MEMORANDUM DECISION FILED Nov 15 2017, 8:31 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as CLERK Indiana Supreme Court precedent or cited before any court except for the Court of Appeals and Tax Court purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Victoria L. Bailey Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Chad M. Farrell, November 15, 2017
Appellant-Defendant, Court of Appeals Case No. 76A05-1705-CR-1002
v. Appeal from the Steuben Circuit Court State of Indiana, The Hon. Allen N. Wheat, Judge Trial Court Cause No. Appellee-Plaintiff. 76C01-1602-F1-104
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 76A05-1705-CR-1002 | November 15, 2017 Page 1 of 6 Case Summary [1] Appellant-Defendant Chad Farrell feigned illness to lure his ex-girlfriend A.B.
to his Steuben County trailer home, where he forcibly raped her at knifepoint.
When A.B. attempted to flee, Farrell prevented her escape by standing in the
doorway, brandishing the same knife. The State charged Farrell with Level 1
felony rape and Level 3 felony criminal confinement, a jury convicted him as
charged, and the trial court sentenced him to an aggregate term of forty-five
years of incarceration. Farrell contends that his convictions violate prohibitions
against double jeopardy. Because we disagree, we affirm.
Facts and Procedural History [2] On February 18, 2016, at around 11:50 p.m., Farrell called A.B., with whom he
had previously been romantically involved, and asked her to take him from
work to the hospital because he claimed to be having chest pains. A.B. started
driving to the hospital, but Farrell told her to just take him home so he could lie
down. The duo arrived at Farrell’s trailer at approximately midnight. Once
inside, Farrell asked A.B. to help him to his bed. As they neared the bed,
Farrell threw A.B. on the bed and yelled that she “deserved this.” Tr. Vol. II p.
173.
[3] Farrell pulled off A.B.’s shoes, jeans, and underwear. Farrell told A.B. “that
[she] deserve[d] this … this is what you get[.]” Tr. Vol. II p. 175. Farrell
removed his shoes, jeans, and underwear; climbed on top of A.B.; put his penis
Court of Appeals of Indiana | Memorandum Decision 76A05-1705-CR-1002 | November 15, 2017 Page 2 of 6 inside of A.B.’s vagina; and began to rape her. Farrell produced a knife and
held it in his right hand, telling A.B. that she was not leaving until she watched
him slit his wrists. Farrell ejaculated during his rape of A.B.
[4] A.B. asked Farrell for a drink of water. After Farrell climbed off A.B., put his
clothes on, and walked to the kitchen for the glass of water, A.B. dressed and
ran for the door. Farrell, however, beat A.B. to the door and prevented her
from exiting by standing between her and the door. Farrell still had the knife in
his hand.
[5] A.B. went to the kitchen for a glass of water and returned to find that Farrell
was still between her and the door. A.B. pleaded with Farrell to let her leave,
but he told her that she was not leaving until she watched him slit his wrists.
A.B. continued to plead with Farrell to let her out of the door. Farrell leaned
against the door and closed his eyes, and, at some point, appeared to lose
consciousness. A.B. hid the knife in Farrell’s couch between the armrest and
the cushion and managed to move Farrell enough to leave.
[6] On February 19, 2016, the State charged Farrell with Level 1 felony rape and
Level 3 felony criminal confinement. A jury trial was held on March 15 and
16, 2017, and the jury found Farrell guilty as charged. On April 10, 2017, the
trial court sentenced Farrell to thirty-five years of incarceration for rape, ten
years for criminal confinement, and order that the sentences would run
consecutively for an aggregate sentence of forty-five years.
Court of Appeals of Indiana | Memorandum Decision 76A05-1705-CR-1002 | November 15, 2017 Page 3 of 6 Discussion and Decision [7] Farrell argues that his convictions for Level 1 felony rape and Level 3 felony
criminal confinement violate prohibitions against double jeopardy. In
Richardson v. State, 717 N.E.2d 32 (Ind. 1999), the Indiana Supreme Court held
“that two or more offenses are the ‘same offense’ in violation of Article I,
Section 14 of the Indiana Constitution, if, with respect to … the actual evidence
used to convict, the essential elements of one challenged offense also establish
the essential elements of another challenged offense.” Id. at 49-50.
To show that two challenged offenses constitute the “same offense” in a claim of double jeopardy, 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 the essential elements of a second challenged offense. Id. at 53. Merely a remote or speculative possibility is not enough; rather, the
record must establish that the jury used the same evidentiary facts to establish
the essential elements of the two offenses. Hopkins v. State, 759 N.E.2d 633, 640
(Ind. 2001) (citations omitted). “In determining the facts used by the fact-finder
to establish the elements of each offense, it is appropriate to consider the
charging information, jury instructions, and arguments of counsel.” Lee v. State,
892 N.E.2d 1231, 1234 (Ind. 2008) (citing Spivey v. State, 761 N.E.2d at 832
(Ind. 2002); Richardson, 717 N.E.2d at 54 n.48).
