apartment as well as on the door to the common area. The door to D.S.’s apartment was

partially open, and Lt. Swan could see Kelley standing just inside the apartment wearing a

white shirt and red pajama pants, with “copious amount [sic] blood stain on Kelley’s clothing

and body.” Id. at 3. Lt. Swan kicked the door open the rest of the way and ordered Kelley to

the ground at gunpoint. Kelley initially complied with the order, and the officers came into

the living room and noticed blood stains on the carpeting and a blood-stained steak knife

with a bent blade lying on the floor about six feet away from Kelley. Lt. Swan handcuffed

Kelley while Officer Bernhardt performed a protective sweep of the apartment. Lt. Swan

started to Mirandize Kelley, at which point Kelley began to yell “Fuck Off,” “I wan’t [sic]

fucking water,” “Give me water,” and “I didn’t do anything I just need water.” Id. The

officers requested that Kelley calm down, which she did not do, and when they assisted

Kelley to her feet, Kelley became aggressive and kneed Officer Bernhardt in the groin and

kicked Lt. Swan in the groin as soon as she stood up. Both men complained of pain and

discomfort in the groin area as a result of her strikes. Kelley was taken to the common area

of the apartment building where she continued to scream and kick while being held down.

Additional officers assisted in securing Kelley for transport, and Kelley was taken to the jail.

At the jail, Kelley, still unruly, was taken to a padded cell where her clothing was collected

and she was checked for injuries (none were found).

       Shepard was interviewed briefly when he came to the police station after learning

about the incident between Kelley and his daughter. He explained that he and Kelley had


                                               4
never been married, although she had been in his life before but was not currently his

girlfriend. He stated that he knew something was wrong when he left the apartment that

morning, and that Kelley had been acting different since coming home from her mother’s

house that weekend, but that he did not think she was capable of hurting D.S.

       On March 9, 2011, the State charged Kelley with: count I, attempted murder as a

Class A felony; count II, criminal confinement as a Class C felony; count III, battery of a

person under fourteen resulting in bodily injury as a Class D felony; count IV, battery of a

law enforcement officer (Officer Bernhardt) resulting in bodily injury as a Class D felony;

count V, battery of a law enforcement officer (Lt. Swan) resulting in bodily injury as a Class

D felony; and count VI, resisting law enforcement as a Class A misdemeanor. In June 2011

Kelley filed a motion for psychiatric, competency, and mental status evaluation, which the

court granted in July 2011.

       Two psychiatrists filed reports with the court after evaluating Kelley. Dr. Rebecca

Mueller saw Kelley on July 13, 2011, and also reviewed the charging information and

probable cause affidavit, police reports, and Kelley’s mental health records from the jail as

well as from the Four County Counseling Center (“FCCC”). During the interview, Kelley

told Dr. Mueller that she and D.S. had gotten “into a scuffle.” Exh. A at 2. She told Dr.

Mueller that she had had an argument with Shepard that morning and at some point he had

called off their engagement.1 She wanted him to take D.S. to her brother’s place that day

rather than leaving her at the apartment, but he refused. Kelley did not remember the details


       1
           There appear to be conflicting stories as to the status of Kelley’s and Shepard’s relationship.

                                                      5
of the incident but did remember grabbing a knife and stabbing D.S., although she also said

that she “would not have stabbed D.S. in one million years.” Id. Dr. Mueller commented

that Kelley spoke very little about the stabbing but remarked that Shepard “knew what would

happen and should have taken D.S. out of the apartment instead of leaving for work.” Id.

Dr. Mueller noted that Kelley did not express remorse or concern over the trauma she had

caused, which Dr. Mueller found odd, and that Kelley seemed oblivious that her actions had

been life-threatening. Kelley talked with Dr. Mueller about hearing voices and being

paranoid, and Dr. Mueller believed that Kelley was hearing voices during the interview

despite Kelley’s denial of any auditory hallucinations. Dr. Mueller’s review of Kelley’s

FCCC records revealed mental health treatment dating back to 2004. In 2008 Kelley

required a psychiatric consult after having been brought into an ER when police found her

naked in the snow. She was diagnosed with bipolar disorder, severe with psychotic features.

