*1 poten for the 35-38-2-3(g), § ly Ind.Code agree- plea Specifically, probation. on for Cox's imposed consequences be make tial would the State provided ment Code Indiana probation. of violation sentencing recommendation: following any exe- court au-. except that the trial 35-38-2-3(g)(3) gave § "No recommendation part of of all or execution thority (10) to order ten not exceed imposed cuted sentence at the suspended that was ... made sentence be Cox's that restitution years finding Ap- sentencing upon imposed." initial time of any probation of condition Thus, proba of his Cox condition had violated a at 36. Appendix Cox pellant's not abuse Thus, discre- court did retained the trial trial court tion. that the agreed his оrdering to serve total sentence Cox discretion to determine its tion Ind. to serve See order Cox sentence. six-year suspended and to impose could 35-38-2-3(g). § probation. Code plea accepted court The trial CONCLUSION to twelve Cox and sentenced agreement reasons, we affirm foregoing For executed, years six years with six years, probation. of Cox's court's revocation trial probation. of years and three suspended, initial sen court's the trial Accordingly, Affirmed. plea terms complied with tence State, 755 v. See MATHIAS,J.,
agreement. KIRSCH, C.J., Shaffer 1193, (Ind.Ct.App.2001) 1194-1195 N.E.2d concur. of imposition court's that the trial
(holding execut years two with six-year sentence first suspended with years and four
ed not did on work release years those
two of cap on executed three-year
contravene plea in the defendant's
time contained State, 706 N.E.2d Page
agreement); (holding (Ind.Ct.App.1999) RANSOM, Appellant-Defendant, Arra . of а ten- imposition court's the trial v years executed with two year sentence in accordance years suspended eight Indiana, Appellee-Plaintiff. of STATE providing plea agreement terms of with No. 49A02-0507-CR-659. a sen to receive the defendant executed), years than six Indiana. of no more of tence Appeals Court trans. denied. July 2006. agree- plea in his agreed Cox Because him place could trial court that the ment to com- agreed impliedly he probation, any such the terms of
ply probation or any punishment imposition Cox, probation. violating
consequence for by commit-
however, probation his violated drugs. Upon using crime and another
ting violation, court the trial probation
finding to the terms to look required
was then statute, specifical- revocation probation
ISSUES 1. Whether sufficient evidence sup- ports the convictions.
2. Whether the trial court erred when it denied Ransom's motiоn for a new trial, which asserted the State failed to disclose evidence favorable to the de- fense.
Whether her convictions for confinement violate the jeopardy *4 provision of the Indiana Constitution.
FACTS 2008, In December of Michael Ransom ("Michael") lived at Indianapolis his home. son, ("Halim"), His Halim Ransom also home, lived in the along with girl- Halim's friend, ("Cahill"), Katie Cahill and three- J., year-old the son of Halim and Cahill. (and Ransom is daughter Michael's Hal- sister). im's Ransom and boyfriend her Michael Reeves lived in an apartment about five minutes away from Michael's house. Cahill and Ransom had been close friends for four years. to five 18, 2004, On December Cahill and Ran- som talked on the telephone several times. Johnson, Ruth Marion County Public Ransom called during Cahill the afternoon Agency, IN, Defender Indiаnapolis, Attor- from Chicago, where she was shopping. ney Appellant. Later in evening, Cahill talked to Ran- Carter, Steve Attorney General of som after returning to Indianapolis. Sub- Indiana, Barnhart, Scott L. Deputy Attor- sequently, a telephone conversation General, ney IN, Indianapolis, Attorneys midnight" "around was "not real for Appellee. friendly," (Tr. and pleasant." "less than
53, 54). Ransom "upset," and she OPINION accused Cahill of having been Ransom apartment Reeves' during their ab- DARDEN, Judge. sence. Ransom told Cahill that a neighbor reported had presence Cahill's in the STATEMENT OF THE CASE apartment, and she reminded Cahill that Arra appeals convictions, Ransom she and Reeves missing were a key to trial, jury after a as a class apartment. their hung up Ransom on Ca- B felony, and battery, as a felony. class C hill, and when Cahill attempted several We affirm in part, in part, reverse and times back, to call her Ransom did not remand. answer. 14, day of December during Later later, minutes fifteen