[8] Farrell was charged with Level 1 felony rape for “knowingly or intentionally
hav[ing] sexual intercourse with A.B., when A.B. was compelled by force or
Court of Appeals of Indiana | Memorandum Decision 76A05-1705-CR-1002 | November 15, 2017 Page 4 of 6 imminent threat of force … while armed with a deadly weapon, to-wit: a
knife[.]” Appellant’s App. Vol. II p. 20. Farrell was also charged with Level 3
felony criminal confinement for “knowingly or intentionally confin[ing] A.B.
without A.B.’s consent … while armed with a deadly weapon, to wit [sic]: a
knife.” Appellant’s App. Vol. II p. 21. As the Indiana Supreme Court has
noted in a similar case, “[c]ertainly, one who commits rape or criminal deviate
conduct necessarily ‘confines’ the victim at least long enough to complete such
a forcible crime.” Gates v. State, 759 N.E.2d 631, 632 (Ind. 2001). The
question, then, is “whether the confinement exceeded the bounds of the force
used to commit the rape[.]” Id. On this record, we conclude that the State
easily established that Farrell’s confinement of A.B. exceeded the bounds of the
force he used during his rape of her.
[9] First and foremost, the two convictions were proved by largely separate bodies
of evidence. The State presented evidence that Farrell lured A.B. to his trailer,
forced her onto his bed, undressed her, and forcibly raped her while holding a
knife. After the rape was complete and Farrell had put his clothing back on, he
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MEMORANDUM DECISION FILED Nov 15 2017, 8:31 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as CLERK Indiana Supreme Court precedent or cited before any court except for the Court of Appeals and Tax Court purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Victoria L. Bailey Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Chad M. Farrell, November 15, 2017
Appellant-Defendant, Court of Appeals Case No. 76A05-1705-CR-1002
v. Appeal from the Steuben Circuit Court State of Indiana, The Hon. Allen N. Wheat, Judge Trial Court Cause No. Appellee-Plaintiff. 76C01-1602-F1-104
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 76A05-1705-CR-1002 | November 15, 2017 Page 1 of 6 Case Summary [1] Appellant-Defendant Chad Farrell feigned illness to lure his ex-girlfriend A.B.
to his Steuben County trailer home, where he forcibly raped her at knifepoint.
When A.B. attempted to flee, Farrell prevented her escape by standing in the
doorway, brandishing the same knife. The State charged Farrell with Level 1
felony rape and Level 3 felony criminal confinement, a jury convicted him as
charged, and the trial court sentenced him to an aggregate term of forty-five
years of incarceration. Farrell contends that his convictions violate prohibitions
against double jeopardy. Because we disagree, we affirm.
Facts and Procedural History [2] On February 18, 2016, at around 11:50 p.m., Farrell called A.B., with whom he
had previously been romantically involved, and asked her to take him from
work to the hospital because he claimed to be having chest pains. A.B. started
driving to the hospital, but Farrell told her to just take him home so he could lie
down. The duo arrived at Farrell’s trailer at approximately midnight. Once
inside, Farrell asked A.B. to help him to his bed. As they neared the bed,
Farrell threw A.B. on the bed and yelled that she “deserved this.” Tr. Vol. II p.
173.
[3] Farrell pulled off A.B.’s shoes, jeans, and underwear. Farrell told A.B. “that
[she] deserve[d] this … this is what you get[.]” Tr. Vol. II p. 175. Farrell
removed his shoes, jeans, and underwear; climbed on top of A.B.; put his penis
Court of Appeals of Indiana | Memorandum Decision 76A05-1705-CR-1002 | November 15, 2017 Page 2 of 6 inside of A.B.’s vagina; and began to rape her. Farrell produced a knife and
held it in his right hand, telling A.B. that she was not leaving until she watched
him slit his wrists. Farrell ejaculated during his rape of A.B.
[4] A.B. asked Farrell for a drink of water. After Farrell climbed off A.B., put his
clothes on, and walked to the kitchen for the glass of water, A.B. dressed and
ran for the door. Farrell, however, beat A.B. to the door and prevented her
from exiting by standing between her and the door. Farrell still had the knife in
his hand.
[5] A.B. went to the kitchen for a glass of water and returned to find that Farrell
was still between her and the door. A.B. pleaded with Farrell to let her leave,
but he told her that she was not leaving until she watched him slit his wrists.
A.B. continued to plead with Farrell to let her out of the door. Farrell leaned
against the door and closed his eyes, and, at some point, appeared to lose
consciousness. A.B. hid the knife in Farrell’s couch between the armrest and
the cushion and managed to move Farrell enough to leave.
[6] On February 19, 2016, the State charged Farrell with Level 1 felony rape and
Level 3 felony criminal confinement. A jury trial was held on March 15 and
16, 2017, and the jury found Farrell guilty as charged. On April 10, 2017, the
trial court sentenced Farrell to thirty-five years of incarceration for rape, ten
years for criminal confinement, and order that the sentences would run
consecutively for an aggregate sentence of forty-five years.
