Court of Appeals of Indiana | Memorandum Decision 18A

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### 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 TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Steven Mynatt, Jr. , Appellant

- Defendant,

v.


### State of Indiana , Appellee

- Plaintiff December 14, 2018 Court of Appeals Ca se No. 18A

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- 1600 Appe al from the Marion Superior Court The Honorable Christina R. Klineman, Judge Trial Co urt Cause No. 49G17

- 1711

- F6

- 45804

Vaidik , Chief Judge
.Court of Appeals of Indiana | Memorandum Decision 18A

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# 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 inti midation 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 d omestic

- 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 cigaret te from their neighbor, Linda Rola nd. 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 sh e would be back in a minute. Id. As soon as A.S. returned to the trailer , Mynatt accused her of “trying to be sneaky a nd talking to somebody else.” Id. An argument followed and , at some point, A.S. decided she wan ted to leave. The trailer had only one door, and as A.S. tried to leave,Court of Appeals of Indiana | Memorandum Decision 18A

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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 t o 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 wha t was going on. Linda tried talk ing Mynat t “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 trail er. 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 Myn att 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 d own 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 betwee n Mynatt and the wall , and they both went to sleep. Late r, A.S. said that she slept there that night be cause she “was worried that if [she] tried t o 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 theCourt of Appeals of Indiana | Memorandum Decision 18A

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trailer . A.S. opened the trailer door and prete nded 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 I II, 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. I n the State ’s closing argu ment, 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 ar ound 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 ma de

. 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) cou nts ” 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

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# Discussion and Decision

[6] Myna tt 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 Ar ticle 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

esta blish 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 establishe d 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 theCourt of Appeals of Indiana | Memorandum Decision 18A

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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 confi nement and intimidation fail the actual

- evidence test because A.S.’s “ confinement in the trail er was motivated by and was the direct result of threats made by [Mynatt].” Appellant’s Br. p. 12. Mynatt also asserts th at his convictions for confinement and kidnapping fail the actual

- evidence test because the same evidence was u sed to establish both offenses. See i

d. at 14

- 15

. We disagree. The record show s 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 happe ne d initially where Mynatt kept A.S. inside the trailer b y 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. T he 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 grab bed her around the head.”). Considering the charging information and the State’s closing argu ment, Mynatt completed confinement when he used force to keep A.S. inside the trailer without her consent. See Ind. Code § 35

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[11] Next , the kidnapping convic tion was based on what happened af ter A.S. was initiall y confined , when she exited the trailer , got “mo re than a few feet” outside , and then Mynatt grabbed her by h er hair. Tr. p. 22. Once Mynatt had A.S. by her hair, he dragged her from outside the trai ler 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, My natt completed kidnapping when he used force to remove A.S. from outside the trailer to insid e the trailer

. See Ind. Code § 35

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[12] Finally , the intimidation conviction was based on what happened after Mynatt dragged A.S. ba ck inside the trailer, whe n 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 ba ck 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 insid e the trailer. See Ind. Code § 35

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[13] Because the record shows that e ach of Mynatt’s three conviction s wa s supported by separate and distinct evidence , we conclude that his convictions for criminal confinement, kidnapping, and intimidation do not fa il 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 C ode section
35

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- 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 “ conv ictions 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 ass erts 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 o ut, “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 con finement convictions

— is misplaced.