About and asked 2003, Ransom called Cahill home. in front of Michael's arrived Reeves room, charges. going press living she was in the whether alone had been Cahill 14th, an police received she went on December up, Also saw them drive and when dining that Cahill had been room, anonymous report through living from Ran- to Michael's home cigarette. a An officer went room, kitchen for beaten. Cahill; Reeves her fore- report herself and a from key to let and took used her som walking back the house. injuries photographed. into head were roоm, dining through the living toward 2008, the State December On walking to- room, observed Reeves having committed charged Ransom with hand; in his something ward offenses on December various a distance of him" at was "behind felony; B confinement as class including (Tr. 89, Both couple "a feet." felony; pointing a a class C battery, as "yelling at began and Ransom firearm, carrying a felony; D class money" taking accusing [her] ... [her] license, A mis a class handgun without and, key" "that yelling [she] tried before Ransom was demeanor. Cahill, yelling "to they walked toward 1, 2005, February January 31 and key back." ... their give them *5 that Ran argued during which State closer, he "started walked Reeves When Cahill, and in" the attack on "aided som gun." "[Alt Id. with the hitting [Cahill] stop to or take action oppose" "failed to was him that Ransom "told point," one (Tr. 384). Testimony as to the attack. enough that ... told enough, [Reeves] Pictures of Cahill's foregoing was heard. 62). (Tr. placed also Reeves stop." to into injuries also admitted were forehead it to and touched in mouth gun Cahill's evidence, the At close of evidence. floor, lost con- fell to the face. Cahill her Ransom a directed ver granted court trial bladder, with her up curled trol of handgun carrying a charge on the of dict her head. hands over jury found Ransom license. The without into the came Hearing yelling, Michael charges, and the three of the other guilty the floor. Michael room and saw Cahill the convicti judgment of court entered trial bleeding that head Cahill's observed ons.1 forehead, and knot on her she had a hand, 22, 2005, filed a mo in "a rеal Ransom gun had a his March Reeves On that Ransom asserted for a new trial. tion (Tr. and Reeves gun." Maryland, 373 Brady v. of broken violation ... had saying [Cahill] "were 1194, 83, 87, 10 L.Ed.2d 83 S.Ct. stealing U.S. had been apartment and into their (1963), failed to disclose 227). "[Tjo (Tr. the State them on get from them." 2004, 28, an arrest on October her that there," Ransom and told of Michael out after had been issued for Cahill way. warrant on the police were that the confer pretrial appear for she failed (Tr. 208). left and Reeves filed Octo of conversion charge on a ence Michael, firefighter, ex- a retired house. held eviden- 17, trial court 2004. The ber that she did concluded Cahill and amined 29, April 23 and hearings on March tiary injury, and he significant head not have shortly before testified 2005. to her head. applied ice merged the sentencing, charge. the trial court ment 1. At charge the confine- into pointing-a-firearm
trial, "general" had made a inquiry ments of the proven beyond crime Tiffany regarding Detective Woods wheth- reasonable doubt. er trial were witnesses checked for out- State, (Ind. Dunlap v. 761 N.E.2d warrants,
standing arrest Woods 2002). knew, had informed her that as far as she The argued State that Ransom was (Tr. 489). this was not done. Cahill fur- liable for charged the offenses as an ac ther testified that she had never informed complice. provides Indiana law per that a either Woods or prosecutor before trial aids, son "who knowing or intentionally arrest, about October 2004 or her fail- induces, or causes another person to com appear cоnference, ure to pretrial mit an offense commits offense...." or that might there be a warrant for her § Ind.Code 35-41-2-4. To be convicted arrest. Woods testified that Cahill never a crime under the theory accomplice informed any her about "warrant out for liability, it is not that the defen necessary (Tr. 470). her arrest." Woods testified participate dant in every element of that that Cahill's mother had shortly called her crime. Bruno v. 774 N.E.2d before trial and informed her that Cahill (Ind.2002). "presence defendant's picked up "had a new case and was wor- during the commission of the crime or the ried about whether going she was to be oppose are, failure to by crime them trouble judge." [sic] the Id. Woods selves, insufficient to establish accomplice her, id., know," told "I аsked, don't liability"; however, "they may be consid "Does she have warrant?" a. ered along with other facts and cireum- replied Cahill's "mom that she had no stances tending to participation." show idea." Id. Woods also testified that she Hodge prosecutor informed the that Cahill's *6 (Ind.1997). Thus, in determining whether mother "had called ... and said [Cahill] aided, person to, or was an accomplice picked up a new case." On crime, another in the commission of a our 25, 2003, May the trial court issued a six- Supreme Court page order denying Ransom's motion for a long has considered the following four trial, new finding no Brady violation be- (1) factors: presence at the scene of the cause the existence of the arrest warrant crime; (2) companionship with another (1) (2) Ransom, was "not favorable to" was engaged (8) in criminal activity; failure "public record subject and not suppres- to (4) crime; to oppose the and a defen- sion," (8) "would not changed have the before, dant's conduct during, and after 190). outcome of 189, the trial." (App. the occurrence of the crime. (Ind. Garland v. 431
DECISION 2003). 1. Sufficiency the Evidence of a. Battery.