In 2010 FCCC again saw Kelley for intake, and during intake Kelley discussed her legal

issues and two suicide attempts, and she was diagnosed with generalized anxiety disorder and

bipolar disorder. Her chart was closed when she did not return for care after the intake,

despite FCCC’s attempts to contact her. Her history of outpatient care indicated a theme of

not accepting recommended treatment. Dr. Mueller concluded that Kelley met the state

guidelines for the insanity defense, that Kelley had had “a paranoid episode characterized by

more than likely hallucinations commenting about her future stepdaughter, D.S. [that]

caused her to act in an aggressive, assaultive manner.” Id. at 5. Dr. Mueller then concluded




                                             6
that Kelley was unable to appreciate the wrongfulness of her conduct at the time of the

offense.

       Dr. John Yarling evaluated Kelley on August 22, 2011, and also reviewed her records

from FCCC (he was not given copies of the police reports). He conducted an interview with

no psychological testing. Dr. Yarling summarized some of the events from Kelley’s FCCC

records, including her diagnosis with bipolar disorder, severe with psychotic features, and her

history of missing appointments and discontinuing medications. During his interview with

her, Kelley “presented very limited information regarding the incident with which she” was

charged, and he noted that he had no other information about the incident beyond what she

told him. Exh. B at 4. She reported to him that at the time of the incident she felt a “strong

force” to harm D.S. and that a voice had told her to hurt D.S. Id. She had felt this force and

heard this voice before and in the past has complied with it—by wrecking her car in 2003, for

example. In 2009 though, she heard the voice and decided to wreck her car rather than

comply with the thought she was having of choking her son. Dr. Yarling noted that “[s]ome

of her comments suggested that she recognizes she should not become violent to herself or

others.” Id. She also told him that some of her moods are accompanied by thoughts that she

cannot control, including hallucinations and delusions. He noted that she told him she had

not been taking her anti-psychotic medication regularly for some time prior to the incident

and that she believed that may have caused the attack; he also noted that she had been

prescribed a long-lasting form of the drug that is usually injected intramuscularly every two

weeks, but there is no indication in the record of when her last dose may have been given


                                              7
prior to the incident. As far as a determination of her mental status at the time of the

incident, Dr. Yarling found it “difficult as so little information regarding the incident” was

known to him, and he hoped that additional information would be revealed during her trial.

Id. Nevertheless, he concluded that “Kelley’s description of her thoughts preceding the

incident taken together with her history of previous serious mental illness is consistent with a

recurrence of that illness at the time of the incident” and that it was therefore his “opinion

with reasonable medical certainty, based upon [his] evaluation of Ms. Kelley and the

information available to [him] that she was unable to appreciate the wrongfulness of her

conduct at the time of the offense as a result of her mental disease.”2 Id. He noted that at the

time of his evaluation, Kelley was taking an anti-psychotic medication and she was in control

of herself and was able to respond appropriately to his questions and provide details about

her life (although she provided very little about the incident underlying this case).

       Kelley waived her right to a jury trial, and on October 15, 2012, a bench trial was

held. No testimony was taken, and the parties stipulated to the police reports, the two

psychiatrist reports, and some of D.S.’s medical records from her stay in the ICU. The

parties gave closing argument, and the court took the matter under advisement. On January

11, 2013, the court issued its written order finding Kelley not guilty on count I and guilty but

mentally ill on the remaining counts. On February 8, 2013, the court sentenced Kelley to an

aggregate term of 4,800 days comprised of time served on count VI, aggravated sentences on

the remaining counts, and all counts except count V ordered to be served consecutively. The


       2
           Both Dr. Yarling and Dr. Mueller also concluded that Kelley was competent to stand trial.

                                                     8
court found no mitigating factors and four aggravating factors: the harm, injury, and loss

suffered by D.S. was significant and greater than the elements necessary to prove the

commission of the offense; Kelley had a significant history of criminal behavior;3 Kelley had

recently violated conditions of probation; and Kelley was in a position of care, custody, or

control over D.S. The court also ordered that, because Kelley was found guilty but mentally

ill, she be further evaluated and treated for her mental illness while in the Department of

Correction. This appeal followed.

