MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Oct 06 2015, 8:30 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
Craig Persinger                                          Gregory F. Zoeller
Marion, Indiana                                          Attorney General of Indiana
                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

William M. Cox,                                          October 6, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         27A04-1412-CR-579
        v.                                               Appeal from the Grant Superior
                                                         Court
State of Indiana,                                        The Honorable Dana J.
Appellee-Plaintiff.                                      Kenworthy, Judge
                                                         Trial Court Cause No.
                                                         27D02-1306-FB-50



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A04-1412-CR-579 | October 6, 2015     Page 1 of 12
[1]   William M. Cox (“Cox”) was found guilty by a jury of criminal confinement 1 as

      a Class B felony, battery2 as a Class C felony, one count of strangulation3 as a

      Class D felony, and domestic battery4 as a Class A misdemeanor.5 Cox

      appeals, raising the following restated issues for our review:


                    I.    Whether sufficient evidence supported Cox’s conviction
                          for criminal confinement as a Class B felony. Specifically,
                          was there evidence to prove beyond a reasonable doubt
                          that Cox substantially interfered with the victim’s liberty;
                          and


                  II.     Whether Cox’s convictions for criminal confinement as a
                          Class B felony, battery as a Class C felony, and
                          strangulation as a Class D felony violated the actual
                          evidence test under Indiana’s Double Jeopardy Clause.


[2]   We affirm in part, reverse in part, and remand with instructions.


                                         Facts and Procedural History
[3]   In May of 2013, Cox and Terri Denton (“Denton”) were in a relationship and

      lived together in a home owned by Denton in Upland, Indiana. On May 31,




      1
          See Ind. Code § 35-42-3-3(b)(2).
      2
          See Ind. Code § 35-42-2-1.
      3
          See Ind. Code § 35-42-2-9.
      4
          See Ind. Code § 35-42-2-1.3.
      5
        We note that, effective July 1, 2014, a new version of these criminal statutes was enacted. Because Cox
      committed his crimes prior to July 1, 2014, we will apply the statutes in effect at the time he committed his
      crimes.

      Court of Appeals of Indiana | Memorandum Decision 27A04-1412-CR-579 | October 6, 2015              Page 2 of 12
      2013, Cox and Denton got into an argument, prompting Denton to leave for

      work early to get away from Cox. After Denton left her home, Cox called her

      phone repeatedly and followed Denton to her place of employment, where they

      had another argument prior to the start of Denton’s shift.


[4]   When Denton completed her shift later that evening at 11:00 p.m., she saw Cox

      pull into the parking lot. Cox appeared intoxicated, but Denton asked him to

      follow her home to continue to discuss their problems. Upon arriving home,

      Denton went to the master bathroom to use the restroom. Cox followed her

      into the restroom, announced that “I am going to teach you,” Tr. at 185.,

      grabbed Denton’s throat, and forced her into the window behind the toilet.

      Cox pushed Denton into the window with such force that the window broke,

      leaving Denton with cuts and bruises across her back and down her arm.

      Denton screamed, causing Cox to put one hand around her throat and his other

      hand to cover Denton’s nose and mouth. Denton was unable to breath at this

      time.


[5]   Cox proceeded to throw Denton onto the bathroom floor, straddle her, and

      place both hands around Denton’s throat as he yelled at her. Denton continued

      to scream and fight back, prompting Cox to cover her mouth and nose a second

      time while he tried to pin Denton’s arms down with his legs. Denton was

      unable to breath and eventually lost consciousness.


[6]   When Denton regained consciousness, she realized she had been moved from

      the master bathroom floor to her bedroom floor near the foot of the bed.


      Court of Appeals of Indiana | Memorandum Decision 27A04-1412-CR-579 | October 6, 2015   Page 3 of 12
      Denton tried to stand up, but was stopped when Cox placed his hands over her

      mouth and nose, inhibiting her ability to breathe a third time that evening. Cox

      told Denton that he would remove his hands if she stopped trying to scream.

      As he began to remove his hands, Denton tried to break a window to escape.

      Cox was able to stop Denton before she could break the window or escape and

      pinned her to the bed. He proceeded to wrap his hands around Denton’s throat

      and cover her mouth and nose for a fourth time.


[7]   Denton managed to break free from Cox’s hold and attempted to run through

      the kitchen to the front door, but fell along the way scraping her legs in the

      process. Consequently, Cox was able to catch Denton and pin her to a

      reclining chair near the front door. Cox then placed his hands around Denton’s

      throat and over her mouth and nose for the fifth time that evening. When

      Denton tried to fight back, Cox struck her head with his fists multiple times and

      split her lip open.


