Co urt of Appeals of Indiana | Memo randum Decision 49A04-140 9 -CR-40 9 | Ma rch 19, 2015 Page 1 of 9 

### MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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.

A TTORNEY FOR A PPELLANT Michael R. Fisher Marion County Public Defender Agency Indianapolis, Indiana A TTORNEYS FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Arturo Estrada-Medina, A

ppellan t -Defendant,

v. 

### State of Indiana, A

ppelle e -Plaintiff March 19, 2015 Court of Appeals Case No. 49A04-1409-CR-409 Appeal from the Marion Superior Court Criminal Division 4 Honorable Lisa Borges, Judge Cause No. 49G04-1305-FB-028012



### Friedlander, Judge.Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-409 | March 19, 2015 Page 2 of 9 [1] Arturo Estrada-Medina appeals following his convictions of class B felony Rape 1 and class D felony Criminal Confinement. 2 He raises two issues on appeal, one of which we find dispositiv e: Do his convictions for rape and criminal confinement violate Indiana’ s constitutional double jeopardy protections?

[2] We reverse and remand with instructions.

[3] In the early evening hour s of September 24, 2006, then-sevente en-year-old D.W. went to the Berkley Commons apar tments in Indianapolis to visit her boyfriend, Derek Reynolds. When she arrived, Reynolds was with his friend “Red” and a Hispanic man D.W. did not know. The group hung out in a park by the apartment complex while Reynolds , Red, and the Hispanic man drank beer. At some point, Derek suggested that they all go to the apartments’ laundry facility, where D.W. had previous ly hung out with Reynolds on several occasions. D.W. led the way to the base ment of the building where the laundry room was located. When she got in to the room and turned around, she discovered that she was alone with the Hi spanic man. D.W. tried to leave, but

1 Ind. Code Ann. § 35-42-4-1 (West, We stlaw 2013). Effective July 1, 2014, this offense has been reclassified as a Level 3 felony. See I.C. § 35-42-4-1 (West, Westlaw current with all legislation of the 2015 First Regular Session of the 119th General Assembly effective through February 23, 2015). Because the offense in this case was committed prior to that date, it retains it s former classification as a class B felony.
2 I.C. § 35-42-3-3 (West, Westlaw 2013). Effective July 1, 2014, the criminal confinement statute has been revised and the offense has been reclassified as a Level 6 felony, which may be elevated to a Level 5, 3, or 2 felony under certain circumstances. See I.C. § 35-42-3-3 (West, current with all legislation of the 2015 First Regular Session of the 119th General Assembly effective through February 23, 2015). Because the offense in this case was committed prior to th at date, it retains its former classification as a class D felony.Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-409 | March 19, 2015 Page 3 of 9 the man blocked her way and grabbed he r by the throat and squeezed. D.W. was scared and could not breathe. D.W. then ended up on the floor with the man on his knees between her legs. D.W. was crying and begging for him to let her go, and the man was telling her in Sp anish to shut up. D.W. removed her pants and underwear because she “knew [s he] wasn’t leaving the laundry room unless [she] did something.” Transcript at 130. The man then undressed and penetrated D.W.’s vagina with his penis while she continued to cry. After he ejaculated inside D.W.’s vagina, D.W. then grabbed her clothes and left the laundry room.

[4] D.W. put her clothes back on outside, and almost immediately thereafter ran into Reynolds and Red. D.W. told Reyn olds that she had been raped, and he told her not to call the police because ther e was an active warrant for his arrest. Shortly thereafter, a friend of D.W.’s contacted Deborah Schonfeld, who ran a program for at-risk youth in which D.W. participated. Schonfeld sent her husband to pick up D.W. and bring her back to their house. Schonfeld spent time talking to D.W., who was shakin g, extremely distressed, and having difficulty communicating. Eventually, D.W. agreed to report the incident. She was then interviewed by police and taken to the hospital, where a rape kit was completed. In February 2007, a DNA profile was developed from sperm fractions found during the rape kit ex am and the profile was uploaded into Indiana’s DNA database. No match was found at that time, and no arrests were made.Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-409 | March 19, 2015 Page 4 of 9 [5] Six years later, in April 2013, Indianapol is Metropolitan Police Detective David Miller was notified that there was a DNA match in the database with EstradaMedina’s profile, which had been recent ly uploaded due to a criminal trespass conviction. Detective Miller contacted D. W., who stated emphatically that she wished to pursue charges. Subseque ntly conducted DNA testing confirmed that Estrada-Medina was the source of the DNA found during D.W.’s rape kit.

