MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Dec 14 2018, 10:10 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Michael R. Fisher                                       Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Steven Mynatt, Jr.,                                     December 14, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1600
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Christina R.
Appellee-Plaintiff                                      Klineman, Judge
                                                        Trial Court Cause No.
                                                        49G17-1711-F6-45804



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1600 | December 14, 2018                 Page 1 of 8
                                          Case Summary
[1]   Steven Mynatt Jr. was convicted of criminal confinement, kidnapping,

      intimidation, and domestic battery. On appeal, Mynatt argues that his

      convictions for criminal confinement, kidnapping, and intimidation constitute

      double jeopardy under Indiana’s actual-evidence test. Because the record

      shows that each conviction was established by separate and distinct evidence,

      his convictions do not fail the actual-evidence test. However, Mynatt correctly

      points out that the trial court imposed an illegal sentence for his Class A

      misdemeanor domestic-battery conviction. Therefore, we affirm Mynatt’s

      convictions but remand for the entry of a revised sentencing order.



                            Facts and Procedural History
[2]   In November 2017, Mynatt and his girlfriend, A.S., were living together in

      Mynatt’s trailer. On the evening of November 15, Mynatt asked A.S. to go

      next door to get a cigarette from their neighbor, Linda Roland. While A.S. was

      at Linda’s house, she used Linda’s cellphone to log into Facebook and check on

      a post about A.S.’s children. While A.S. was on Facebook, Mynatt sent her a

      message asking “what [she] was doing, who [she] was talking to and why [she]

      was trying to be sneaky.” Tr. p. 19. A.S. told Mynatt that she “wasn’t trying to

      be sneaky” and that she would be back in a minute. Id. As soon as A.S.

      returned to the trailer, Mynatt accused her of “trying to be sneaky and talking to

      somebody else.” Id. An argument followed and, at some point, A.S. decided

      she wanted to leave. The trailer had only one door, and as A.S. tried to leave,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1600 | December 14, 2018   Page 2 of 8
      Mynatt stopped her. When A.S. tried to leave again, Mynatt “wrapped his

      arms around [her] head,” “broke [her] tooth,” and “busted [her] lip.” Id. at 20.

      After Mynatt wrapped his arms around A.S.’s head, she “fell to the ground”

      and her leg hit a table leg causing the table to “c[o]me crashing down.” Id. at

      20-21.


[3]   At that point, Linda came over to the trailer to see what was going on. Linda

      tried talking Mynatt “out of being angry,” but then he hit A.S. under her eye.

      Id. at 21. While Linda continued trying to talk to Mynatt, A.S. left the trailer.

      A.S. got “more than a few feet” outside the trailer, but Mynatt grabbed her,

      dragged her “by [her] hair” back inside the trailer, and “threw [her] into the

      floor.” Id. at 22. A.S. asked Mynatt to let her leave, but he responded that she

      “wasn’t going nowhere and he would kill [her] before [she] left.” Id. at 23.

      While she was on the floor, A.S. heard Mynatt tell Linda that “he was going to

      zip tie [A.S.’s] hands and feet and duct tape [her] mouth and they would find

      [her] body” in the trailer the next morning. Id. Then Linda left, leaving Mynatt

      and A.S. by themselves in the trailer. A.S. went to lie down on a bench, but

      Mynatt told her to get on the bed. A.S. did as he said and lay down on the bed.

      Mynatt lay down next to her on the outside of the bed so that A.S. was

      positioned between Mynatt and the wall, and they both went to sleep. Later,

      A.S. said that she slept there that night because she “was worried that if [she]

      tried to leave and [Mynatt] woke up, [she] didn’t know what would happen to

      [her].” Id. at 24. The next morning, Mynatt told A.S. to get her stuff and leave,

      but then he changed his mind and told A.S. to put her stuff back inside the


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1600 | December 14, 2018   Page 3 of 8
      trailer. A.S. opened the trailer door and pretended to gather her things, but she

      immediately ran to Linda’s house and used Linda’s roommate’s phone to call

      her mom to come get her. Once she was at her mom’s house, A.S. called the

      police to report what had happened the night before.


[4]   The State charged Mynatt with four counts: Count I, Level 6 felony criminal

      confinement of A.S.; Count II, Level 6 felony kidnapping of A.S. “from outside

      the trailer to inside the trailer”; Count III, Level 6 felony intimidation of A.S. to

      “not leave” the trailer; and Count IV, Class A misdemeanor domestic battery of

      A.S. Appellant’s App. Vol. II pp. 18-19. A bench trial was held in March

      2018. In the State’s closing argument, the prosecutor addressed the four

      charges as follows:


              [A.S.] testified that when she was in the trailer with [Mynatt], it
              was just the two (2) of them that were in there . . . She could not
              leave. There was one (1) exit to get out. [Mynatt] was standing
              in the way, and at one (1) point he lunged toward her. She
              turned because she was afraid of him, and he grabbed her around
              the head . . . She stated that he wrapped his arms around her.
              Uhm, she stated that she tried to leave because she was afraid of
              him but he grabbed her by her hair and pulled her back in. Uhm,
              she also stated that there were threats that were made.


      Tr. pp. 66-67. The trial court found A.S. “to be a credible witness” and

      therefore found Mynatt “guilty as to all four (4) counts” and sentenced him to

      two-and-a-half years in the Indiana Department of Correction. Id. at 69.


[5]   Mynatt now appeals.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1600 | December 14, 2018   Page 4 of 8
                                Discussion and Decision
[6]   Mynatt raises two issues on appeal. First, he contends that his convictions for

      criminal confinement, intimidation, and kidnapping violate the Double

      Jeopardy Clause of the Indiana Constitution. He also argues that the trial court

      erred in sentencing him.