[8]   Denton was again able to free herself from Cox. This time, she successfully ran

      out of the house and into her car. Cox followed Denton and jumped into the

      vehicle as she tried to back out of the driveway. Cox stopped the vehicle and

      turned it off before pinning Denton between the two front seats; he then

      wrapped his hands around her neck and covered her mouth and nose a sixth

      time. Fighting back, Denton was able to flee the vehicle and conceal herself in

      a patch of tall grass. Denton remained hidden for some time after she watched

      Cox return inside her home with the car keys.



      Court of Appeals of Indiana | Memorandum Decision 27A04-1412-CR-579 | October 6, 2015   Page 4 of 12
[9]    When Denton was sure that Cox was asleep, she retrieved her car keys from the

       house. Unsure of where else to go, Denton decided to sleep in her car in the

       driveway. She went back inside her home the next morning after Cox was

       gone. Looking in the bathroom mirror, she was able to see her many injuries

       and documented them by taking pictures with her cell phone. In addition to

       having been rendered unconscious the previous evening, Denton suffered from

       a knot on her head, cuts to her left arm, bruises in the form of fingerprints on

       her right arm, and a split lip. Denton also had scratches and bruising in the

       form of a handprint on her neck, bruising to the side of her face and jaw, and

       scratches and bruising on her knees. Later that day, on June 1, 2013, Denton

       went to work where her daughter and co-workers observed her injuries. Two

       days later, on June 3, 2013, Denton went to the hospital and reported the

       incident.


[10]   On June 17, 2013, the State charged Cox with criminal confinement as a Class

       B felony, battery as a Class C felony, two counts of strangulation as Class D

       felonies, and domestic battery as a Class A misdemeanor. Cox proceeded to a

       trial by jury that began on October 28, 2014. On October 29, 2014, the jury

       found Cox guilty of criminal confinement as a Class B felony, battery as a Class

       C felony, one count of strangulation as a Class D felony (by applying pressure

       to the throat or neck), and domestic battery as a Class A misdemeanor; Cox

       was found not guilty of the second count of strangulation as a Class D felony

       (obstructing nose or mouth).




       Court of Appeals of Indiana | Memorandum Decision 27A04-1412-CR-579 | October 6, 2015   Page 5 of 12
[11]   On December 1, 2014, the trial court sentenced Cox to twenty years for Class B

       felony confinement; eight years for Class C felony battery; three years for Class

       D strangulation; and one year for Class A misdemeanor domestic battery. The

       confinement and Class C felony battery sentences were to be served

       concurrently but consecutive to the remaining sentences for an aggregate term

       of twenty-four years executed. Cox now appeals.


                                        Discussion and Decision

                                   I.      Sufficiency of Evidence
[12]   When we review the sufficiency of evidence to support a conviction, we do not

       reweigh the evidence or assess the credibility of the witnesses. Cunningham v.

       State, 870 N.E.2d 552, 553 (Ind. Ct. App. 2007). “We consider only the

       evidence most favorable to the verdict and the reasonable inferences that can be

       drawn from this evidence. We will not disturb the jury’s verdict if there is

       substantial evidence of probative value to support it.” Fuentes v. State, 10

       N.E.3d 68, 75 (Ind. Ct. App. 2014). As the reviewing court, we respect “the

       jury’s exclusive province to weigh conflicting evidence.” McHenry v. State, 820

       N.E.2d 124, 126 (Ind. 2005).


[13]   Cox contends that there was insufficient evidence to support the jury’s finding

       that he confined Denton. Specifically, Cox challenges the sufficiency of the

       evidence to prove that he substantially interfered with Denton’s liberty. The

       jury was instructed that in order to convict Cox of criminal confinement, the

       State had to prove that he (a) knowingly or intentionally, (b) confined Denton


       Court of Appeals of Indiana | Memorandum Decision 27A04-1412-CR-579 | October 6, 2015   Page 6 of 12
       without her consent, and (c) the confinement resulted in serious bodily injury to

       Denton. Final Instruction #5, Ex. Vol. at 104. The jury was further instructed to

       use the following definition: “The term ‘confine’ is defined by law as meaning

       to substantially interfere with the liberty of a person.” Final Instruction #16, Ex.