When reviewing a claim of insufficient Ransom's argument first concerns evidence, we will affirm the conviction the offense battery. Battery of is defined unless, considering only the evidence as "knowing[ the ] or touch intentional[] and reasonable inferences ing" rude, favorable to person "another in a insolent judgment the reweighing manner," neither angry or and the offense is "a the evidence judging nоr credibility the felony class C if it results in bodily serious witnesses, we conclude that no injury any to person other or if it is com reasonable fact-finder could find the ele- by mitted means deadly of a weapon."
497
conveyed
Cahill,
words
and their
attacks of
consider-
begin by
We
§ 35-42-2-1.
I.C.
insolent,
"rude,
manner."
angry
or
house
their
at Michael's
presence
Ransom's
ing
§
tend-
85-42-2-1.
presence
1.C.
her
whether
night, and
Garland,
participation.
ed to show
fail
is the
The third consideration
who, in
Ransom
It was
at 481.
N.E.2d
crime. Ransom reminds
oppose
to
ure
conversation, accused
telephone
their last
crime,"
when
oppose
"did
us that she
in the
presence
unauthorized
of her
Cahill
enough."
'Stop. That's
"told Reeves
Reeves. She
Ransom
apartment
Tr.
(citing
Br.
Ransom's
at
not answer
аnd did
up on Cahill
hung
unequivocal
is not
Again, this statement
her back.
to call
attempted
when Cahill
battery,
opposition
of her
evidence
Reeves
later, Ransom and
minutes
Fifteen
inference that
support
also
as it could
facts
These
residence.
at Cahill's
arrived
agreed
Ca-
Ransom and Reeves
that Ransom
the inference
support
not re
slightly-and
only
hill
be
would
physically
to
residence
to her
went
Reeves
Further, Ransom was
peatedly-beaten.
Further,
armed
Reeves'
confront Cahill.
before the
at Cahill
yelling accusations
facilitat-
was
residence
Cahill's
presence
yelling
continued
beating commenced
key
gain
of her
use
by Ransom's
ed
conduct which
beating,
during
at her
entry.
"in-
was
that she
the inference
supports
battery.
tо commit
duc[ing]" Reeves
companion
consider
We next
§ 85-41-2-4.
I.C.
during his assault
Reeves
ship with
Garland,
N.E.2d
gun.
Ransom's
consideration is
The final
attention
draws our
Ransom
at 431.
before,
the bat
during, and after
conduct
not
that Ransom
testimony by Cahill
Garland,
As
N.E.2d at 431.
tery.
first struck
room when
in the
discussed,
who had
already
However,
reflected
gun.
with the
accu
which
telephone conversation
FACTS, Cahill's
testimony in
quoted
were
originally
against Cahill
sations
contrary
support
testimony can also
thereafter,
arrived
made;
shortly
appellate
jury, not
inference.
Reeves; Ransom
residence with
at Cahill's
weighs evi
court,
credibility and
assesses
two;
for the
the residence
entry to
gained
N.E.2d
Becker v.
dence.
*7
Reeves,
to
staying
not
left with
Ransom
Thus,
it is for
(Ind.Ct.App.1992).
