MEMORANDUM DECISION                                                              FILED
                                                                            Nov 15 2017, 8:31 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                                     CLERK
                                                                             Indiana Supreme Court
precedent or cited before any court except for the                              Court of Appeals
                                                                                  and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                     Curtis T. Hill, Jr.
Indianapolis, Indiana                                  Attorney General of Indiana
                                                       Christina D. Pace
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Chad M. Farrell,                                           November 15, 2017

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           76A05-1705-CR-1002

        v.                                                 Appeal from the Steuben Circuit
                                                           Court
State of Indiana,                                          The Hon. Allen N. Wheat, Judge
                                                           Trial Court Cause No.
Appellee-Plaintiff.
                                                           76C01-1602-F1-104




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 76A05-1705-CR-1002 | November 15, 2017             Page 1 of 6
                                          Case Summary
[1]   Appellant-Defendant Chad Farrell feigned illness to lure his ex-girlfriend A.B.

      to his Steuben County trailer home, where he forcibly raped her at knifepoint.

      When A.B. attempted to flee, Farrell prevented her escape by standing in the

      doorway, brandishing the same knife. The State charged Farrell with Level 1

      felony rape and Level 3 felony criminal confinement, a jury convicted him as

      charged, and the trial court sentenced him to an aggregate term of forty-five

      years of incarceration. Farrell contends that his convictions violate prohibitions

      against double jeopardy. Because we disagree, we affirm.



                            Facts and Procedural History
[2]   On February 18, 2016, at around 11:50 p.m., Farrell called A.B., with whom he

      had previously been romantically involved, and asked her to take him from

      work to the hospital because he claimed to be having chest pains. A.B. started

      driving to the hospital, but Farrell told her to just take him home so he could lie

      down. The duo arrived at Farrell’s trailer at approximately midnight. Once

      inside, Farrell asked A.B. to help him to his bed. As they neared the bed,

      Farrell threw A.B. on the bed and yelled that she “deserved this.” Tr. Vol. II p.

      173.


[3]   Farrell pulled off A.B.’s shoes, jeans, and underwear. Farrell told A.B. “that

      [she] deserve[d] this … this is what you get[.]” Tr. Vol. II p. 175. Farrell

      removed his shoes, jeans, and underwear; climbed on top of A.B.; put his penis


      Court of Appeals of Indiana | Memorandum Decision 76A05-1705-CR-1002 | November 15, 2017   Page 2 of 6
      inside of A.B.’s vagina; and began to rape her. Farrell produced a knife and

      held it in his right hand, telling A.B. that she was not leaving until she watched

      him slit his wrists. Farrell ejaculated during his rape of A.B.


[4]   A.B. asked Farrell for a drink of water. After Farrell climbed off A.B., put his

      clothes on, and walked to the kitchen for the glass of water, A.B. dressed and

      ran for the door. Farrell, however, beat A.B. to the door and prevented her

      from exiting by standing between her and the door. Farrell still had the knife in

      his hand.


[5]   A.B. went to the kitchen for a glass of water and returned to find that Farrell

      was still between her and the door. A.B. pleaded with Farrell to let her leave,

      but he told her that she was not leaving until she watched him slit his wrists.

      A.B. continued to plead with Farrell to let her out of the door. Farrell leaned

      against the door and closed his eyes, and, at some point, appeared to lose

      consciousness. A.B. hid the knife in Farrell’s couch between the armrest and

      the cushion and managed to move Farrell enough to leave.


[6]   On February 19, 2016, the State charged Farrell with Level 1 felony rape and

      Level 3 felony criminal confinement. A jury trial was held on March 15 and

      16, 2017, and the jury found Farrell guilty as charged. On April 10, 2017, the

      trial court sentenced Farrell to thirty-five years of incarceration for rape, ten

      years for criminal confinement, and order that the sentences would run

      consecutively for an aggregate sentence of forty-five years.




      Court of Appeals of Indiana | Memorandum Decision 76A05-1705-CR-1002 | November 15, 2017   Page 3 of 6
                                Discussion and Decision
[7]   Farrell argues that his convictions for Level 1 felony rape and Level 3 felony

      criminal confinement violate prohibitions against double jeopardy. In

      Richardson v. State, 717 N.E.2d 32 (Ind. 1999), the Indiana Supreme Court 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 … the actual evidence

      used to convict, the essential elements of one challenged offense also establish

      the essential elements of another challenged offense.” Id. at 49-50.


