MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be                          Sep 28 2016, 6:54 am
regarded as precedent or cited before any
                                                                    CLERK
court except for the purpose of establishing                    Indiana Supreme Court
                                                                   Court of Appeals
the defense of res judicata, collateral                              and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Darren Bedwell                                          Gregory F. Zoeller
Marion County Public Defender                           Attorney General of Indiana
Indianapolis, Indiana
                                                        Justin F. Roebel
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Pugh,                                           September 28, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A05-1509-CR-1508
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Mark D. Stoner,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G06-1311-FA-75156



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1508 | September 28, 2016   Page 1 of 20
[1]   Michael Pugh was convicted of burglary as a class A felony, three counts of

      robbery as class B felonies, six counts of criminal confinement as class B

      felonies, attempted robbery as a class B felony, thirteen counts of forgery as

      class C felonies, conspiracy to commit forgery as a class C felony, two counts of

      battery as class C felonies, and two counts of carjacking as class B felonies.

      Pugh raises several issues which we revise and restate as:


              I.      Whether certain convictions for robbery, attempted robbery,
                      and carjacking violate double jeopardy principles; and

              II.     Whether certain convictions for criminal confinement and
                      forgery violate the continuous crime doctrine.

      We affirm in part and reverse in part.


                                      Facts and Procedural History

[2]   At approximately 5:00 a.m. on October 24, 2013, Adrian Anthony, Trae Spells,

      Taiwan Lundy, and Pugh broke into a home in Indianapolis belonging to R.N.

      and B.N. One of the men entered the bedroom and held R.N. and B.N. at

      gunpoint, and the other men grabbed their cell phones and ransacked the house,

      taking anything of value including jewelry, purses, a vase containing coins,

      cologne, watches, electronics, DVD players, an iPod, and televisions.


[3]   The men demanded money, and R.N. indicated their money was in the bank.

      One of the men fired a gun within a foot of R.N.’s head, shooting the wall.

      R.N. identified his debit card and wrote down his pin code so the men could

      use the ATM, and one of the men drove B.N.’s Jeep to an ATM. The men at

      the house stated that, if the man who went to the ATM was unable to obtain
      Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1508 | September 28, 2016   Page 2 of 20
      money, they were going to kill R.N. and B.N. R.N. and B.N. were held at

      gunpoint in the bedroom. The man who went to the ATM returned and stated

      “[t]hey lied. It didn’t work. The pin code didn’t work” and “[l]et’s shoot

      them.” Transcript at 69, 219.


[4]   The men took R.N. and B.N. from the bedroom to a living room, ordered them

      to their knees, and placed a pillow over their heads. R.N. and B.N. believed

      they were going to be shot at that point. The men kicked R.N. in the head, and

      R.N. pleaded with the men until they agreed to take him to the ATM. R.N.

      drove Anthony, who held R.N. at gunpoint, to the ATM. R.N. attempted to

      withdraw money, but was unsuccessful because access to his account had been

      locked due to the number of unsuccessful prior attempted transactions, and

      Anthony stated “[y]ou lied to me again. You guys are dead. You are dead

      absolutely.” Id. at 79. R.N. told Anthony that B.N. had a separate account

      with a separate debit card, Anthony agreed to retrieve B.N.’s debit card, and

      R.N. drove back to the house. While Anthony and R.N. were traveling to and

      from the ATM, the other men removed televisions from the walls. One of the

      men forced B.N. to lay on the floor with a blanket over her head, rubbed her

      back, butt, and breasts, and stated that “if he had a condom he would rape [her]

      but he didn’t want his DNA inside” her. Id. at 229.


[5]   After R.N. and Anthony returned to the house, B.N. searched for and found

      her debit card, which was in her wallet, and then Anthony forced her at

      gunpoint to drive him to the ATM. At the ATM, B.N. attempted to withdraw

      $800 but it did not work, and then she successfully withdrew $500. She then

      Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1508 | September 28, 2016   Page 3 of 20
      unsuccessfully attempted to make additional withdrawals. Anthony told her to

      tell the other men that she was able to withdraw only $400. B.N.’s last attempt

      to withdraw money occurred at 8:03:49 a.m.


