Court of Appeals of Indiana | Opinion 39A01-1404-CR-162 | February 3, 2015 Page 1 of 8

ATTORNEY FOR APPELLANT

R. Patrick Magrath

Madison, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

William Hackl Brainard

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Dustin McFadden

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

February 3, 2015

Court of Appeals Cause No.

39A01-1404-CR-162

Appeal from the Jefferson Circuit 

Court, The Honorable Darrell M. 

Auxier, Judge

Cause No. 39C01-1308-FB-846

Vaidik, Chief Judge.

Case Summary

[1] Dustin McFadden was convicted of Class B felony criminal confinement and 

Class B misdemeanor battery. The trial court sentenced McFadden to six 

months for battery and fourteen years for criminal confinement. McFadden

now appeals, challenging the sufficiency of evidence underlying his criminal-
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confinement conviction. He also argues that his sentence for criminal 

confinement is inappropriate. Because there is no independent evidence to 

establish confinement beyond the evidence used to establish that McFadden 

committed battery, we conclude that the evidence is insufficient to support 

McFadden’s criminal-confinement conviction. We therefore reverse and 

remand with instructions. 

Facts and Procedural History

[2] In August 2013 McFadden attended a birthday party for his fiancée’s child. 

The party took place at the apartment complex where McFadden lived. John 

Taulbee was also at the apartment complex that day. Taulbee and McFadden 

knew each other; Taulbee had testified against McFadden’s sister in an 

unrelated criminal case. Taulbee was visiting another resident of the apartment 

complex. Tr. p. 126. 

[3] Taulbee was standing outside talking to the resident when Gary Gibson, 

McFadden’s stepfather, approached and hit him in the head three times.1 Id. at 

132. Gibson then grabbed Taulbee’s ponytail and struck him in the face, 

causing Taulbee to fall and hit his head on the pavement. McFadden and a 

third man approached and began pushing, hitting, and kicking Taulbee. Id. at 

136, 139, 265. McFadden also grabbed Taulbee’s hair. Id. at 136, 138, 265. 

 

1 Gibson was McFadden’s co-defendant at trial. 
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The men yelled, “We said we’d get you and we got you,” and called Taulbee a 

“snitch” while they battered him. Id. at 139, 247, 295. 

[4] Taulbee suffered significant injuries and was hospitalized for four days. Id. at 

143. Doctors treated Taulbee for a fractured nose, subdural hematoma, an 

abrasion to the back of his head, and a contusion near his left eye. See id. at 

342-46, 355. Taulbee’s nose required surgery and his injuries compromised his 

vision in his left eye for a period of time. Id. at 143-45. At trial, Taulbee 

testified that the pain he suffered as a result of the battery was greater than a 

past accident in which he lost his thumb in a shear press. Id. at 143 (“[I]’d 

rather have my thumb get cut off again.”). 

[5] The State charged McFadden with Class B felony aggravated battery, two 

counts of Class B felony criminal confinement, and Class C felony battery 

resulting in serious bodily injury. Appellant’s App. p. 81-83 (charging 

informations). A jury found McFadden guilty of one count of Class B felony 

criminal confinement and two counts of Class C felony battery resulting in 

serious bodily injury.2Id. at 245, 247-48. The trial court vacated one of

McFadden’s Class C felony battery convictions to avoid a double-jeopardy 

violation. Still concerned that McFadden’s convictions for Class C felony 

battery and Class B felony criminal confinement violated double jeopardy, the 

trial court reduced McFadden’s remaining battery conviction to a Class B 

 

2 The jury found McFadden guilty of a second count of Class C felony battery resulting in serious bodily 

injury as a lesser-included offense of Class B felony aggravated battery. See Appellant’s App. p. 245. 
Court of Appeals of Indiana | Opinion 39A01-1404-CR-162 | February 3, 2015 Page 4 of 8

misdemeanor. See id. at 251-54. In its Judgment of Conviction, the court also 

expressed concern about McFadden’s criminal-confinement conviction:

Criminal Confinement requires that the victim be removed from one 

place to another. The charging information merely alleges that 

[McFadden] removed the victim, not that the victim was removed 

from one place to another. Furthermore, the Court is skeptical that 

pulling one to the ground and battering them equates to removing a 

victim from one place to another. If such were the case, merely 

pushing someone down would constitute Criminal Confinement, a 

Class D felony. The jury has spoken however and the Court will leave 

it to the Court of Appeals to resolve this issue if it is raised on appeal. 

Id. at 252. 

[6] The trial court sentenced McFadden to a six-month executed sentence for 

battery and a fourteen-year executed sentence for criminal confinement, to run 

concurrently. 

McFadden now appeals.

Discussion and Decision 

[7] McFadden challenges the sufficiency of the evidence underlying his conviction

for Class B felony criminal confinement. He also argues that his fourteen-year 

sentence for criminal confinement is inappropriate. 

[8] When we review the sufficiency of the evidence, we do not reweigh evidence or 

assess witness credibility. Cunningham v. State, 870 N.E.2d 552, 553 (Ind. Ct. 

App. 2007) (citations omitted). We consider only the probative evidence and 
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reasonable inferences that support the trier of fact’s conclusion that the 

defendant is guilty beyond a reasonable doubt. Id. If there is evidence of 

probative value from which a rational trier of fact could infer guilt beyond a 

reasonable doubt, we will affirm the conviction. Id.