Court of Appeals of Indiana | Memorandum Decision 76A05-1705-CR-1002 | November 15, 2017 Page 3 of 6 Discussion and Decision [7] Farrell argues that his convictions for Level 1 felony rape and Level 3 felony
criminal confinement violate prohibitions against double jeopardy. In
Richardson v. State, 717 N.E.2d 32 (Ind. 1999), the Indiana Supreme Court held
“that two or more offenses are the ‘same offense’ in violation of Article I,
Section 14 of the Indiana Constitution, if, with respect to … the actual evidence
used to convict, the essential elements of one challenged offense also establish
the essential elements of another challenged offense.” Id. at 49-50.
To show that two challenged offenses constitute the “same offense” in a claim of double jeopardy, 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 the essential elements of a second challenged offense. Id. at 53. Merely a remote or speculative possibility is not enough; rather, the
record must establish that the jury used the same evidentiary facts to establish
the essential elements of the two offenses. Hopkins v. State, 759 N.E.2d 633, 640
(Ind. 2001) (citations omitted). “In determining the facts used by the fact-finder
to establish the elements of each offense, it is appropriate to consider the
charging information, jury instructions, and arguments of counsel.” Lee v. State,
892 N.E.2d 1231, 1234 (Ind. 2008) (citing Spivey v. State, 761 N.E.2d at 832
(Ind. 2002); Richardson, 717 N.E.2d at 54 n.48).
[8] Farrell was charged with Level 1 felony rape for “knowingly or intentionally
hav[ing] sexual intercourse with A.B., when A.B. was compelled by force or
Court of Appeals of Indiana | Memorandum Decision 76A05-1705-CR-1002 | November 15, 2017 Page 4 of 6 imminent threat of force … while armed with a deadly weapon, to-wit: a
knife[.]” Appellant’s App. Vol. II p. 20. Farrell was also charged with Level 3
felony criminal confinement for “knowingly or intentionally confin[ing] A.B.
without A.B.’s consent … while armed with a deadly weapon, to wit [sic]: a
knife.” Appellant’s App. Vol. II p. 21. As the Indiana Supreme Court has
noted in a similar case, “[c]ertainly, one who commits rape or criminal deviate
conduct necessarily ‘confines’ the victim at least long enough to complete such
a forcible crime.” Gates v. State, 759 N.E.2d 631, 632 (Ind. 2001). The
question, then, is “whether the confinement exceeded the bounds of the force
used to commit the rape[.]” Id. On this record, we conclude that the State
easily established that Farrell’s confinement of A.B. exceeded the bounds of the
force he used during his rape of her.
[9] First and foremost, the two convictions were proved by largely separate bodies
of evidence. The State presented evidence that Farrell lured A.B. to his trailer,
forced her onto his bed, undressed her, and forcibly raped her while holding a
knife. After the rape was complete and Farrell had put his clothing back on, he
confined her in his trailer by standing in front of the door, again while holding
the knife. Other than the common facts of Farrell, A.B., and Farrell’s knife,
there is no overlap between the two crimes from an evidentiary standpoint.
[10] Moreover, in its opening, the State clearly distinguished between the separate
evidentiary facts it intended to prove that supported each charge:
I’m going to present evidence, the elements of rape that the Defendant; should expect testimony that he’s going to be
Court of Appeals of Indiana | Memorandum Decision 76A05-1705-CR-1002 | November 15, 2017 Page 5 of 6 identified, [A.B.]’s going to identify him, Trooper Lazoff’s going to identify him. Had sexual intercourse; that he had sexual intercourse with [A.B.]. And [A.B.]’s going to describe to you, as best as she can, she’s going to describe to you what that was and what that was like and what he did. And the DNA analysis is going to come back to show, yes indeed his DNA was all up inside her. And that she was compelled by force or imminent threat of force; my third element to rape. She’s going to describe being thrown on the bed and him getting on top of her and him holding a knife on her. And then of course, right, I’ve gotta’ prove to you that he had a deadly, that he possessed a deadly weapon when he did it, that being a knife. You can, right, you can kill people with a knife. And then our criminal confinement; I’m going to present evidence again it’s going to Mr. Farrell that’s identified as the Defendant. [A.B.] is going to describe that he confined her by getting between her and the door and not letting her leave without [A.B.]’s consent. She’ll describe tying to leave, asking to leave and he wouldn’t let her. And again committed with; while armed with a deadly weapon, that being a knife that has some yellow, has some black on it, six (6) inch folding knife. Tr. Vol. II pp. 141-42.
[11] Farrell’s act of blocking the door, thereby confining A.B. to his trailer, exceeded
the bounds of his confinement of her during the rape, and, as such, may be
separately punished. Farrell has failed to establish a reasonable possibility that
the jury relied on the same evidentiary facts to convict him of both rape and
criminal confinement.
[12] We affirm the judgment of the trial court.
May, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 76A05-1705-CR-1002 | November 15, 2017 Page 6 of 6