              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. at 53. Merely a remote or speculative possibility is not enough; rather, the

      record must establish that the jury used the same evidentiary facts to establish

      the essential elements of the two offenses. Hopkins v. State, 759 N.E.2d 633, 640

      (Ind. 2001) (citations omitted). “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 v. State,

      892 N.E.2d 1231, 1234 (Ind. 2008) (citing Spivey v. State, 761 N.E.2d at 832

      (Ind. 2002); Richardson, 717 N.E.2d at 54 n.48).


[8]   Farrell was charged with Level 1 felony rape for “knowingly or intentionally

      hav[ing] sexual intercourse with A.B., when A.B. was compelled by force or


      Court of Appeals of Indiana | Memorandum Decision 76A05-1705-CR-1002 | November 15, 2017   Page 4 of 6
       imminent threat of force … while armed with a deadly weapon, to-wit: a

       knife[.]” Appellant’s App. Vol. II p. 20. Farrell was also charged with Level 3

       felony criminal confinement for “knowingly or intentionally confin[ing] A.B.

       without A.B.’s consent … while armed with a deadly weapon, to wit [sic]: a

       knife.” Appellant’s App. Vol. II p. 21. As the Indiana Supreme Court has

       noted in a similar case, “[c]ertainly, one who commits rape or criminal deviate

       conduct necessarily ‘confines’ the victim at least long enough to complete such

       a forcible crime.” Gates v. State, 759 N.E.2d 631, 632 (Ind. 2001). The

       question, then, is “whether the confinement exceeded the bounds of the force

       used to commit the rape[.]” Id. On this record, we conclude that the State

       easily established that Farrell’s confinement of A.B. exceeded the bounds of the

       force he used during his rape of her.


[9]    First and foremost, the two convictions were proved by largely separate bodies

       of evidence. The State presented evidence that Farrell lured A.B. to his trailer,

       forced her onto his bed, undressed her, and forcibly raped her while holding a

       knife. After the rape was complete and Farrell had put his clothing back on, he

       confined her in his trailer by standing in front of the door, again while holding

       the knife. Other than the common facts of Farrell, A.B., and Farrell’s knife,

       there is no overlap between the two crimes from an evidentiary standpoint.


[10]   Moreover, in its opening, the State clearly distinguished between the separate

       evidentiary facts it intended to prove that supported each charge:


               I’m going to present evidence, the elements of rape that the
               Defendant; should expect testimony that he’s going to be

       Court of Appeals of Indiana | Memorandum Decision 76A05-1705-CR-1002 | November 15, 2017   Page 5 of 6
               identified, [A.B.]’s going to identify him, Trooper Lazoff’s going
               to identify him. Had sexual intercourse; that he had sexual
               intercourse with [A.B.]. And [A.B.]’s going to describe to you, as
               best as she can, she’s going to describe to you what that was and
               what that was like and what he did. And the DNA analysis is
               going to come back to show, yes indeed his DNA was all up
               inside her. And that she was compelled by force or imminent
               threat of force; my third element to rape. She’s going to describe
               being thrown on the bed and him getting on top of her and him
               holding a knife on her. And then of course, right, I’ve gotta’
               prove to you that he had a deadly, that he possessed a deadly
               weapon when he did it, that being a knife. You can, right, you
               can kill people with a knife. And then our criminal confinement;
               I’m going to present evidence again it’s going to Mr. Farrell
               that’s identified as the Defendant. [A.B.] is going to describe that
               he confined her by getting between her and the door and not
               letting her leave without [A.B.]’s consent. She’ll describe tying to
               leave, asking to leave and he wouldn’t let her. And again
               committed with; while armed with a deadly weapon, that being a
               knife that has some yellow, has some black on it, six (6) inch
               folding knife.
       Tr. Vol. II pp. 141-42.


[11]   Farrell’s act of blocking the door, thereby confining A.B. to his trailer, exceeded

       the bounds of his confinement of her during the rape, and, as such, may be

       separately punished. Farrell has failed to establish a reasonable possibility that

       the jury relied on the same evidentiary facts to convict him of both rape and

       criminal confinement.


[12]   We affirm the judgment of the trial court.


       May, J., and Barnes, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 76A05-1705-CR-1002 | November 15, 2017   Page 6 of 6