2;
called Cahill
and Ransom
for
сare
Cahill
in the
conflicts
fact
to resolve
trier of
she was
whether
day to ask
the next
State,
N.E.2d
Kilpatrick
evidence.
charges.
pressing
Moreover,
(Ind.2001).
the evidence
52, 61
supports
evidence
Sufficient
Reeves' com
that Ransom
established
an ac
Ransom was
that
jury's conclusion
the attack
and after
before
both
panion
battery of Cahill.
in the
complice
occurrence,
Cahill,
during its
simply
not
to
extended
companionship
their
and that
b. Confinement.
confron
physical
this
contemplated
having
sufficiency
challenges the
next
Ransom
residence.
arriving at Cahill's
tation before
her conviction
support
the evidence
in their verbal
companions
also
They were
"didn't
explaining that he
deposition,
testimony
or in his
Michael's
us to
directs
2. Ransom
Therefore,
201).
(Tr.
[Cahill],"
him,
before
it was relevant."
"See to
think
told
that she
his
200, 201).
believe
(Tr.
not to
may
have decided
night.
that
the house
she left
However,
he had not
regard.
conceded
testimony
Michael
in this
trial
police
his statement
this in
mentioned
oppose
The offense of confinement
ure to
confinement.
and her
occurring
before,
when one "know-
is defined as
during
conduct
and after the con-
ingly
intentionally
per-
or
confines another
finement, and that evidence allowed it to
consent,"
person's
son without the other
draw the inference that Ransom was liable
felony
B
"if it
and it is a class
is committed
accomplice
as an
in the criminal confine-
deadly weapon."
while armed with a
IC. ment of Cahill
§
To
means "to
35-42-3-8.
"confine"
sub-
stantially
liberty
interfere with the
of a 2. Motion
New Trial
§
person." 1.0.
85-42-8-1.
process
Due
requires the State to
argues
first
Ransom
the evi
any
disclose to the defense
evidence which
is insufficient be
confinement
is
guilt
dence
material to the
or innocence of the
confined," in that
cause Cahill "was not
Brady
defendant.
v. Maryland, 373 U.S.
dining
neither asked nor tried to leave the
83,
1194,
83 S.Ct.
which we do not do. Dunlap, See (8) inadvertently; and that the evidence N.E.2d at 839. was material to an issue at trial. Cahill testified that Reeves had walked (Ind. Prewitt v. closer," "got toward her and until she was Ct.App.2004), Further, trans. denied. (Tr. "up against a door." establishing Brady violation, evidence "is outside, closed, door was to the only material if there prob is reasonable "likely locked." testified that, ability had the evidence been dis door, that when at she was Reeves had defense, closed to the the result of the gun, and she did not feel free to leave. proceeding would have been different." This evidence is sufficient to allow the trier Id. of fact to draw the reasonable inference substantially interfered with Ransom argues first that the evi i.e., liberty, that Cahill was con- dence of an active warrant Cahill's for Cahill's ~ fined. arrest was favorable to her because Cahill witness," "was reluctant long had a Next, argues that the evi "complex" relationship with dence prove was not sufficient to that she *8 family, her "credibility and her was eru-cial." accomplice was "an to confinement." Ran Ran som's Br. at Accepting 18. end, Br. som's at 15. that Towards she assertions, those we nevertheless must de simply "incorporates" argument her as fer to the trial court's observation of Ca- serting accomplice a lack of liability on the hill's demeanor aas witness at trial: battery charge. upon Id. Based the rea above, soning ... argument we find this Cahill was a again reluctant witness for to fail. The heard the impeached by evidence of Ran State. She was the presence during occasions, som's the confinement of State on several sought to Cahill, her companionship with Reeves mimnamizeRansom's role in the confron- during Cahill, the confinement of her fail- yawned tation. during She her testimo-