[6]   Meanwhile, as Anthony and B.N. were traveling to and from the ATM, Spells

      asked R.N. for a passcode to a computer, which R.N. did not provide. R.N.

      was tied up with an orange extension cord, and Spells and Lundy struck R.N.

      with an iron urn, shattered a glass vase on his head, hit him in the head with a

      pizza stone, and punched him in the face. The men placed duct tape over

      R.N.’s eye, mouth, and nose, R.N. said that he could not breathe, and one of

      the men replied “I don’t care.” Id. at 90. One of the men told R.N. “[y]ou’ve

      never received a beating like this, white boy.” Id. at 91-92.


[7]   Anthony and B.N. arrived back at the house, and the men bound B.N. with a

      rope or cord and duct tape. One of the men wrapped a cord around B.N.’s neck

      and “touched [her] vagina really forcefully.” Id. at 247. R.N. heard the men

      stating that “they had to kill us, we knew too much, they had gone too far so

      they had no choice, they were going to kill us.” Id. at 97-98. The men struck

      R.N. and B.N. on their heads severely and repeatedly with a DVD player, and

      the blows were so forceful that B.N. at first thought she had been shot. The

      men loaded items into R.N. and B.N.’s Jeep and Subaru. Spells initially

      attempted to drive the Subaru but did not know how to drive a manual

      transmission, and he left the vehicle against a light post in the front yard of the

      house. After the men left, R.N. and B.N. removed their restraints, ran to a

      neighbor’s house, and called 911. The police discovered the Jeep and recovered

      Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1508 | September 28, 2016   Page 4 of 20
      some of the stolen items. The men sold phones and jewelry taken from R.N.

      and B.N. to a store, the store made a copy of Pugh’s photo identification, and

      the police later recovered the property.


[8]   The State, in an amended charging information, alleged Pugh, Anthony, Spells,

      and Lundy committed burglary as a class A felony, conspiracy to commit

      burglary as a class A felony, three counts of robbery as class B felonies, eleven

      counts of criminal confinement as class B felonies, two counts of intimidation

      as class C felonies, attempted robbery as a class B felony, thirteen counts of

      forgery as class C felonies, conspiracy to commit forgery as a class C felony,

      sexual battery as a class C felony, criminal deviate conduct as a class A felony,

      three counts of battery as class C felonies, and two counts of carjacking as class

      B felonies. Anthony, Pugh, and Lundy were tried together, and Spells testified

      that he entered a plea agreement, that his understanding was that he could be

      sentenced to fifty to eighty years, and that he agreed to testify in this case. The

      jury was given an instruction on accomplice liability. The jury found Pugh

      guilty on thirty counts and not guilty on one count of battery as a class C

      felony, the State dismissed nine counts, and the court merged the conviction for

      conspiracy to commit burglary with the conviction for burglary.


[9]   Ultimately, judgments of conviction were entered on the following: burglary as

      a class A felony under Count 1; robbery as class B felonies under Counts 3, 4,

      and 28; criminal confinement as class B felonies under Count 10, 22, 23, 26, 27,

      and 37; attempted robbery as a class B felony Count 11; forgery as class C

      felonies under Counts 12 through 21 and 29 through 31; conspiracy to commit

      Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1508 | September 28, 2016   Page 5 of 20
       forgery as a class C felony under Count 32; battery as class C felonies under

       Counts 33 and 38; and carjacking as class B felonies under Counts 39 and 40.

       The court sentenced Pugh to forty years on Count 1; fifteen years on Counts 3,

       4, 10, 11, 22, 23, 26, 27, 28, 37, 39, and 40; and six years on Counts 12 through

       21, 29 through 33, and 38. The court ordered that Counts 1, 3, 12, 33, 38, and

       39 be served consecutively and that all other counts be served concurrently, for

       an aggregate sentence of eighty-eight years.


                                                   Discussion

                                                         I.


[10]   The first issue is whether Pugh’s convictions for robbery, attempted robbery,

       and carjacking violate double jeopardy principles. The Indiana Constitution

       provides that “[n]o person shall be put in jeopardy twice for the same offense.”