                                     Discussion and Decision4

                                    I. Determination of Sanity

                                      A. Standard of Review

        Indiana Code section 35-41-3-6 provides that “[a] person is not responsible for having

engaged in prohibited conduct if, as a result of mental disease or defect, he was unable to

appreciate the wrongfulness of the conduct at the time of the offense” and defines “mental

disease or defect” as “a severely abnormal mental condition that grossly and demonstrably

impairs a person’s perception, but the term does not include an abnormality manifested only

by repeated unlawful or antisocial conduct.”

        Whether a defendant can appreciate the wrongfulness of his conduct is a question for

the trier of fact. Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004). A defendant who


        3
        A presentencing report revealed that Kelley had two prior felony convictions, two prior
misdemeanor convictions, and one pending felony in another county.

        4
          We heard oral argument on November 21, 2013, at the Michigan City High School in Michigan
City, Indiana. We thank the students, faculty, and staff of the school for the gracious reception, and
counsel for their presentations.

                                                   9
claims that his insanity defense should have prevailed at trial appeals from a negative

judgment, and we will only reverse when the evidence is without conflict and leads only to

the conclusion that the defendant was insane when the crime was committed. Id. We do not

reweigh the evidence and we consider only the evidence most favorable to the judgment and

the reasonable and logical inferences drawn therefrom. Id. The question is whether the

inferences supporting the judgment were reasonable, not whether there were other “more

reasonable” inferences that could have been made. Id. at 1150.

       The insanity defense is an affirmative defense for which the defendant has the burden

of proof. Id. at 1148. The State must prove all of the elements of the offense beyond a

reasonable doubt, but need not disprove insanity. Id. In order to succeed with an insanity

defense, the defendant must establish the defense by a preponderance of the evidence. Id. at

1149; see also Ind. Code § 35-41-4-1. A successful insanity defense results in the defendant

being found not responsible by reason of insanity. Galloway v. State, 938 N.E.2d 699, 708

(Ind. 2010); see Ind. Code § 35-41-3-6(a). Because mental illness alone is not enough to

establish the defense—the defendant must also show that the illness caused him to be unable

to appreciate the wrongfulness of his conduct—a defendant who is mentally ill but fails to

establish that he was unable to appreciate the wrongfulness of his conduct may be found

guilty but mentally ill. Galloway, 938 N.E.2d at 708.

               B. Trial Court’s Finding of Kelley as Guilty but Mentally Ill

       Kelley argues that it was contrary to law for the trial court to find her guilty but

mentally ill where the medical evaluations were unanimous that she was insane at the time of


                                            10
the incident and there was no contradictory lay testimony.        Kelley cites to our supreme

court’s case of Barany v. State, 658 N.E.2d 60, 63 (Ind. 1995), and contends that without

contradictory lay testimony, the court was not permitted to issue a judgment in contravention

of the determination made by the psychiatrists. The State replies, citing to Thompson, that as

the trier of fact the judge in this case was free to reject the expert testimony.

       A series of cases from our supreme court illuminate the boundaries of a trial court’s

ability to override the determination of psychiatrists. In Barany, the facts at trial were

stipulated, all three appointed psychiatrists agreed that Barany was incapable of appreciating

the wrongfulness of his conduct at the time of the incident, but the jury returned a verdict of

guilty but mentally ill. 658 N.E.2d at 63. Our supreme court upheld the verdict because the

State had offered testimony from lay witnesses that indicated that Barany was sane. Our

supreme court concluded that the jury could have decided that this testimony was more

indicative of Barany’s actual mental health at the time of the killing than were the medical

examinations conducted weeks later. Id. at 64.

       In Thompson, the defendant pleaded not guilty by reason of insanity and waived her

right to a jury trial. 804 N.E.2d at 1148. The parties submitted the matter to the trial judge

based on stipulated evidence, including the reports of court-appointed psychiatrists who

concluded that Thompson was not able to understand the wrongfulness of her conduct. The

trial court found Thompson guilty but mentally ill. Our supreme court held that, although

expert opinions provide a “strong justification for raising the insanity defense,” they are not

necessarily determinative. Id. at 1149. The trier of fact is free to disregard expert testimony


                                              11
and rely upon the testimony of lay witnesses. Id. The court noted that “testimony regarding

behavior before, during, and after a crime may be more indicative of actual mental health at

the time of the crime than mental exams conducted weeks or months later.” Id. (citing to

Barany, 658 N.E.2d at 64). However, the court also concluded that conflicting lay testimony

is not required for the trier of fact to reject expert testimony and as a general rule,

“factfinders are not required to believe a witness’s testimony even when it is uncontradicted.”

