MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 03 2016, 8:24 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Patricia Caress McMath Gregory F. Zoeller Marion County Public Attorney General of Indiana Defender Agency Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Calvin Griffin, August 3, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1512-CR-2261 v. Appeal from the Marion Superior Court 17 State of Indiana, The Honorable Christina R. Appellee-Plaintiff. 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
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2261 | August 3, 2016 Page 1 of 9 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 Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2261 | August 3, 2016 Page 2 of 9 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
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2261 | August 3, 2016 Page 3 of 9 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
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2261 | August 3, 2016 Page 4 of 9 (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
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 03 2016, 8:24 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Patricia Caress McMath Gregory F. Zoeller Marion County Public Attorney General of Indiana Defender Agency Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Calvin Griffin, August 3, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1512-CR-2261 v. Appeal from the Marion Superior Court 17 State of Indiana, The Honorable Christina R. Appellee-Plaintiff. 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
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2261 | August 3, 2016 Page 1 of 9 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 Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2261 | August 3, 2016 Page 2 of 9 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
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2261 | August 3, 2016 Page 3 of 9 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
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2261 | August 3, 2016 Page 4 of 9 (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
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2261 | August 3, 2016 Page 5 of 9 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.
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2261 | August 3, 2016 Page 6 of 9 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
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2261 | August 3, 2016 Page 7 of 9 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
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2261 | August 3, 2016 Page 8 of 9 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.
Court of Appeals of Indiana | Memorandum Decision 49A02-1512-CR-2261 | August 3, 2016 Page 9 of 9