      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                FILED
      this Memorandum Decision shall not be                             Aug 03 2016, 8:24 am

      regarded as precedent or cited before any                             CLERK
      court except for the purpose of establishing                      Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Patricia Caress McMath                                   Gregory F. Zoeller
      Marion County Public                                     Attorney General of Indiana
      Defender Agency                                          Tyler G. Banks
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Calvin Griffin,                                          August 3, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1512-CR-2261
              v.                                               Appeal from the Marion Superior
                                                               Court 17
      State of Indiana,                                        The Honorable Christina R.
      Appellee-Plaintiff.                                      Klineman, Judge
                                                               Trial Court Cause No.
                                                               49G17-1510-F5-35537



      Mathias, Judge.


[1]   Calvin Griffin (“Griffin”) was convicted in Marion Superior Court of Level 5

      felony criminal confinement resulting in bodily injury and Class A


      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2261 | August 3, 2016     Page 1 of 9
      misdemeanor battery resulting in bodily injury. Griffin appeals and claims that

      his convictions constitute impermissible double jeopardy. Concluding that

      Griffin’s convictions for criminal confinement and battery are based on

      different evidentiary facts but that both convictions were improperly elevated

      based on the same bodily injury, we vacate Griffin’s conviction for Class A

      misdemeanor battery resulting in bodily injury and reduce his battery

      conviction to Class B misdemeanor battery.


                                    Facts and Procedural History

[2]   At the time relevant to this appeal, Griffin’s girlfriend, T.M., had recently

      ended her relationship with Griffin. On the morning of October 6, 2015, T.M.

      left her home, where she lived with her mother, and began to drive to work. As

      she was driving in her neighborhood, a man jumped out in front of her car.

      When she realized the man was Griffin, she began to drive back home.

      However, before T.M. arrived, Griffin opened the back door of the car and

      entered the back seat. T.M. jumped out of the car and yelled for help. She ran

      to the door of her home and banged on the door to wake her mother.

[3]   Before T.M.’s mother could come to the door, Griffin, who had since gotten

      out of the car, came up behind T.M., grabbed her, and put his hand over her

      mouth. He told T.M. that he would “f**king kill [her] if [she] screamed.” Tr. p.

      21. Griffin twisted T.M.’s neck as he confined her, which caused her pain, as

      did his action of holding her tightly around the waist. Griffin pulled T.M.

      toward the end of the garage, then grabbed her arm and pushed her back

      toward her car, telling her to “run.” Tr. p. 23. T.M. then saw another man
      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2261 | August 3, 2016   Page 2 of 9
      outside, broke free of Griffin, and ran to this man for help. Griffin then fled the

      scene. Griffin was later apprehended and told the police where to find T.M.’s

      car keys.


[4]   On October 8, 2015, the State charged Griffin with Level 5 felony criminal

      confinement resulting in bodily injury, Level 5 felony kidnapping resulting in

      bodily injury, Level 6 felony intimidation, and Class A misdemeanor battery

      resulting in bodily injury. A bench trial was held on November 17, 2015, at the

      conclusion of which the trial court found Griffin guilty as charged. At a

      sentencing hearing held on December 1, 2015, the trial court vacated Griffin’s

      conviction for kidnapping on double jeopardy grounds. The trial court then

      sentenced Griffin to concurrent sentences of three years on the confinement and

      intimidation charges, to be served as two years on work release and one year on

      probation. The trial court also sentenced Griffin to a concurrent term of one

      year to be served on work release on the battery charge. Griffin now appeals.


                                        Discussion and Decision

[5]   Griffin argues on appeal that his convictions for both confinement and battery

      are based on the same evidence and therefore constitute double jeopardy under

      the Richardson actual evidence test.


[6]   Article 1, Section 14 of the Indiana Constitution provides, “No person shall be

      put in jeopardy twice for the same offense.” We analyze alleged violations of

      Indiana’s Double Jeopardy Clause pursuant to our supreme court’s opinion in

      Richardson v. State, 717 N.E.2d 32 (Ind. 1999). In Richardson, our supreme court


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      held that two or more offenses are the “same offense” in violation of Article 1,

      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.” 717 N.E.2d at 49 (emphasis in original). Under

      the “actual evidence” test, 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 all of the

      essential elements of a second challenged offense. Id. at 53.


