Court of Appeals of Indiana | Opinion 39A01

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A TTORNEY FOR A PPELLANT R. Patrick Magrath Madison , Indiana A TTORNEY S FOR A PPELLEE G regory F. Zoeller A ttorney 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

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- 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 c riminal

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confinement c onviction . 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 in sufficient to support McFadden’s criminal

- confinement conviction. We therefore rev erse 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 resi dent 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 kick ing Taulbee. Id. at 136, 139 , 265 . McFadden also grabbed Taulbee ’s hair. Id. at 136, 138 , 265

.

1 Gibson was McFadden’s co

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The men yelled, “ We s aid we’d get you and we got you, ” and called Taulbee a “snitch” while th ey battered him. Id. at 139, 247, 295.

[4] Taulbee suffered significant injuries and w as 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 information s ). 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. 2 Id. at 245, 247

- 48. The trial court vacated one of McFadden’s Class C felony battery convictions to avoid a double

- jeopardy violation

. Still concer ned 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 a s a lesser

- included offense of Class B felony aggravated battery. See Appellant’s App. p. 245.Court of Appeals of Indiana | Opinion 39A01

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misdemeanor. See id. at 251

- 54 . In its Judgment of C onviction, t he 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, n ot 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 wou ld 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] T he 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 evi dence 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 andCourt of Appeals of Indiana | Opinion 39A01

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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 ev idence 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 crimin al

confinement statute provided, in relev ant 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

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- 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. Fir st, 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] O ur Supreme C ourt addressed what constitutes removal “from one place to another” under Section 35

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- 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 ha s also rejected the argument that moving a victim only a f ew feet i s 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). Th us , 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 i

d. Yet the offense o f confinement requires proof of a “ substantial interference ” with a person’s liberty without the person’s consent , and “o ur 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 bat tery.” 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. Ap p. 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

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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

— t hat would support a conviction for criminal con finement

. Not only is t here 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 i d. 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 e xists, 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 tw o 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 McFa dden’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 d uring 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 hospit alized 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 lo st 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 resu lting in serious bodily injury, and sentence McFadden accordingly.

Reversed and remanded with instructions

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