Court of Appeals of Indiana | Memorandum Decision 49A02-1508-CR-1157 | April 13, 2016 Page 1 of 8

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.

ATTORNEY FOR APPELLANT

Michael R. Fisher

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Karl Scharnberg

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Arcine Cook,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 13, 2016

Court of Appeals Cause No.

49A02-1508-CR-1157

Appeal from the Marion Superior 

Court

The Honorable Mark D. Stoner, 

Judge

The Honorable Jeffrey Marchal, 

Magistrate

Trial Court Cause No.

49G06-1502-F3-4922

Barnes, Judge.
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Case Summary

[1] Arcine Cook appeals his conviction for Level 3 felony criminal confinement 

with a deadly weapon. We affirm.

Issue

[2] The sole issue before us is whether there is sufficient evidence that Cook 

committed confinement while armed with a deadly weapon.

Facts

[3] Cook was involved in a romantic relationship with Marshelle Lowe in early 

2015. On the night of February 6, 2015, Lowe picked Cook up from his job. 

Lowe drove Cook to an ATM, where he withdrew cash, then the two went to a 

liquor store before going to Lowe’s home in Indianapolis. Cook gave Lowe 

$140 from the ATM as gas money for her driving him to and from work. After 

arriving at Lowe’s home, Cook began drinking heavily; Lowe does not drink. 

Sometime in the early morning hours of February 7, 2015, Cook became

belligerent, as he had in the past when drinking. Lowe then told Cook that she 

sometimes audio recorded him on her cell phone when he got drunk and 

belligerent and she played a prior recording for him.

[4] After hearing this recording, Cook became angrier and began acting as if he was 

going to leave, although he was dependent upon Lowe to drive him places. 

Lowe then activated audio recording on her cell phone again as she got dressed 

and prepared to drive Cook to his residence. After Lowe got her purse and was 

about to go out to her car, Cook grabbed her purse and said, “Well, where my 
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bread at? Give me my bread.” Tr. p. 29. Cook and Lowe then began 

struggling over the purse until Cook, who is considerably larger than Lowe, 

pinned her on the floor on her back while he sat on her stomach. Cook rifled 

through Lowe’s purse. At first Lowe believed Cook was looking for the money 

he had given her earlier in the evening, but when Lowe told Cook the money 

was in her wallet he said, “F*** the money.” Id. at 32. Cook then dug deeper 

into Lowe’s purse and found her licensed handgun, which he knew from 

previous experience Lowe carried in her purse.1 Cook cocked the gun and 

pointed it at Lowe’s chest, then noticed it was unloaded and asked her, “Where 

the shells at?” Id. Lowe falsely told Cook they were upstairs under her bed. 

Cook accused her of lying, put the gun in his back pocket, and continued 

looking through her purse for a magazine clip while he remained on top of her. 

[5] Finally, Cook dumped out the contents of Lowe’s purse, and a magazine clip 

fell onto the floor. Lowe managed to grab the clip before Cook did. Cook and 

Lowe struggled over possession of the clip, each biting the other, until Lowe 

told Cook that she might be pregnant. At that point, Cook got up off of Lowe. 

Lowe still had the clip, but Cook pointed the gun at Lowe’s back while he held 

her arms and forced her into a bathroom. Lowe was still holding the clip, but 

Cook but did not seem to notice this. Cook yelled at Lowe in the bathroom for 

three to five minutes, at one point cocking the gun before realizing again that it 

was unloaded. Then, Cook opened the door to the bathroom and told Lowe to 

 

1 Cook had seen Lowe remove her gun from her purse on at least one prior occasion.
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go get the clip. Lowe threw the clip on the floor without Cook noticing, then 

managed to flee from the home and asked a neighbor to call 911. Cook still had 

Lowe’s gun when she fled. An officer responding to the 911 call found the gun 

under Lowe’s couch, where Cook had told him he put it after claiming to have 

seized it from Lowe when she had pointed it at him.

[6] The State charged Cook with Level 3 felony confinement, Level 3 felony 

strangulation, and Class A misdemeanor battery, and also alleged that he was 

an habitual offender. After a bench trial, Cook was found guilty of all three 

counts; Cook then pled guilty to the habitual offender allegation. The trial 

court entered a judgment of conviction only for Level 3 felony confinement and 

sentenced Cook accordingly. Cook now appeals.

Analysis

[7] Cook’s sole claim is that there is insufficient evidence he possessed a firearm 

while he confined Lowe.2 When reviewing a claim of insufficient evidence to 

support a conviction, we neither reweigh the evidence nor assess the credibility 

of witnesses. Bell v. State, 31 N.E.3d 495, 499 (Ind. 2015). We consider only 

the evidence and reasonable inferences drawn therefrom that support the 

conviction and will affirm if there is probative evidence from which a 

 

2 On appeal, Cook does not deny that he confined Lowe by sitting on top of her; he does contend he was not 

adequately charged with any confinement related to forcing Lowe into the bathroom.
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reasonable fact-finder could have found the defendant guilty beyond a 

reasonable doubt. Id.