[7]   Application of this test requires the court to identify the essential elements of

      each of the challenged crimes and to evaluate the evidence from the perspective

      of the trier of fact. Singh v. State, 40 N.E.3d 981, 986 (Ind. Ct. App. 2015), trans.

      denied (citing Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008)). We therefore

      consider the essential elements of the offenses, the charging information, the

      jury instructions, the evidence, and the arguments of counsel. Id. The term

      “reasonable possibility” turns on a practical assessment of whether the trier of

      fact may have latched on to exactly the same facts for both convictions. Id. On

      appeal, we review the trial court’s legal conclusion regarding whether

      convictions and sentences violate double jeopardy principles de novo. Id. (citing

      Sloan v. State, 947 N.E.2d 917, 920 (Ind. 2011)).


[8]   We further note that the present case was tried before the trial court, not a jury.

      In the absence of any indication to the contrary, we presume that the trial court

      knows and follows the applicable law. State v. Glasscock, 759 N.E.2d 1170, 1174

      Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2261 | August 3, 2016   Page 4 of 9
       (Ind. Ct. App. 2001) (citing Moran v. State, 622 N.E.2d 157, 159 (Ind. 1993)).

       This includes the law of double jeopardy. See Alexander v. State, 768 N.E.2d 971,

       977-78 (Ind. Ct. App. 2002), aff’d on reh’g, 772 N.E.2d 476, trans. denied

       (concluding that presumption that trial court followed applicable double

       jeopardy law was rebutted, where, among other things, trial court’s statements

       indicated it had relied on the same evidence to sustain two convictions).


[9]    Here, the State charged Griffin with battery as knowingly touching T.M. in a

       rude, insolent, or angry manner resulting in pain in her mouth, neck, or ribcage.

       Appellant’s App. p. 22; see also Ind. Code § 35-42-2-1(b), (c) (“[A] person who

       knowingly or intentionally . . . touches another person in a rude, insolent, or

       angry manner . . . commits battery,” which is a “Class A misdemeanor if it

       results in bodily injury to any another person.”).


[10]   The State charged Griffin with criminal confinement as knowingly confining

       T.M. without her consent, resulting in pain to her ribcage. Appellant’s App. p.

       21; see also Ind. Code § 35-42-3-3(a), (b)(1)(C) (“A person who knowingly or

       intentionally confines another person without the other person’s consent

       commits criminal confinement,” which is a Level 5 felony if “it results in bodily

       injury to a person other than the confining person.”).

[11]   To support these charges, the State presented evidence that Griffin came up

       from behind T.M., grabbed her around the waist, and placed his hand over her

       mouth, twisting her neck in the process and causing her pain. See Tr. pp. 21-22.

       T.M. was unable to free herself from Griffin. The State also presented evidence


       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2261 | August 3, 2016   Page 5 of 9
       that, after Griffin had grabbed T.M. from behind, he then grabbed her arm and

       forcibly pushed her toward her car. Either of these acts, the initial grabbing

       from behind or the grabbing of the arm and pushing, could have supported

       either charge, battery or confinement.

[12]   However, it is not entirely clear from the charging information or the

       prosecuting attorney’s closing argument which evidence supported which

       charge. The charging information alleged that both the confinement and battery

       charges resulted in the same pain to T.M.’s ribcage but alleged that alternatively

       the battery also caused pain to her mouth or neck. Also, the State made little

       effort at trial to distinguish which acts constituted the battery and which acts

       constituted the confinement. See Tr. p. 53-55.1


[13]   Had this case been tried to a jury, we might conclude it was a reasonable

       possibility that the jury used the same evidentiary facts to establish the essential

       elements of both offenses. See Hines v. State, 30 N.E.3d 1216,1225 (Ind. 2015)

       (concluding it was a reasonable possibility that the same evidence used by the

       jury to establish the essential elements of battery was also included among the

       evidence used to establish the essential elements of criminal confinement).