       IND. CONST. art. 1, § 14. “Indiana’s Double Jeopardy Clause . . . prevent[s] the

       State from being able to proceed against a person twice for the same criminal

       transgression.” Hopkins v. State, 759 N.E.2d 633, 639 (Ind. 2001) (quoting

       Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). The Indiana Supreme Court

       has 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 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, 717 N.E.2d at 49.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1508 | September 28, 2016   Page 6 of 20
[11]   Pugh asserts that his convictions for robbery under Count 3 and attempted

       robbery under Count 11 are based in part on the same debit card and notes that

       the information for both counts alleged the defendants were armed with a

       deadly weapon. He also asserts that his carjacking convictions under Counts 39

       and 40 are based on the same actual facts as his robbery convictions under

       Counts 3 and 4, and argues that each carjacking count is included in Counts 3

       or 4 because each car is an item of property. The State responds that the

       convictions which Pugh challenges were proven by separate evidentiary facts

       and, with respect to the carjacking convictions, that the statutory elements test

       is inapplicable because the charges were based on separate acts and separate

       property.


[12]   In applying the actual evidence test, a defendant must demonstrate and a

       reviewing court must conclude that there is a reasonable possibility that the

       evidentiary facts used by the factfinder to establish the essential elements of an

       offense for which the defendant was convicted or acquitted may also have been

       used to establish all the essential elements of a second challenged offense. Hines

       v. State, 30 N.E.3d 1216, 1222 (Ind. 2015). The existence of a reasonable

       possibility 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, 720 (Ind. 2013). We evaluate the evidence from the jury’s

       perspective and may consider the charging information, jury instructions, and

       arguments of counsel. Id.


       A. Robbery and Attempted Robbery

       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1508 | September 28, 2016   Page 7 of 20
[13]   We first address Pugh’s argument that either his conviction on Count 3 or his

       conviction on Count 11 must be vacated. The State’s charging information for

       Count 3 alleged that Pugh, Anthony, Spells, and Lundy “did knowingly, while

       armed with a deadly weapon, that is: a handgun, take from the person or

       presence of [R.N.] property, that is: electronics and/or credit/debit cards

       and/or jewelry, and other items, by putting [R.N.] in fear or by using or

       threatening the use of force on [R.N.].” Appellant’s Appendix at 154. The

       information for Count 11 alleged that Pugh, Anthony, Spells, and Lundy “did

       attempt to commit the crime of Robbery, that is: to knowingly, while armed

       with a deadly weapon, that is: a handgun, take from the person or presence of

       [R.N.] property, that is: United States currency,” by “putting [R.N.] in fear or

       by using or threatening the use of force on R.N., and the following substantial

       step was committed in furtherance of the crime, that is: demanding [R.N.]’s

       PIN number to insert into the ATM[.]” Id. at 157. The jury was instructed as

       to these allegations.


[14]   The State elicited testimony from R.N. that the men took jewelry, cologne,

       watches, shoes, purses, electronics, DVD players, cell phones, and televisions,

       and it presented evidence of some of the property police recovered. R.N. also

       testified that the men asked “[w]here’s the cash,” that he replied “[i]t’s all in the

       bank,” and they replied “[w]ell, we’re going to go to the ATM. Write down

       your pin code.” Transcript at 64. R.N. “told them which one was [his] debit

       card and that way they could go to the ATM and withdraw money” and he

       “wrote it down on the back of a business card, [his] pin code.” Id. at 64-65.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1508 | September 28, 2016   Page 8 of 20
       R.N. testified that he and B.N. “[g]ave them directions on which way to go to

       get to that bank to withdraw that money” and he gave the information to “the

       lead guy with the gun on us the whole time.” Id. at 65. R.N. testified that

       “[t]he threats were made that if they went and we were playing any games, I

       didn’t write down the pin code, if they couldn’t get money that we would die.”

       Id. at 68. One of the men then took R.N.’s debit card to the ATM and

       attempted, unsuccessfully, to withdraw cash.


[15]   The record reveals that Counts 3 and 11 were not supported by the same

       evidentiary facts. Although Count 3 alleged that Pugh and the other men took

       debit cards, it also alleged they took other property including electronics and

       jewelry, and extensive evidence was before the jury regarding the property

       taken by the men in addition to R.N.’s debit card and that the men also

       demanded R.N.’s pin in order to use the debit card. Based upon the record, we

       conclude there is no reasonable possibility that the evidentiary facts used to

       establish the essential elements of Pugh’s conviction for attempted robbery

       under Count 11 were used to establish all the essential elements of his

       conviction for robbery under Count 3.