[6] The State charged Estrada-Medina with cl ass B felony rape, two counts of class D felony criminal confinement, and clas s D felony strangulation. A two-day jury trial commenced on July 14, 2014, at the conclusion of which EstradaMedina was found guilty of rape and one count of criminal confinement and acquitted of the remaining charges. Estr ada-Medina now appeals.

[7] Estrada-Medina argues that his convicti ons for rape and criminal confinement violate Indiana’s constitutional doub le jeopardy protections. The double jeopardy clause found in article 1, sectio n 14 of the Indiana Constitution “was intended to prevent the state from bein g able to proceed against a person twice for the same criminal transgression.” Richardson v. State , 717 N.E.2d 32, 49 (Ind. 1999). Two or more offenses are the “same cr iminal transgression” for the purposes of the Indiana double jeopardy clause if, “with respect to either the statutory elements of the challenged cr imes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of anot her challenged offense.” Id.Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-409 | March 19, 2015 Page 5 of 9 [8] In this case, Estrada-Medina challen ges his convictions under the actualevidence test, which “prohibits multiple convictions if there is ‘a reasonable possibility that the eviden tiary facts used by the fa ct-finder to establish the essential elements of one offense may al so have been used to establish the essential elements of a seco nd challenged offense.’” Davis v. State , 770 N.E.2d 319, 323 (Ind. 2002) (quoting Richardson v. State , 717 N.E.2d at 53). Establishing a “‘reasonable possibility’ th at the jury used the same facts to reach two convictions requires substantially more than a logical possibility.” Lee v. State , 892 N.E.2d 1231, 1236 (I nd. 2008). Instead, the ex istence of a reasonable possibility “turns on a practical asse ssment of whether the jury may have latched on to exactly the same facts for both convictions.” Id. In applying this test, we seek “to identify the essential el ements of each of the challenged crimes and to evaluate the evidence from the jury’s perspective, considering where relevant the jury instructions, argument of counsel, and other factors that may have guided the jury’s determination.” Wright v. State , 950 N.E.2d 365, 369 (Ind. Ct. App. 2011).

[9] On appeal, Estrada-Medina argues that his convictions violate double jeopardy principles because there is a reasonable possibility that the jury relied on the same conduct to support the criminal co nfinement conviction and to establish the force element of the rape conviction. “In addition to the instances covered by Richardson , ‘we have long adhered to a series of rules of statutory construction and common law that are often described as double jeopardy, but are not governed by the co nstitutional test set fo rth in Richardson.’” Guyton v.Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-409 | March 19, 2015 Page 6 of 9 State , 771 N.E.2d 1141, 1143 (Ind. 2002) (quoting Pierce v. State , 761 N.E.2d 826, 830 (Ind. 2002)). One of thes e rules prohibits “[c]onviction and punishment for a crime which consists of the very same act as an element of another crime for which the defendant has been convicted and punished.” Id. (quoting Richardson v. State , 717 N.E.2d at 56 (Sullivan, J., concurring)). Thus, if we determine that Estrada-Medina’s cr iminal confinement conviction is based on the same act that establishes the fo rce element of his rape conviction, a double jeopardy violat ion has occurred.

[10] “[A] person who ‘commits rape or criminal deviate conduct necessarily confines the victim at leas t long enough to complete such a forcible crime.’” Jacobs v. State , 2 N.E.3d 116, 122-23 (Ind. Ct. App. 2014) (quoting Gates v. State , 759 N.E.2d 631, 632 (Ind. 2001)), summarily aff’d in relevant part , 22 N.E.3d 1286 (Ind. 2015). For criminal confinem ent to constitute a separate crime, there must be proof of force to effectuate the confinement that goes beyond that necessary to effectuate the rape. See Ryle v. State , 549 N.E.2d 81, 85 n.7 (Ind. Ct. App. 1990), trans. denied . For example, in Sallee v. State , rape and criminal confinement convictions did not violate double jeopardy protections when, as the victim gave the defendant and his co -defendant a ride, the defendant pulled her into the backseat and would not let her out of the car despite her pleas, and the two defendants then took her to thei r house, where they repeatedly raped her. 777 N.E.2d 1204 (Ind. Ct. App. 2002), trans. denied

.

[11] On appeal, the State argues that the ra pe and criminal confinement convictions are supported by separate acts of force. Specifically, the State argues that theCourt of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-409 | March 19, 2015 Page 7 of 9 criminal confinement was accomplished when Estrada-Medina made D.W. get on the ground, and “[t]he confinement nece ssary to effectuate the rape . . . was [Estrada-Medina’s] act of physically to uching D.W.’s body—by lying on her or next to her—in order to penetrat e his penis into her vagina.” Appellee’s Brief at 10.