Id. In that case, the court determined that the trier of fact was entitled to prefer other

evidence in the record over the psychiatric examinations conducted weeks or months later.

Specifically, at the sentencing hearing, the trial judge had cited Thompson’s “history of

avoiding criminal responsibility through her illness, her conflicting stories about what

happened to her medication, her decision to use illegal drugs and drink alcohol while on her

medication, and lies she told one of the examining psychiatrists regarding that use of drugs

and alcohol” and had concluded that Thompson knew her actions were wrong but was using

her illness to manipulate the system. Id. at 1150. Additionally the State pointed to further

evidence in the record that would support the trial court’s findings, including that Thompson

took only her own possessions from the victim’s home after breaking in as indicating her

awareness of right and wrong, and the decision of police officers who stopped Thompson to

release her as indicating they believed her to be lucid enough to go about her business. Id. at

1149.

        Finally, in Galloway, our supreme court expanded on Thompson and further

illuminated the appellate standard of review following a finding regarding sanity at the trial


                                              12
court level, observing that the standard is deferential but not impossible. 938 N.E.2d at 709.

The court noted that each time it had previously upheld a conviction sustaining the trier of

fact’s determination of sanity, even where there was non-conflicting expert testimony that the

defendant was insane, there had been “other sufficient probative evidence from which a

conflicting inference of sanity reasonably could be drawn.” Id. at 710. Such probative

evidence is usually in the form of lay testimony that conflicts with the experts, but may also

come from other “probative demeanor evidence from which a conflicting inference of sanity

may be drawn.” Id. at 712. The court noted that such demeanor evidence may be most

useful where there is some indication that the defendant is feigning insanity, although it may

also be appropriate in cases where there is no evidence of feigning. Id. at 712-13. The court

also noted that demeanor evidence is of more limited value when the defendant has a long

history of mental illness, because the ability of the trier of fact to infer that a person’s actions

around the time of a crime are indicative of his actual mental health at the time of the crime is

logical when the defendant is not prone to delusions or hallucinations, but when the

defendant has a serious and well-documented mental disorder, that logic collapses. Id. at

713. The court concluded that evidence of demeanor during the crime is more probative than

evidence of demeanor before and after a crime, and that, in general, demeanor evidence must

be considered as a whole and in relation to all of the other evidence. Id. at 714. In the

Galloway case, our supreme court determined that there was not sufficient evidence of

probative value from which the trier of fact could have drawn an inference of sanity to

conflict with the unanimous expert testimony. Id. There had been no lay witness testimony


                                                13
that conflicted with the experts’ opinions, and in fact three eyewitnesses testified that

Galloway had been showing familiar signs of “losing it.” Id. Additionally, the trial court had

based its findings on the fact that Galloway had shopped, eaten, and filled his car with gas

that day without incident, and that Galloway had cooperated with the police after the

incident. Id. at 715. The Galloway court concluded that while those activities may represent

normal events, “when viewed against the defendant’s long history of mental illness with

psychotic episodes, the defendant’s demeanor during the crime, as testified to by three

eyewitnesses, and the absence of any suggestions of feigning or malingering, this demeanor

evidence is simply neutral and not probative of sanity.” Id.

       The question here, then, is whether there is sufficient probative evidence in the record

from which the trial court could have inferred that Kelley was sane at the time of the

stabbing, contrary to what the two psychiatrists determined. The record with this case is thin,

and the trial court gave no indication in its judgment as to how it determined that Kelley was

guilty but mentally ill rather than insane. While both psychiatrists seem to have reached their

conclusions based on very little information, given that Kelley would not talk much about the

incident, and they seem to have come to their conclusions on her mental status at the time of

the crime based largely on her mental health history, the rest of the record is similarly devoid

of much evidence. Shepard stated that there had been something wrong with Kelley that

morning and she had been different since she returned from her mother’s house that

weekend, but he did not think she was capable of hurting D.S. D.S. said the only weird thing

about Kelley before she began hitting D.S. was that she had said her kids made her mad and


                                              14
she was looking for money and an ID. The police report indicates that Kelley initially

complied with officers but then became combative, yelled for water, told them she had not

done anything, and remained unruly at the jail. Both psychiatrists referenced Kelley’s mental

health record, which spans several years, and includes multiple visits with FCCC and various

prescriptions for mental health conditions.