[16]   Further, to the extent Counts 3 and 11 both alleged that Pugh committed the

       crimes while armed with a deadly weapon, we note that the fact the offenses

       were committed while armed with a gun or the same gun does not require the

       reversal of either conviction or a reduction of the level of felony of either

       conviction on double jeopardy grounds. See Sistrunk v. State, 36 N.E.3d 1051,

       1054 (Ind. 2015) (concluding “that committing two or more separate offenses

       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1508 | September 28, 2016   Page 9 of 20
       each while armed with a deadly weapon—even the same weapon—is not

       within the category of rules precluding the enhancement of each offense”)

       (citing Gates v. State, 759 N.E.2d 631, 633 n.2 (Ind. 2001) (“It is well established

       in Indiana that the use of a single deadly weapon during the commission of

       separate offenses may enhance the level of each offense.”)). We find no double

       jeopardy violation with respect to Pugh’s convictions on Counts 3 and 11.


       B. Carjacking and Robbery


[17]   We next address Pugh’s argument that his convictions on Counts 39 and 40

       should be vacated. To the extent Pugh argues the statutory elements test is

       applicable and “[e]ach Carjacking count (Counts 39 and 40[]) is included in

       Count 3 or Count 4 because each car is an item of property,” Appellant’s Brief

       at 21, we observe that the State’s charging information for Count 3 alleged that

       Pugh and the other defendants did knowingly take, from the person or presence

       of R.N., property, “that is: electronics and/or credit/debit cards and/or

       jewelry, and other items . . . .” Appellant’s Appendix at 154. Count 4

       contained similar allegations except that B.N. was the alleged victim. Count 39

       alleged that the men did knowingly take, from the person or presence of R.N.

       and/or B.N., “a motor vehicle, that is: a 2006 Jeep Commander,” and Count

       40 alleged the men did knowingly take, from the person or presence of R.N.

       and/or B.N., “a motor vehicle, that is: a 2010 Subaru Impreza . . . .” Id. at 165-

       166. The carjacking offenses as charged in this case are not lesser-included

       offenses of the robbery offenses because the robbery offenses were based on the

       taking of property other than the vehicles, and the convictions do not violate the

       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1508 | September 28, 2016 Page 10 of 20
       statutory elements test. See Goudy v. State, 689 N.E.2d 686, 698 (Ind. 1997)

       (emphasizing that, while the conviction for carjacking was a lesser-included

       offense of robbery as charged in that case, “Carjacking would not necessarily

       always be an included offense within Robbery” and that, “[i]f a person was

       convicted of Carjacking for the taking of a motor vehicle and of Robbery for the

       taking of some other property, then ordinarily no ‘included offense’ problems

       would arise”), reh’g denied.


[18]   To the extent Pugh argues his convictions on Counts 39 and 40 must be vacated

       because they are based on the same actual facts as Counts 3 and 4, the record

       reveals that the State presented evidence that the men took electronics, jewelry,

       and other items. Additionally, the State presented evidence which established

       that the men took a 2006 Jeep Commander and a 2010 Subaru Impreza. The

       jury was instructed regarding the four counts. The record reveals that Pugh’s

       convictions on Counts 3, 4, 39, and 40 were not supported by the same

       evidentiary facts. Extensive evidence was before the jury regarding the property

       taken by the defendants in addition to the vehicles. Based upon the record, we

       conclude there is no reasonable possibility that the evidentiary facts used to

       establish the essential elements of Pugh’s convictions for carjacking under

       Counts 39 and 40 were used to establish all the essential elements of his

       convictions for robbery under Counts 3 and 4. We find no double jeopardy

       violation with respect to Counts 39 and 40.


                                                         II.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1508 | September 28, 2016 Page 11 of 20
[19]   The next issue is whether Pugh’s convictions for criminal confinement and

       forgery violate the continuous crime doctrine. The continuous crime doctrine

       defines those instances where a defendant’s conduct amounts only to a single

       chargeable crime and prevents the State from charging a defendant twice for the

       same continuous offense. Koch v. State, 952 N.E.2d 359, 373 (Ind. Ct. App.

