Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2261 | August 3, 2016 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.

ATTORNEY FOR APPELLANT

Patricia Caress McMath

Marion County Public 

Defender Agency

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Tyler G. Banks

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Calvin Griffin,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 3, 2016

Court of Appeals Case No.

49A02-1512-CR-2261

Appeal from the Marion Superior 

Court 17

The Honorable Christina R. 

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 
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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 
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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 
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(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 
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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. 
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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 
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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
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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.