[8] A person who knowingly or intentionally confines another person without the 

other person’s consent commits Level 6 criminal confinement. Ind. Code § 35-

42-3-3(a). The offense is elevated to a Level 3 felony if it is committed while the 

defendant is “armed with a deadly weapon.” I.C. § 35-42-3-3(b)(2). By 

statutory definition, a firearm is considered a “deadly weapon” regardless of 

whether it is loaded. I.C. § 35-31.5-2-86(a)(1). There is no requirement that a 

firearm actually be used during a confinement in order to enhance the offense 

for being committed while armed with a deadly weapon. Mallard v. State, 816 

N.E.2d 53, 57 (Ind. Ct. App. 2004), trans. denied. The purpose of enhancing 

punishment for committing a crime while armed with a deadly weapon is that it 

creates an actual heightened risk of harm to the victim of the offense. Gray v. 

State, 903 N.E.2d 940, 944 (Ind. 2009).

[9] Cook contends he was not “armed” with a deadly weapon because he never 

fully gained possession of Lowe’s handgun and merely retrieved it from her 

purse to prevent her from using it against him. This argument is an invitation 

to reweigh the evidence and assess witness credibility, which we cannot do. As 

revealed by Lowe’s testimony and by the cell phone audio recording of the 

incident, the total initial period of Cook’s confinement of Lowe, before he let 

her up and forced her into the bathroom, lasted approximately ten minutes. At 

some point, no later than three to four minutes into the confinement, Cook 

obtained Lowe’s gun; Lowe can be heard on the recording asking Cook why he 
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had her gun, and he responded that it was because she was pushing him. Lowe 

asked Cook to put her gun down, and he did not. A few minutes later, while 

Cook was still on top of Lowe, Lowe asked Cook why he wanted her magazine 

clip and if he was going to kill her. Cook retained possession of the gun and 

pointed it at her while he forced her into the bathroom and while they were in 

the bathroom.3 

[10] Lowe’s testimony and the recording also indicate that Cook specifically wanted 

to locate both the firearm and the ammunition for it. If Cook had merely 

wanted to disarm Lowe, he did so by retrieving the gun from her; there was no 

need to also retrieve the bullets, and certainly no need to cock the gun and point 

it at her. We need not credit Cook’s self-serving statements that he merely took 

the gun from Lowe for self-defense reasons. Furthermore, Cook’s claim that he 

only was looking for the $140 he had given Lowe earlier when he was rifling 

through her purse is contradicted by the recording and Lowe’s testimony. 

Specifically, Cook expressed disinterest in finding the money when Lowe told 

him it was in her wallet and instead continued looking through her purse until 

 

3 As noted, Cook argues in part that the State could not rely upon Cook’s forcing Lowe into the bathroom as 

part of the confinement because it did not specifically allege in the charging information that Cook removed 

Lowe from one place to another. It is true that prior cases have held that the State must specify in a charging 

information whether it is alleging that a defendant non-consensually confined a victim, or whether the 

defendant forcibly removed a victim from one place to another. See Kelly v. State, 535 N.E.2d 140, 142-43 

(Ind. 1989). The current version of the confinement statute, under which Cook was charged and convicted, 

does not differentiate between non-consensual confinement and confinement by removal, as it had in the 

past. Instead, confinement by removal is now located solely in the kidnapping statute, Indiana Code Section 

35-42-3-2. In any event, Cook confined Lowe both by sitting on top of her for approximately ten minutes 

and by confining her in the bathroom for another three to five minutes, completely apart from removing her 

from one room to another.
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he found the gun and then the magazine clip, indicating those items were the 

objects of his search all along. Additionally, it is clear that Cook intimidated 

Lowe by obtaining her gun and pointing it at her, resulting in an actual 

heightened risk of harm to her. There is sufficient evidence that at least part of 

Cook’s continuing confinement of Lowe was accomplished while he was armed 

with a deadly weapon. Cf. Jackson v. State, 657 N.E.2d 131, 134 (Ind. Ct. App. 

1995) (holding there was sufficient evidence defendant committed robbery 

while armed with deadly weapon, even though victim managed to obtain knife 

from defendant before defendant actually took victim’s purse and fled), overruled 

on other grounds by Winegeart v. State, 665 N.E.2d 893 (Ind. 1996).

[11] Cook also suggests that if the State believed he took Lowe’s gun from her, he 

should have been charged with robbery, and that he could not have been 

“armed” with the gun without first committing robbery by taking the gun from 

Lowe. Cook seems to take this as some indication that he did not, in fact, ever 

have possession of the gun. However, it is possible that the acts of a defendant 

may fall under two overlapping statutes, and prosecutors have discretion in 

deciding whether to prosecute and precisely which charges to file against a 

defendant. Kibbey v. State, 733 N.E.2d 991, 996 (Ind. Ct. App. 2000). That the 

prosecutor here decided not to pursue robbery charges against Cook has no 

bearing on whether there was sufficient evidence to convict him of confinement 

while armed with a deadly weapon.
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Conclusion

[12] There is sufficient evidence that Cook committed the crime of Level 3 felony 

criminal confinement while armed with a deadly weapon. We affirm.

[13] Affirmed.

Robb, J., and Altice, J., concur.