       2011), trans. denied. The 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.” Id. (citation omitted). The

       doctrine applies in those situations where a defendant is charged multiple times

       with one offense. Id. 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. Hines, 30 N.E.3d at 1219 (citing Pierce v. State, 761 N.E.2d

       826, 830 (Ind. 2002) (recognizing “a series of rules of statutory construction and

       common law that are often described as double jeopardy, but are not governed

       by the constitutional test set forth in Richardson”)). The continuous crime

       doctrine requires a fact-sensitive analysis. Chavez v. State, 988 N.E.2d 1226,

       1229 (Ind. Ct. App. 2013), trans. denied.


       A. Criminal Confinement


[20]   Pugh asserts that four of his five criminal confinement convictions related to the

       confinement of B.N. must be vacated pursuant to the continuous crime

       doctrine, that B.N. was continuously confined from the time the men entered

       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1508 | September 28, 2016 Page 12 of 20
       the bedroom until they left the house around 8:00 a.m., and that during that

       time B.N. was not objectively or subjectively free to leave. The State concedes

       that Pugh’s multiple convictions for criminal confinement may violate the

       continuous crime doctrine. It maintains, however, that “the circumstances of

       the confinement and intended crimes changed when B.N. was taken to an

       entirely different location to access an ATM,” that Count 27 was different in

       that B.N. was removed from the residence and the confinement was aimed at

       the different intended crime of forgery, and that Count 37 related to her

       restraint after being returned to the residence so that one of the men could

       commit further sexual touchings and Pugh could batter her with the DVD

       player. Appellee’s Brief at 22.


[21]   Pugh was convicted of criminal confinement under Counts 10, 22, 23, 26, 27,

       and 37. Count 10 related to the confinement of R.N., and the other counts

       related to the confinement of B.N. In particular, Count 10 alleged that the men

       “did knowingly, by force, or threat of force, remove [R.N.] from one place to

       another, that is: from the residence . . . to a Chase Bank branch.” Appellant’s

       Appendix at 156. With respect to the confinement of B.N., Count 22 alleged

       the men “did knowingly . . . remove [B.N.] from one place to another, that is:

       from the bedroom of the residence to the living area,” Count 23 alleged they

       “did knowingly . . . confine [B.N.] by ordering [her] to get down on to the

       floor,” Count 26 alleged they “did knowingly . . . remove [B.N.] from one place

       to another, that is: ordering her from the living area to search the residence for

       her purse,” Count 27 alleged they “did knowingly . . . remove [B.N.] from one


       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1508 | September 28, 2016 Page 13 of 20
       place to another, that is: from the residence . . . to a Chase Bank branch,” and

       Count 37 alleged they “did knowingly . . . confine [B.N.] by binding [her]

       hands and feet with duct tape and/or tying [her] neck, hands and feet with a

       rope.” Id. at 160-162, 165.


[22]   At the time of the home invasion, Ind. Code § 35-42-3-3 (2013) provided that

       “[a] person who 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; commits

       criminal confinement” and that the offense is “a Class B felony if it: (A) is

       committed while armed with a deadly weapon” or “(B) results in serious bodily

       injury to a person other than the confining or removing person.” (Subsequently

       amended by Pub. L. No. 158-2013, § 434 (eff. Jul. 1, 2014)).


[23]   In Hines, the Indiana Supreme Court stated the legislature defines “when a

       criminal offense is ‘continuous,’ e.g. not terminated by a single act or fact but

       subsisting for a definite period and covering successive, similar occurrences”

       and that it had applied the continuous crime doctrine in the context of

       confinement. 30 N.E.3d at 1219-1220, 1220 n.2 (citing Bartlett v. State, 711

       N.E.2d 497, 500-501 (Ind. 1999) (noting that the unlawful detention began

       when defendant pointed a gun at the victim and ended only when the victim

       escaped, that at no point before the victim’s escape was he free to go, and that

       between these two points the victim was either tied up, under the control of the

       gun, or acting under the threat or fear of force); Haggard v. State, 445 N.E.2d

       969, 972 (Ind. 1983) (noting the defendant committed one continuous act which

       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1508 | September 28, 2016 Page 14 of 20
       violated the state statute against confinement and there was no evidence of any

       interruption of this confinement at any point from the time of a robbery until

       the act of rape was concluded), modified on other grounds).