[9] At the time McFadden committed the underlying offenses, Indiana’s criminalconfinement statute provided, in relevant part, that:

(a) A person who knowingly or intentionally:

(1) confines another person without the other person’s consent; or

(2) removes another person, by fraud, enticement, force, or threat 

of force, from one (1) place to another;

commits criminal confinement. Except as provided in subsection (b), 

the offense of criminal confinement is a Class D felony.

(b) The offense of criminal confinement defined in subsection (a) is:

* * * * *

(2) a Class B felony if it:

* * * * *

(B) results in serious bodily injury to a person other than the confining 

or removing person . . . .

Ind. Code Ann. § 35-42-3-3 (West 2012). The statute contemplates two types of 

criminal confinement: confinement by non-consensual restraint and 

confinement by forcible removal. See State v. Greene, 16 N.E.3d 416, 419-20 

(Ind. 2014). McFadden was charged with and convicted of confinement by 

forcible removal resulting in serious bodily injury. See Appellant’s App. p. 82.
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[10] McFadden’s sufficiency argument is two-fold. First, he argues that he did not 

forcibly remove Taulbee from one place to another. Second, he argues that 

Taulbee did not suffer serious bodily injury. 

[11] Our Supreme Court addressed what constitutes removal “from one place to 

another” under Section 35-42-3-3 in Brown v. State, 868 N.E.2d 464 (Ind. 2007). 

The word “remove” as used in the statute means “that it is unlawful to cause 

another person to move from a place or location for specified improper 

reasons.” Brown, 868 N.E.2d at 468. The Court has also rejected the argument 

that moving a victim only a few feet is insufficient to sustain a conviction for 

criminal confinement, recognizing that the statute does not provide exceptions 

that depend on how far a person is moved. Cornelius v. State, 508 N.E.2d 548, 

549 (Ind. 1987). Thus, the term “remove” is not defined by the amount of 

distance the victim is moved or whether the victim is moved to a “distinct 

area.” See id. Yet the offense of confinement requires proof of a “substantial 

interference” with a person’s liberty without the person’s consent, and “our 

courts of appeal have held that in order to prove confinement beyond the main 

crime charged, there must be something more than the act necessary to 

effectuate the crime, albeit, rape, theft, escape or battery.” Cunningham, 870 

N.E.2d at 553-54 (citing McDonald v. State, 511 N.E.2d 1066, 1068 (Ind.

1987); Stover v. State, 621 N.E.2d 664, 668 (Ind. Ct. App. 1993); Sammons v. 

State, 397 N.E.2d 289, 294 (Ind. Ct. App. 1979)).

[12] Mindful of these principles, we conclude that the evidence is insufficient to 

support McFadden’s conviction for Class B felony criminal confinement. Our 
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review of the record reveals no independent evidence beyond McFadden’s 

battery of Taulbee—which was established by evidence that McFadden pushed,

hit, and kicked Taulbee and pulled his hair—that would support a conviction 

for criminal confinement. Not only is there no direct evidence of confinement, 

Taulbee never testified that he felt confined. And the mere fact that Taulbee 

was injured during the battery does not mean that he was confined. See id. at 

554 (“An inference of confinement does not arise from evidence of injury to the 

victim.”). We therefore reverse and remand to the trial court with instructions 

to vacate McFadden’s conviction for Class B felony criminal confinement. 

[13] Because McFadden’s conviction for Class B felony criminal confinement will 

be vacated, the double-jeopardy concern that led the court to reduce 

McFadden’s conviction for Class C felony battery resulting in serious bodily 

injury to a Class B misdemeanor no longer exists, and we order the trial court 

to reinstate McFadden’s conviction for Class C felony battery resulting in 

serious bodily injury. See Johnson v. State, 925 N.E.2d 793, 795 (Ind. Ct. App. 

2010) (“[W]e have the authority to reinstate one of the other two vacated 

counts on which the trial court found Johnson guilty if the evidence is sufficient 

to support it.”) (citing Taflinger v. State, 698 N.E.2d 325, 328 (Ind. Ct. App. 

1998)), trans. denied.

[14] Because we order this conviction reinstated, we address McFadden’s claim—

although raised only in the criminal-confinement context —that Taulbee did 

not suffer serious bodily injury. 
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[15] Serious bodily injury includes bodily injury that causes extreme pain. See Ind. 

Code § 35-31.5-2-292; see also Erkins v. State, 13 N.E.3d 400, 407 (Ind. 2014). 

Here, the State alleged that Taulbee’s injuries caused him extreme pain, see

Appellant’s App. p. 82, and the evidence is sufficient to support this allegation. 

The evidence shows that during the battery, Taulbee fell to the ground and hit 

his head on the pavement. He suffered a fractured nose, subdural hematoma—

also known as bleeding in the brain—an abrasion to the back of his head, and a 

contusion near his left eye. Taulbee was hospitalized for four days, his nose 

required surgery, and his injuries compromised his vision in his left eye for a 

period of time. At trial, Taulbee testified that the pain he suffered as a result of 

the battery was greater than a past accident in which he lost his thumb in a 

shear press. The jury could reasonably conclude from this evidence that 

Taulbee suffered extreme pain. 

[16] In summary, we remand to the trial court with instructions to vacate 

McFadden’s conviction for Class B felony criminal confinement, reinstate his 

conviction for Class C felony battery resulting in serious bodily injury, and 

sentence McFadden accordingly.

Reversed and remanded with instructions.

Baker, J., and Riley, J., concur.