499 shown the prejudice that is because par- gues not she was that expressed ny, have been "evidence warrant would testifying against about ticularly excited way in a so as to testifying [Cahill] friend. her best Br. at jail." Ransom's keep herself out of added). 186) The trial (emphasis (App. noted, However, there is no already 20. of Ca- a "fair review court concluded testimоny was a re that Cahill's evidence con- support th[e] testimony does not hill's gain it would her sult of her belief favor- particularly that she testified clusion to respect with favor from the State State, respect with especially ably for charge. conversion 186). (App. Ransom." to Defendant own Thus, trial court found Oahill's Further, that Ca- the record establishes Ran- intent that convey to demeanor in issue at credibility very much hill's for legally accountable not be held som trial; fact, impeached by the she was Further, 14, 2008. of December incident occasion. The on more than one State she did not testified that expressly of Cahill's photographs included evidence in trouble." get to see [Ransom] "want testimony injuries, Michael's about 176). Moreover, (Tr. there is no evidence Reeves leveled at accusations Ransom and of her was a result testimony that Cahill's injured and lay on the floor Cahill as she favor from gain that would belief on this gun. had a Based that Reeves the conversion respect to with State evidence, do not find a corroborating we Therefore, to find that we fail charge. that had the State probability reasonable arrest for Cahill's of a warrant evidence that an arrest to the defense disclosed de- to Ransom's favorable was evidence issued Cahill-sub- warrant been fense. by and recorded to her interviews sequent night police about statement violation, Brady To establish probably the trial result of December-the "suppressed have been also must evidence Prewitt, been different. See would have Prewitt, N.E.2d at 401. 819 by the State." Therefore, con- we N.E.2d at 401. knowledge of concedes that The State err in did not the trial court clude it, and to necessarily imputed warrant is trial. motion for a new Ransom's denying the informa duty to disclose that it had However, Brady viola trial. tion before Jeopardy 3. Double the defendant claim fail where
tion
will
to discover
diligence
due
failed to exercise
v.
In Richardson
Shanabarger
the evidence. See
(Ind.1999),
Supreme
our
N.E.2d
(Ind.Ct.App.2003),
N.E.2d
more
of two or
held that convictions
Court
noted,
court
As the trial
denied.
trans.
14 of the
Article
Section
offenses violate
part
in fact
is
of the warrant
"issuance
"if,
respect
Indiana Constitution
for Cahill's
chronology
public case
chal
statutory
elements
either
(App.
case."
conversion
pending criminal
used
the actual evidence
lenged erimes or
convict,
of one
elements
the essential
the essen
also establish
challenged offense
had es
if Ransom
Finally, even
challenged of
of another
criteria,
tial elements
still
the above two
tablished
whether
de novo
review
probability
fense." We
*9
the reasonable
to establish
Indiana's
violate
convictions
defendant's
disclosed
arrest warrant been
that had the
Spears
Jeopardy Clause.
Double
defense,
proceeding
of the
the result
to the
(Ind.2000).
1161, 1166
ar
735 N.E.2d
different.
would have been
felony,
B
argues
proven
that her convic
the State must have
be-
battery
felony yond
B
a reasonable doubt
that she "did
tions for both
class
knоwingly confine Katie
without
felony
violate
the
and confinement as
class C
consent of Katie Cahill while armed with a
prohibition
the
Indiana Constitution's
deadly weapon,.
handgun."
that
is: a
Specifically,
against
jeopardy.
1839).
(App.
jury
The
was instructed that
"actual
claims a violation under the
evi
battery,
convict Ransom of
as a class C
us to Bruce v.
dence test" and refers
felony,
proven beyond
the State must have
(Ind.Ct.App.2001),
a reasonable doubt
that Ransom "did
trans. denied
rude, insolent,
knowingly, in a
angry
or
Bruce,
In
the defendant
claimed that
manner,
Cahill,
touch Katie
that
hit at
is:
attempted aggra-
his convictions "of both
against
body
and
the head and
of Katie
battery
vated
and
confinement
criminal
Cahill,
resulting
bodily injury to Katie
deadly weapon"
with a
constituted a viola- Cahill,
by
deadly
or
means of a
weapon,
portion
tion of the "actual evidence"
141).
handgun."
is: a
(App.
Jeopardy
Indiana's Double
Clause. 749
confinement instruction does not mention
N.E.2d at 590. We stated that where
any requirement
prove
the State
"multiple
part
offenses
committed as
[are]
rude, insolent,
angry touching
or
that re-
protracted
of a
criminal episode," multiple
bodily
sulted in
injury
by
was inflicted
convictions can stand when the record es- handgun. Similarly,
battery
the
instruc-
jury
tablishes that "the
could not have
tion does not
any required proof
mention
reasonably
the
used
same evidence to con-
having
confined Cahill without her con-
viet" the defendant of
multiple
those
Thus,
sent.
portray
the instructions could
crimes.