       While it appears that there was a limited foundation for the psychiatrists’

determinations, there is even less on which the trial court could have decided to disregard

those determinations. Kelley has a documented history of mental illness, and there is no

suggestion that she is feigning. Kelley’s interactions with police officers after the incident—

yelling for water, saying that she did not do anything—do not bolster a finding of sanity.

Kelley’s statement to Dr. Mueller that Shepard “knew what would happen,” may indicate that

Kelley understood the conduct, but does not necessarily indicate that she appreciated the

wrongfulness of that conduct at the time of the action; Dr. Mueller’s report suggests, in fact,

that Kelley did not appreciate the wrongfulness of her conduct even in hindsight. In short,

there was no lay witness testimony and little demeanor evidence from which the court could

have deduced, contrary to the two psychiatrists, that Kelley was sane at the time of the

incident. Relevantly, it seems that the only places from which the trial court could have

drawn inferences of sanity are from certain statements within the psychiatrists’ reports.

However, unlike additional testimony or evidence produced at a more “typical” trial, those

statements here were explicitly considered by the psychiatrists when reaching their

determinations that Kelley was legally insane at the time of the incident. While we


                                              15
sympathize with the difficult decision the trial court had to make in the face of a thin record

and no live testimony, we conclude that there was not “other sufficient probative evidence

from which a conflicting inference of sanity reasonably could be drawn,” and therefore the

trial court’s finding of guilty but mentally ill was in error. Galloway, 938 N.E.2d at 710. We

remand for the trial court to enter a finding of not guilty by reason of insanity on all counts of

which Kelley was originally convicted.

                               II. Sufficiency of the Evidence

       Although we have concluded that the trial court should have found Kelley not guilty

by reason of insanity, we address the issues of sufficiency of the evidence and double

jeopardy and conclude that, had we upheld the trial court’s finding of guilty but mentally ill,

we nonetheless would have reversed Kelley’s confinement conviction.

                                    A. Standard of Review

       The standard for reviewing sufficiency of the evidence claims is well settled. We do

not reweigh the evidence or assess the credibility of the witnesses. West v. State, 755 N.E.2d

173, 185 (Ind. 2001). Rather, we look to the evidence and reasonable inferences drawn

therefrom that support the verdict and will affirm the conviction if there is probative evidence

from which a reasonable trier-of-fact could have found the defendant guilty beyond a

reasonable doubt. Id.

                                  B. Identification of Kelley

       Kelley first contends that there was insufficient evidence to convict her of any of the

crimes because there was no in-court identification or other evidence linking Kelley to the


                                               16
Tammy Kelley named in the police reports. This argument is unpersuasive. Both parties

stipulated to the police reports, and Kelley did not object to their admission. There was never

even a suggestion below that this Kelley was not the Kelley referenced in the reports. In fact,

in opening statements her counsel said that the only question before the court was whether

Kelley was legally responsible for the crimes—implying that there was no question about

whether she had committed the crimes.

                                C. Battery of Police Officers

       Kelley next argues that there is insufficient evidence to support the two convictions

for battery of a law enforcement officer, because there was no evidence that the officers

suffered physical pain as a result of her kicking them in the groin. On the contrary, one of

the police reports notes that both officers complained of “pain and discomfort in the groin

area as a result of Kelley’s strikes.” Exh. 1 at 4. Any degree of bodily pain may constitute

bodily injury for the purposes of the battery statute. See Bailey v. State, 979 N.E.2d 133, 142

(Ind. 2012). Sufficient evidence supported these convictions.