                                        I. Double Jeopardy
[7]   Mynatt argues that his convictions for criminal confinement, intimidation, and

      kidnapping constitute double jeopardy under Indiana’s actual-evidence test.

      Whether a defendant’s convictions subjected him to double jeopardy is a

      question of law that we review de novo. Wood v. State, 999 N.E.2d 1054, 1065

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


[8]   Article 1, Section 14 of the Indiana Constitution provides that “[n]o person

      shall be put in jeopardy twice for the same offense.” For purposes of Article 1,

      Section 14, two or more offenses constitute the “same offense” if, with respect

      to either the statutory elements of the challenged crimes or the actual evidence

      used to obtain convictions, 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). Under the actual-evidence test, we

      examine the actual evidence presented at trial to “determine whether each

      challenged offense was established by separate and distinct facts.” Id. at 53. To

      find a double-jeopardy violation under the actual-evidence test “a defendant

      must demonstrate a reasonable possibility that the evidentiary facts used by the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1600 | December 14, 2018   Page 5 of 8
       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.


[9]    Mynatt contends that his convictions for confinement and intimidation fail the

       actual-evidence test because A.S.’s “confinement in the trailer was motivated by

       and was the direct result of threats made by [Mynatt].” Appellant’s Br. p. 12.

       Mynatt also asserts that his convictions for confinement and kidnapping fail the

       actual-evidence test because the same evidence was used to establish both

       offenses. See id. at 14-15. We disagree. The record shows that these three

       convictions were based on a sequence of three separate events: first –

       confinement, second – kidnapping, and third – intimidation.


[10]   The confinement conviction was based on what happened initially where

       Mynatt kept A.S. inside the trailer by physically blocking her when she “tried to

       get towards the door,” “wrap[ing] his arms around [her] head,” and causing her

       to fall to the floor. Tr. p. 20. The State’s closing argument relied upon this

       exact evidence to show confinement. See id. at 67 (“[A.S.] could not leave.

       There was one (1) exit to get out. [Mynatt] was standing in the way, and at one

       (1) point he lunged toward her. She turned because she was afraid of him, and

       he grabbed her around the head.”). Considering the charging information and

       the State’s closing argument, Mynatt completed confinement when he used

       force to keep A.S. inside the trailer without her consent. See Ind. Code § 35-42-

       3-3.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1600 | December 14, 2018   Page 6 of 8
[11]   Next, the kidnapping conviction was based on what happened after A.S. was

       initially confined, when she exited the trailer, got “more than a few feet”

       outside, and then Mynatt grabbed her by her hair. Tr. p. 22. Once Mynatt had

       A.S. by her hair, he dragged her from outside the trailer to inside the trailer. At

       trial, in response to the defense’s motion for an involuntary dismissal, see Ind.

       Trial Rule 41(b), the State asserted that A.S. “did leave” the trailer and then

       Mynatt “grabbed her hair and pulled her back” inside the trailer, Tr. p. 47.

       Reviewing the charging information and the State’s response to the defense’s

       41(b) motion, Mynatt completed kidnapping when he used force to remove

       A.S. from outside the trailer to inside the trailer. See Ind. Code § 35-42-3-2.


[12]   Finally, the intimidation conviction was based on what happened after Mynatt

       dragged A.S. back inside the trailer, when he told her “[t]hat she wasn’t going

       nowhere and he would kill [her] before she left.” Tr. p. 23. Thereafter, A.S.

       stayed inside the trailer and slept there through the night because she “was

       worried that if [she] tried to leave and [Mynatt] woke up, [she] didn’t know

       what would happen to her.” Id. at 24. The State’s closing argument asserted

       that Mynatt made the threat to kill A.S. after he had dragged her back inside the

       trailer. See id. at 67 (“[Mynatt] grabbed [A.S.] by her hair and pulled her back

       in. Uhm, she also stated that there were threats that were made.”). Assessing

       the charging information and the State’s closing argument, Mynatt completed

       intimidation when he told A.S. that he would kill her if she left in order to make

       her stay inside the trailer. See Ind. Code § 35-45-2-1.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1600 | December 14, 2018   Page 7 of 8
[13]   Because the record shows that each of Mynatt’s three convictions was

       supported by separate and distinct evidence, we conclude that his convictions

       for criminal confinement, kidnapping, and intimidation do not fail Indiana’s

       actual-evidence test.1


                                                II. Sentencing
[14]   Mynatt also points out that the sentencing order shows that his sentence for

       Count IV, Class A misdemeanor domestic battery, is 912 days and that this

       sentence exceeds the maximum sentence authorized by Indiana Code section

       35-50-3-2. See Appellant’s Br. p. 5 n.1. Mynatt requests that this Court

       “remand to the trial court to correct the sentencing order to show a one-year

       sentence for [d]omestic [b]attery[.]” Id. at 16. With no dispute from the State,

       we do so.


[15]   Affirmed in part and remanded in part.


       Mathias, J., and Crone, J., concur.




       1
        Mynatt alternatively argues that “convictions for Kidnapping and Criminal Confinement violate the
       Indiana Double Jeopardy Clause because regardless of whether [A.S.] was confined or removed, this was all
       one distinct confinement.” Appellant’s Br. p. 15. He asserts that this case is like Bunch v. State, where we
       held that “one continuous period of confinement” could not be the basis for three separate confinement
       convictions. 937 N.E.2d 839, 848-49 (Ind. Ct. App. 2010), trans. denied. But as the State points out, “Mynatt
       was not convicted of multiple counts of criminal confinement[.]” Appellee’s Br. p. 15. Rather, Mynatt was
       convicted of one count of confinement and one count of kidnapping. As such, Mynatt’s reliance on Bunch—
       which involved only multiple confinement convictions—is misplaced.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1600 | December 14, 2018                 Page 8 of 8