Id. We then reviewed thе final
separate incidents.
instructions, which we
"portray
found to
However,
prosecutor's closing argu-
shooting
sepa-
confinement as two
ment did not clearly separate the eviden-
rate incidents."
Id. We reviewed the
tiary
facts
the State was alleging to
prosecutor's closing argument and found it
separate
constitute
Discussing
offenses.
to separately discuss facts with respect to
charge,
prosecutor
confinement
re-
the confinement and other facts with re-
jury
minded
the definition of "con-
spect
shooting.
Id. at 591. We
fining"
jury
and asked the
to consider
further noted that defense counsel "em-
whether
...
Cahill was
confined when she
phasized
separateness
of the confine-
pinned
was
against
that wall and
ment
attempted aggrаvated
her,
yelling
was
at
... Ransom
counts"
conceding "that his client had
her,
yelling
was
at
and ... Reeves was
committed
deadly
confinement with a
wailing away at her with that handgun."
weapon
battery"
arguing
but
the lack
respect
With
to battery,
necessary
mens rea for conviction prosecutor argued that the evidence estab-
charge
of a
for shooting at the victim.
lished that Cahill
"hit
against
was
at and
record,
Based on this
we
concluded
body" by
the head and
a handgun, that
jury
"could not have reasonably used
gun
pointed
"the
at her" and "held to
the same
to convict
evidence
Bruce of
mouth,"
temple"
"put
in her
both attempted aggravated battery and the fact Cahill "could not have run
and,
therefore,
confinement"
affirmed.
away" was evidenсe that what Reeves
when struck the victim battery Rather she was convicted of aas gun. with the The fact that victim the My Class A misdemeanor. conclusion in of, during, also confined and as a result the respect this is drawn from trial the сourt's battery does not vitiate the fact that the statement: already crime of confinement had oc-
curred, I battery, in "On the don't think that complete separate itself and under subsequent battery. from the Richardson or the other double jeopar cases, dy handgun the can be used two I affirm would the decision of the trial I battery's got times. think the to be a in respects. court all misdemeanor so I'll judgment enter SULLIVAN, a, Judge, part lesser, in Count III as concurring guilty show as A misdemeanor." Tr. at 529.4 in dissenting part. I fully respect concur with to the lead This pronouncement judg- constituted a opinion's holding as to denial of Ransom's ment of upon battery conviction the misspoke referring 4. court equation battery bat- firearm from the toas tery charge Original as Count III. thereby eliminating any Count I for Richardson dou- jeopardy carrying handgun by ble concerns as to inclusion of the a a serious violent felon only remaining related to Reeves. The counts use of a firearm as to both the confinement finally were renumbered so that I as Count battery and the convictions. submitted to the was for the Class B challenge pointing Ransom does not felony battery confinement. The Class C be- perhaps conviction because the court at a II, pointing came Count a firearm be- subsequent sentencing continuation of the came Count III. The court directed a verdict "pointing merge stated that should charge on new Count IV which was for the charge." the confinement Tr. at 537. Never- license, carrying handgun without a a Class theless, parties рresume both that the trial However, during A misdemeanor. sentenc- years upon court sentenced Ransom to six ing, misspoke (rather the court to the effect that she years confinement conviction and two pointing had directed a verdict as to the days) battery than 365 on the conviction. In charge carrying firearm than rather so, doing the court said that the minimum handgun charge under new Count IV. Old years. only sentence was two This could re- pointing Count IV was for the offense. fer to the conviction as a Class C court, felony noted, expressed rather than as a Class A misdemeanor. The trial as any The court did not discern jeopardy using handgun unfavorable concerns about Ransom, predicate however, as a penal for more than one impact upon conviction. be- that, may, judg- Be that as it running actual conviction cause she noted "I'm it concur- ments anyway." were for confinement as a Class B rent Tr. at 537. Misdemeanor, felony, battery as a Class A The fact that Reeves and Ransom were perhaps pointing jointly may explain why firearm as a Class D tried the trial court felony. The court sentenced handgun charges they Ransom to 365 intermixed the relat- Thus, days battery. reducing for the bat- Furthermore, ed to the two defendants. tery ato Class A sentencing stage fragmented misdemeanor eliminates the fact that the hand, Judge dis- On the other Kirseh's held Stott charge. As *12 that the confinement