       Vol. at 109; see Ind. Code § 35-42-3-1. Cox admits Denton “may have been

       momentarily detained,” but argues that her ability to escape several times and

       decision to sleep in her car outside her house when she was free to leave

       demonstrates that her liberty was not substantially interfered with by Cox.

       Appellant’s Br. at 8. We disagree.


[14]   Here, there was sufficient evidence to find that Cox, beyond the detainment

       that occurred when Denton was strangled, substantially interfered with her

       liberty on several occasions. Cox concedes that during the night in question, he

       “pinned Denton to the bed,” “grabbed her and forced her into a reclining chair”

       as Denton headed to the door, and “straddled her between the car seats” after

       he stopped her car. Id.at 5. “The fact that the time involved was brief is not the

       determinative factor of ‘substantial.’ While time may be a factor, it is the type

       or nature of interference that is most significant.” Sammons v. State, 397 N.E.2d

       289, 294 (Ind. Ct. App. 1979). Based on Denton’s testimony and Cox’s own

       admissions in his brief, Denton tried to flee from Cox multiple times before she

       was successful in escaping. Therefore, we conclude that there was sufficient

       evidence for a reasonable trier of fact to find that Cox confined and

       substantially interfered with Denton’s liberty.




       Court of Appeals of Indiana | Memorandum Decision 27A04-1412-CR-579 | October 6, 2015   Page 7 of 12
                                      II.      Double Jeopardy
[15]   Article 1, Section 14 of the Indiana Constitution states that “No person shall be

       put in jeopardy twice for the same offense.” Our Supreme Court has held that

       “Indiana’s Double Jeopardy Clause was intended to prevent the State from

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

       transgression.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). To

       determine whether multiple convictions are permissible, we must use a two-part

       test which considers the statutory elements and the actual evidence. Id. Cox

       contends that his convictions of criminal confinement as a Class B felony,

       battery as a Class C felony, and strangulation as a Class D felony violated the

       actual evidence test. His double jeopardy claim can be broken down into two

       separate parts: 1) that his criminal confinement and battery charges were

       improperly enhanced by the same serious bodily injury; and 2) that the same

       facts and evidence were used to support his convictions for criminal

       confinement and strangulation. We address each in turn.


[16]   When such a claim is presented to a reviewing court, “the actual evidence

       presented at trial is examined to determine whether each challenged offense

       was established by separate and distinct facts.” Id. at 53. Moreover, the court

       may consider the charging information, jury instructions, and arguments of

       counsel when making its determination. Lee v. State, 892 N.E.2d 1231, 1234

       (Ind. 2008). “Multiple convictions do not violate Indiana’s Double Jeopardy

       Clause if they logically could have been based on the same facts, but in light of

       the evidence, the instructions, the charges, and the argument of counsel, there is

       Court of Appeals of Indiana | Memorandum Decision 27A04-1412-CR-579 | October 6, 2015   Page 8 of 12
       no reasonable possibility that the jury actually used exactly the same set of facts

       to establish both convictions.” Id. at 1232.


[17]   At issue in the actual evidence analysis of the criminal confinement and battery

       convictions is whether there is a reasonable possibility that the evidence used by

       the fact-finder to establish the serious bodily injury element for the criminal

       confinement conviction may also have been used to establish the serious bodily

       injury element for the battery conviction. Hines v. State, 30 N.E.3d 1216, 1222

       (Ind. 2015). Specifically, we must consider whether there is a reasonable

       possibility that the jury used Denton’s loss of consciousness as the serious

       bodily injury for each of the above mentioned convictions.


[18]   “Although there was evidence presented at trial that could have supported” a

       finding that serious bodily injury occurred during both the confinement offense

       and the battery offense, “the inquiry does not end there.” Id. “Indiana’s

       Double Jeopardy Clause requires charges to be prosecuted ‘in a manner that

       insures that multiple guilty verdicts are not based on the same evidentiary

       facts.’” Lee, 892 N.E.2d at 1235 (quoting Richardson, 717 N.E.2d at 53 n.46).

       “If there is a reasonable possibility that the jury mixed the evidence from”

       Denton’s loss of consciousness during the criminal confinement offense to

       establish serious bodily injury for the battery offense, both enhanced

       convictions cannot stand because the facts establishing serious bodily injury for

       criminal confinement would also establish serious bodily injury for battery.

       Hines, 30 N.E.3d at 1222. “‘Reasonable possibility’ turns on a practical



       Court of Appeals of Indiana | Memorandum Decision 27A04-1412-CR-579 | October 6, 2015   Page 9 of 12
       assessment of whether the jury may have latched on to exactly the same facts for

       both convictions.” Lee, 892 N.E.2d at 1236 (emphasis added).