[14]   As noted above, however, this case was tried before the bench, and we presume

       that trial courts know and follow the applicable law. Glasscock, 759 N.E.2d at




       1
        The prosecuting attorney attempted to distinguish the pain caused by the battery and the pain caused by the
       confinement but never actually explained which act supported which charge. Tr. pp. 53-55.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2261 | August 3, 2016            Page 6 of 9
       1174. Here, the evidence that best supports the charge of criminal confinement

       is Griffin’s act of grabbing T.M. from behind and telling her not to scream, as

       T.M. was unable to free herself from Griffin. See Tr. p. 22 (in response to

       question, “once he had grabbed you and he told you he was going to kill you if

       you screamed, w[ere] you able to get away from him at that point?” victim

       answered, “No.”). The evidence that Griffin grabbed the victim’s arm and

       pushed her toward her car supports the charge that Griffin touched her in a

       rude, insolent, or angry manner. We therefore reject Griffin’s argument to the

       extent that he claims his convictions for both battery and criminal confinement

       were based on the same evidence. Separate acts support each charge, and we

       will not presume that the trial court based its findings on the same evidence.

[15]   However, Griffin also argues that his convictions for criminal confinement and

       battery constitute double jeopardy because both convictions were elevated

       based on the same evidence of bodily injury. We agree. As noted above, the

       State alleged that the bodily injury resulting from the battery was pain in T.M.’s

       mouth, neck, or ribcage; the State alleged that the bodily injury resulting from

       the confinement was pain to T.M.’s ribcage. See Ind. Code § 35-31.5-2-29

       (defining bodily injury as “any impairment of physical condition, including

       physical pain.”); Bailey v. State, 979 N.E.2d 133, 135-36 (Ind. 2012) (holding

       that any degree of physical pain may constitute bodily injury).

[16]   At trial, T.M. testified that she suffered from physical pain, but only as a result

       of Griffin grabbing her from behind and twisting her neck, which she explained

       caused a cut on her lip and a bruise on her waist. Tr. p. 22. Although the State

       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2261 | August 3, 2016   Page 7 of 9
       argued in its closing statement that it was the “pulling that cause[d] the pain

       and the force necessary to cause the bruise” on the victim’s waist (Tr. p. 53),

       T.M. never testified that Griffin pulled her by her waist or that the act of

       pushing her toward her car caused her pain. She instead testified only that

       Griffin’s act of grabbing her from behind caused her pain in her waist and

       mouth. Tr. pp. 22-23.

[17]   Accordingly, we conclude it is a reasonable probability that Griffin’s

       convictions for both battery and criminal confinement were elevated based on

       the same evidence of pain, which was caused when Griffin initially grabbed and

       confined the victim. This constitutes improper double jeopardy. See Zieman v.

       State, 990 N.E.2d 53, 61 (Ind. Ct. App. 2013) (noting that, under rules of

       statutory construction and common law that constitute one aspect of Indiana’s

       double jeopardy jurisprudence, where one conviction is elevated based on the

       same bodily injury that forms the basis for another conviction, the two cannot

       stand) (citing Strong v. State, 870 N.E.2d 442, 443 (Ind. 2007)).


[18]   To remedy this double jeopardy violation, we may reduce either conviction to a

       less serious form of the same offense, if doing so will eliminate the violation.

       Duncan v. State, 23 N.E.3d 805, 818 (Ind. Ct. App. 2014), trans. denied.

       Accordingly, we vacate Griffin’s conviction for Class A misdemeanor battery

       resulting in bodily injury reduce his battery conviction to Class B misdemeanor

       battery. See Ind. Code § 35-42-2-1(b) (defining battery that does not involve

       bodily injury as a Class B misdemeanor). Because Griffin’s sentence for battery



       Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2261 | August 3, 2016   Page 8 of 9
       was ordered to be served concurrently with his sentence for criminal

       confinement, this will result in no sentence reduction for Griffin.

[19]   Affirmed in part and reversed in part.


       Vaidik, C.J., and Barnes, J., concur.




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