and sent would hold trans. (Ind.Ct.App.2005), 178 N.E.2d crimes, battery the were discrete that the denied: jury instructed in this re- by logic properly the of What was persuaded are "We (Ind. N.E.2d gard, v. and that there was no same evidence ley violation. jeopardy 1997), pro double in-court held that the which subsequent over prevails nouncement My jeopar- as to the double conclusions Here, trial contradictory language. entirely different dy proceed issue from an unmistakably stated obviously court from analysis approach the evidence and of acquitted was the record that Stott entirely my direction. It is an different elementary that the It is on Count One. that there was no confinement conclusion judgment." its trial court be bound battery, separate apart from handgun as a the use of the Eliminating Dar- Judge I concur with for that reason the confinement necessary element both to the effect that there was opinion den's the double battery does not end and the violation jeopardy same evidence double two respect, In this jeopardy inquiry. my dissent from affir- respectfully but must issue from differ- colleagues approach the battery conviction if reduced mance of the Darden's lead Judge perspectives. ent A Whether as a to a Class misdemeanor. that the confinement opinion concludes misdemeanor, felony or a A Class C Class jeopardy battery convictions violate battery must fail. conviction might jury because considerations The reflects that Cahill and evidence had been confined found that Cahill have other walking Reeves were toward each striking her with the "when Reeves was besting began. Cahill was before the jury also relied on handgun, and that the living from the kitchen foward the walking evidence-including the use that same dining in the room room and Reeves was guilty handgun-to find away, walking toward ten to twelve feet at 501. This felony." Op. as a Class C facts, pointing gun. Given these that the conviction presupposes conclusion confinement until Reeves there was no felony, rather truly for a Class C was than and started gun lips to Cahill's held A for a Class misdemeanor. as I submit There no actual confine beating her. was event, opinion lead would any In twelve feet Reeves was ten to ment when evi- that there was indeed sufficient hold to Reeves walked away and not even as properly find dence for the walking was also ward her because Cahill in that Reeves was a confinement thеre that Ran Reeves. Cahill testified toward and that against a wall' "backed Cahill during yelling at her som and Reeves were battery in that Reeves "struck there was a response to the next occurrence. In this Op. handgun." repeatedly with Reeves do did Michael question, "What however, opinion, Judge at 501. Darden's said, hitting just started next?" she "He under the jeopardy violation finds a double Tr. at 60.5 gun." me with the Richardson. evidence test of same discrep- quotes apparent Richardson might for the also account (Ind.1999), jeopardy court as to what violation ancy in the mind of the that a double subject of the con- precise offenses were the evidence respect to "the actual occurs if with therefore, precise what the con- victions and convict, elements of one the essential used to subject of the sentences victions were the the essential challenged also establish offense imposed. challenged offense." elements of another how- opinion, Subsequent to the Richardson analy- evidence" regard to the "same 5. With ever, jeopardy a double court held that sis, this Judge certainly dispute that Dar- I cannot evidentiary facts accurately "where the page violation occurs opinion at den's lead ap- I would affirm the conviction and appear It that when Reeves sen- would being tence for the convie- her, began to hit proached Cahill greater penal consequences, tion with but in the "right front door" battery, conviction would reverse the 'I'r. at 61. She testified that dining room. notwithstanding whether it is for a Class C against the door" but "pinned she was not A felony or a Class misdemeanor. "just it." Ir. at 166. up against evidence does not reflect she backed *13 merely in It
up get front of the door.
shows that that was her location when the
beating, and therefore place.
took short,
In the confinement did not occur poses
until the occurred. This problem jeop-
"same for double evidence"
ardy purposes.
punishment
crime which consists
an essential element of one offense
establish[ ]
for
very
]
also
alf of the essential elements of
establish[
same act as an element
another
challenged
the second
offense." Alexander v.
crime
which the
has been con-
for
defendant
State,
(Ind.Ct.App.2002).
768 N.E.2d
punished."
(orig-
victed and
jeopardy prohibit considerations "Comviction N.E.2d at 1149.