[19]   In this case, the State included both unconsciousness and extreme pain when it

       charged Cox with criminal confinement and battery. Additionally, the final

       jury instructions listed unconsciousness and extreme pain as the serious bodily

       injury for both the criminal confinement offense and the battery offense without

       clarifying to the jury that the same injury could not be used for each of the two

       offenses. The instructions left open the reasonable possibility that the jury

       could use the same evidence to establish serious bodily injury for both criminal

       confinement and battery. Hines, 30 N.E.3d at 1223.


[20]   During closing argument, the State clearly tied unconsciousness to the criminal

       confinement offense:


               We also talked about in jury selection how unconsciousness within
               itself under the law qualifies as serious bodily injury, so if you
               believe Terri that she says ‘And then I blacked out, and then I
               woke up in front of the bed.’ She showed you using the exhibits
               where she woke up then serious bodily injury has been satisfied.


       Tr. at 454. The State proceeded to focus on the facts surrounding Denton’s loss

       of consciousness when it discussed the battery resulting in serious bodily injury:


               He would keep grabbing her and if she screamed he would put his
               hand over her face to stifle her screaming. That’s touching
               someone in a rude, insolent or angry manner, and it resulted in
               serious bodily injury. The passing out on the floor or even extreme
               pain under, under the definition. Terri got up there and told you


       Court of Appeals of Indiana | Memorandum Decision 27A04-1412-CR-579 | October 6, 2015   Page 10 of 12
               she felt like she was going to explode. She’s gasping for air. She
               couldn’t get air and was going to explode.


        Id. at 455. It is possible that the jury followed the State’s argument and tied

       the unconsciousness to the criminal confinement offense and the extreme pain

       to the battery offense; however, without specifying for the jury what evidence

       supported what charge and failing to instruct them that the same evidence could

       not be used twice, it is also reasonably possible that the jury established the

       serious bodily injury element for both the criminal confinement conviction and

       the battery conviction with the same piece of evidence, namely the loss of

       consciousness. The State failed to draw a line where the serious bodily injury

       from the confinement ended and the serious bodily injury from the battery

       began. Confusion was added by the fact that the charging information and jury

       instructions listed both loss of consciousness and extreme pain as the serious

       bodily injuries for the battery and criminal confinement charges.


[21]   Based on the charging information, the jury instructions, and the arguments of

       counsel, we find a reasonable possibility that the evidence of the loss of

       consciousness was used by the jury to establish the serious bodily injury

       element of battery and criminal confinement. Consequently, under the actual

       evidence test, Cox was twice punished for the same injury in violation of Article

       1, Section 14 of the Indiana Constitution. Moreover, the other injuries Cox

       inflicted upon Denton were used to support the domestic battery conviction.

       Accordingly, we remand to the trial court with instructions to vacate the Class

       C felony battery conviction and sentence.

       Court of Appeals of Indiana | Memorandum Decision 27A04-1412-CR-579 | October 6, 2015   Page 11 of 12
[22]   Next, Cox contends that the same evidence was used to convict him of

       strangulation and confinement. We disagree. The conflict between Denton

       and Cox began in the master bathroom when he shoved her into the window.

       Denton testified that Cox then threw her onto the bathroom floor, straddled

       her, and tried to restrain her arms with his legs. This evidence supports the

       finding that Cox confined Denton. However, Cox then took the additional

       action of placing his hands around her neck and covering her nose and mouth.

       This resulted in Denton losing consciousness. Combined, this evidence

       supported Cox’s conviction for Class B felony criminal confinement. In

       addition to the incident in the master bathroom, Denton testified that Cox

       placed his hands around her throat on multiple occasions that night which

       impeded her circulation and ability to breath. This separate evidence supports

       Cox’s conviction of strangulation as a Class D felony.


[23]   The actual evidence used to convict Cox of criminal confinement was different

       from the evidence required to convict him of strangulation. Cox’s convictions

       for criminal confinement and strangulation did not violate the prohibition

       against double jeopardy. Accordingly, both convictions were proper and

       vacating the battery conviction will not require that Cox be resentenced as the

       battery sentence was ordered to run concurrent with the criminal confinement

       sentence.


[24]   Affirmed in part, reversed in part, and remanded with instructions.


[25]   Najam, J., and Barnes, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 27A04-1412-CR-579 | October 6, 2015   Page 12 of 12