[24]   In Penrod v. State, the Court stated that “[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.” 810 N.E.2d 345,

       346 (Ind. 2004) (citing 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.” Id. (citing Curry

       v. State, 643 N.E.2d 963, 980-981 (Ind. Ct. App. 1994), reh’g denied, trans.

       denied).


[25]   The record reveals that B.N.’s confinement began when the defendants entered

       the bedroom and that, from that moment until the men left the house over three

       hours later, B.N. did not feel free, and in fact was not free, from detention.

       Throughout the entire period, B.N. was either bound, restrained by the use of a

       gun, or acting under the threat or fear of force. B.N. was not free to leave

       immediately after she was removed from the bedroom of the residence to the

       living area, after she was ordered to the floor, after she was ordered to search

       for her purse, or after she was removed from the residence to travel to the

       ATM. The fact that there are variations in the way the counts related to B.N.’s

       confinement were charged does not support multiple convictions. In short,

       B.N. was continuously confined from the time the men entered the house



       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1508 | September 28, 2016 Page 15 of 20
       around 5:00 a.m. until they left the house after 8:00 a.m., and there is no

       evidence of any interruption of B.N’s confinement during this period.


[26]   Based upon the record, we conclude that the acts alleged in Counts 10, 22, 23,

       26, 27, and 37 related to the confinement of R.N. were sufficiently compressed

       in terms of singleness of purpose and continuity of action so as to constitute a

       single transaction for purposes of the continuous crime doctrine. See Penrod,

       810 N.E.2d at 346 (observing that the charging instrument alleged that

       kidnapping occurred when the defendant confined the victim in the course of

       hijacking her vehicle, that one of the confinement counts alleged that the

       defendant confined the victim by transporting her to the scene where he

       assaulted her, and that the other confinement count alleged that he confined her

       by placing her in the trunk of a vehicle, and concluding that the events

       constituted one continuous confinement and that “[t]he confinements as

       charged here occurred during the greater course of the kidnapping and thus

       were not appropriate as separate crimes”); Curry, 643 N.E.2d at 980-981

       (observing the evidence established only one continuous confinement, that the

       victim was confined and removed from one place to another but was never free

       from detention during the twenty-six-hour confinement and that, even during

       the defendant’s absences, she did not feel free to attempt an escape).

       Accordingly, we remand with instructions to vacate Pugh’s convictions for

       criminal confinement under Counts 23, 26, 27, and 37.


       B. Forgery



       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1508 | September 28, 2016 Page 16 of 20
[27]   Pugh further asserts that there were three trips to the ATM to steal money, that

       Counts 12 through 16 are based on the first trip when one of the men took

       R.N.’s card to the bank and unsuccessfully attempted to withdraw money, that

       Counts 17 through 21 are based on the second trip to the bank with R.N. during

       which R.N. unsuccessfully attempted to make withdrawals, that Counts 29

       through 31 are based on the third trip to the bank with B.N. during which she

       withdrew money using her debit card, and that all but three forgery convictions

       should be vacated under the continuous crime doctrine. The State responds

       that “each finite act of utterance by entering one of the victims’ ATM cards into

       the ATM and entering a pin code was alleged to be a distinct act of forgery”

       and that “[t]hese distinct criminal acts included thirteen attempted ATM

       transactions and one successful ATM transaction from R.N. and B.N.’s

       accounts.” Appellee’s Brief at 25-26.


[28]   In Wiseman v. State, the defendant was convicted of seven separate counts of

       forgery. 521 N.E.2d 942, 945 (Ind. 1988), reh’g denied. The Indiana Supreme

       Court observed that each information for forgery charged that the defendant,

       unlawfully and with intent to defraud, uttered to a bank a forged check and that

       the seven stolen checks were presented to a bank at the same time, on the same

       date, to the same person, and were all listed on one deposit slip. Id. at 946. The

       Court held that the conduct of the defendant supported a single count of forgery

       and that he had been erroneously subjected to forgery convictions on multiple

       counts. Id.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1508 | September 28, 2016 Page 17 of 20
[29]   In Blythe v. State, this court observed that the defendant was convicted of nine

       counts of forgery, with each count related to a different falsified signature, but

       all sharing the common intent to defraud, namely, to obtain the approval of the

       ballot petitions for a presidential candidate. 14 N.E.3d 823, 831 (Ind. Ct. App.