                                      D. Confinement

       Kelley also argues that there is insufficient evidence to support her conviction for

confinement because there is no evidence that she knowingly or intentionally confined D.S.

or removed D.S. from the apartment. The criminal confinement statute provides that criminal

confinement has occurred when a person knowingly or intentionally “(1) confines another

person without the other person’s consent; or (2) removes another person, by fraud,

enticement, force, or threat of force, from one (1) place to another,” and enhances the offense


                                              17
to a Class C felony if “the person confined or removed is less than fourteen (14) years of age

and is not the confining or removing person’s child.” Ind. Code § 35-42-3-3. The State

argues that the sheer number of injuries indicate that D.S.’s liberty had been restrained and

that Kelley restrained that liberty using a knife and a locked door, thus hindering D.S.’s

ability to escape. We have previously held that in order to prove confinement beyond the

main crime charged, there must be something more than the act necessary to effectuate the

crime. Cunningham v. State, 870 N.E.2d 552, 553 (Ind. Ct. App. 2007). Moreover, “[a]n

inference of confinement does not arise from evidence of injury to the victim.” Id. at 554. If,

however, the confinement is more extensive than necessary to commit the main offense, then

conviction for confinement may be proper. Williams v. State, 889 N.E.2d 1274, 1281 (Ind.

Ct. App. 2008), trans. denied.

          Here, there is little to indicate confinement beyond battery. There is no indication that

Kelley locked the door to the apartment to keep D.S. from escaping, and it is entirely possible

that the door was locked from when Shepard had left earlier that morning. At one point, D.S.

did report to the police that Kelley had her “on the floor, stabbing her and she [D.S.] rolled

away from [Kelley] and got to the door.” Exh. 2 at 6. However, having D.S. on the floor

during part of the stabbing would be related to the attempted murder of which Kelley was

acquitted.5 The rest of the record does not indicate that Kelley otherwise held D.S. or

blocked her, and D.S. indicated that she was moving around and dodging Kelley during the




          5
              The stabbing is the only part of the incident that could have gone to the attempted murder
charge.

                                                        18
attack. We conclude that there was insufficient evidence to support Kelley’s conviction for

criminal confinement.

            III. Double Jeopardy: Kelley’s Battery and Confinement Convictions

       Although we have determined that there was insufficient evidence to support Kelley’s

conviction for criminal confinement, we briefly address the closely-related issue of double

jeopardy.      Kelley argues that her convictions for confinement and battery of D.S. were

based on the same actual evidence and thus violate double jeopardy.

       Our supreme court has concluded that two offenses are the same offense for double

jeopardy purposes 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) (emphasis in original). Under the actual evidence test, “the actual

evidence presented at trial is examined to determine whether each challenged offense was

established by separate and distinct facts.” Id. at 53. To find a double jeopardy violation

under this test, we must conclude that there is “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. A

“reasonable possibility” requires substantially more than a logical possibility, and “turns on a

practical assessment of whether the [fact finder] may have latched on to exactly the same

facts for both convictions.” Garrett v. State, 992 N.E.2d 710, 719-20 (Ind. 2013) (quoting

Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008)). “We evaluate the evidence from the [fact


                                              19
finder’s] perspective and may consider the charging information, jury instructions, and

arguments of counsel.” Id. at 720.

       Here, the charging information stated the elements of the crimes but did not include

details to indicate which facts supported the individual charges. See Richardson, 717 N.E.2d

at 51 (“Although the State may choose to do so, it is not required to include detailed factual

allegations in the charging instrument.”) (emphasis in original). Confinement was never

mentioned in the arguments of either Kelley or the State at the trial. While it is possible that

the court could have concluded that Kelley punching D.S. in the face supported the battery

charge and stabbing D.S. while she was on the floor supported the confinement charge—

setting aside for the moment the attempted murder charge—that is mere guesswork. The

emphasis in both the record submitted to the court as well as the opening and closing

arguments at trial was on the stabbings and on Kelley’s mental status. We note that the State,

in its brief, argues first that the confinement charge is supported by the sheer number of

injuries inflicted on D.S., and later that “[t]he confinement continued between batteries.”

Brief of Appellee at 11. At oral argument, however, the State argued that Kelley holding

D.S. down during part of the stabbing constituted confinement. This confusion on the part of

the State as to which actions supported the confinement charge further indicate that there is a

reasonable possibility that the trial court used the same facts to establish both the

confinement and battery convictions. Thus, if we had reached the issue of double jeopardy,

we would have concluded that Kelley’s confinement conviction was barred by double

jeopardy.


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                                          Conclusion

       Concluding that the trial court erred in contravening the unanimous determination of

the psychiatrists that Kelley was insane at the time of the incident, we reverse and remand

with instructions for the trial court to enter a finding of not guilty by reason of insanity.

       Reversed and remanded.

RILEY, J., and KIRSCH, J., concurs.




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