[12] Assuming arguendo that a factual distinction this fine could support separate convictions for rape and criminal confin ement, we note that such distinction was not argued to the jury. The char ging information presented to the jury alleged that Estrada-Medina committed rape by knowingly or intentionally having sexual intercourse with D.W., a member of the opposite sex, when D.W. was compelled by force or imminent threat of force. See I.C. § 35-42-4-1. The charging information for the re levant criminal confinement charge provided that Estrada-Medina committed the offense by “knowingly confin[ing] [D.W.] without the consent of [D.W.], by making [D.W.] get on the ground.” Appellant’s Appendix at 24; see also I.C. § 35-42-3-3 (West, Westlaw 2013) (providing that a person who “confi nes another person without the other person’s consent” commi ts class D felony cr iminal confinement). 3 Thus,

3 The criminal confinement statute applicable at the ti me of these offenses provided that a defendant may commit class D felony criminal confinement in two distinct ways: either by “confin[ing] another person without the other person’s consent” or by “remov[ing] another person, by fraud, enticement, force, or threat of force, from one (1) place to another”. I.C. § 35-42-3-3 (West, Westlaw 2013); see also State v. Greene , 16 N.E.3d 416, 419-20 (Ind. 2014) (explaining that under the pr eviously applicable statute, “[t]wo distinct types of criminal confinement are encompassed: confinement by non-consensual restraint and confinement by forcible removal”). In this case, Estrada-Medina was charged with two counts of criminal confinement. In Count II, he was charged with criminal confinement by forcible removal for dragging D.W. into the laundry room. In closing arguments, the State conceded that no evidence had been presented to support Count II and that the jury should acquit Estrada- Medina on that count, which it did. In Count III, Es trada-Medina wasCourt of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-409 | March 19, 2015 Page 8 of 9 although the charging information fo r criminal confinement specified the precise act supporting the charge, the charging inform ation for rape contained no similar specificity. In stead, it was in substance merely a recitation of the relevant language of the rape statute. The jury instructions contained no specific assertions as to which acts were alleged to support the force element of the rape and which acts were alleged to support the criminal confinement charge. In closing arguments, the Stat e argued that Estrada-Medina committed criminal confinement by forcing D.W. to get on the ground, but it made no attempt to differentiate the force su pporting the criminal confinement conviction from the force us ed to accomplish the rape. Indeed, the State argued to the jury that “[h]e puts her on the grou nd and then he forces her to have sex. That’s rape.” Transcript at 325. This may well have been construed by the jury as an invitation to rely on precisely the same act establis hing the criminal confinement conviction to establish the force element of rape. Although we note that D.W. testified to other acts that could, at least theo retically, have been relied upon to establish the force element of rape—e .g., that Estrada-Medina blocked her exit from the laundry ro om and grabbed her by the throat and

charged with criminal confinement by non-consensual restraint for making D.W. get on the ground, and he was convicted on this charge. We no te, however, that with respect to Cou nt III, the jury was instructed on the elements of criminal confinement by forcib le removal, not non-consensual restraint. See Appellant’s Appendix at 154 (instructing the jury that to support a co nviction for criminal confinement as charged in Count III, the State must prove that Estrada-Medina “rem oved [D.W.] by force or threat of force from one place to another”). Because we reverse with instruct ions to vacate Estrada-Medina’s criminal confinement conviction, we need not address any potential problems arising from this inconsistency. Regardless of whether Estrada-Medina was convicted of criminal confinement based on non-consensual restraint or forcible removal, the evidence relied upon to support the offense was the same—tha t is, that Estrada-Medina made D.W. get on the ground.Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-409 | March 19, 2015 Page 9 of 9 squeezed—the State did not present the evidence in a manner that eliminated the possibility that the jury would rely on the same evidence to establish both the criminal confinement and the force el ement of the rape. In other words, there is a reasonable poss ibility that the jury conv icted Estrada-Medina of criminal confinement based on the very sa me act it relied up on to establish the force element of rape. Accordingly, the convictions violate double jeopardy protections, and we therefore remand with instructions to vacate the criminal confinement conviction. Because Estrad a-Medina’s convictions were ordered to be served concu rrently, his aggregate sent ence will not change.

[13] Judgment reversed and rema nded with instructions.
Kirsch, J., and Crone, J., concur.