       2014). We noted that the charging information alleged that the offenses

       occurred on or about January and February 2008, that the falsified signatures

       were placed on the ballot petitions during a relatively short period of time in St.

       Joseph County, and that the placement of the falsified signatures was

       performed for a single purpose, and we concluded that the defendant’s actions

       constituted a single act of forgery. Id.


[30]   Based upon the evidence, we conclude that Pugh’s actions constituted three acts

       of forgery rather than thirteen. The first act of forgery occurred when one of the

       men took R.N.’s debit card to an ATM and unsuccessfully attempted to

       withdraw cash. State’s Exhibit 216 shows that there were five attempted

       transactions, all of which were declined, over a period of one minute and seven

       seconds, and the declined transactions occurred at 6:17:43 a.m., 6:18:06 a.m.,

       6:18:15 a.m., 6:18:39 a.m., and 6:18:50 a.m. These actions, alleged in Counts

       12 through 16, were sufficiently compressed in terms of time, place, singleness

       of purpose, and continuity of action so as to constitute a single transaction for

       purposes of the continuous crime doctrine.


[31]   The second act of forgery occurred when Anthony took R.N. to the ATM and

       R.N. unsuccessfully attempted to withdraw cash. State’s Exhibit 216 shows

       that there were five attempted transactions, all of which were declined, over a

       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1508 | September 28, 2016 Page 18 of 20
       period of fifty-six seconds, and the declined transactions occurred at 7:36:32

       a.m., 7:36:40 a.m., 7:36:59 a.m., 7:37:17 a.m., and 7:37:28 a.m. These actions,

       alleged in Counts 17 through 21, were sufficiently compressed in terms of time,

       place, singleness of purpose, and continuity of action so as to constitute a single

       transaction.


[32]   The final act of forgery occurred when one of the men took B.N. to the ATM to

       withdraw cash. During this trip, B.N. successfully withdrew $500 in one

       transaction at 8:01:32 a.m., attempted to make a withdrawal of $200 at 8:02:47

       a.m., which was declined, and then attempted to make a withdrawal of $80 at

       8:03:49 a.m., which was also declined, and the transactions occurred over a

       period of two minutes and seventeen seconds. These actions, alleged in Counts

       29 through 31, were sufficiently compressed in terms of singleness of purpose

       and continuity of action so as to constitute a single transaction for purposes of

       the continuous crime doctrine.


[33]   Therefore, we remand with instructions to vacate Pugh’s convictions for forgery

       under Counts 13 through 16, Counts 18 through 21, and Counts 30 and 31. See

       Wiseman, 521 N.E.2d at 946 (holding that the conduct of the defendant

       supported a single count of forgery and the defendant was erroneously

       subjected to multiple forgery convictions and remanding for resentencing to

       reflect conviction of just one count of forgery); Blythe, 14 N.E.3d at 831

       (concluding the defendant’s actions constituted a single act of forgery and

       remanding with instructions to vacate eight of the defendant’s nine forgery

       convictions); see also Chavez, 988 N.E.2d at 1229 (holding that the defendant

       Court of Appeals of Indiana | Memorandum Decision 49A05-1509-CR-1508 | September 28, 2016 Page 19 of 20
       committed two crimes of child molesting rather than five and noting that three

       of the acts occurred during a first encounter between the defendant and the

       victim and two of the acts occurred during a second encounter); Duvall v. State,

       978 N.E.2d 417, 428 (Ind. Ct. App. 2012) (noting in part that the defendant’s

       convictions for insurance fraud stemmed from six false statements given in a

       single insurance investigation interview and holding that the defendant’s

       conduct was continuous so as to constitute one offense of insurance fraud),

       trans. denied.


                                                       Conclusion

[34]   For the foregoing reasons, we remand with instructions to vacate Pugh’s

       convictions for criminal confinement under Counts 23, 26, 27, and 37 and his

       convictions for forgery under Counts 13 through 16, Counts 18 through 21, and

       Counts 30 and 31.1 We affirm Pugh’s other convictions.


[35]   Affirmed in part and reversed in part.


       Baker, J., and May, J., concur.




       1
         Pugh’s aggregate sentence will not be affected as the trial court ordered that the sentences for the
       convictions which we order vacated be served concurrently with other sentences we do not disturb.

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