Dennis C. Burgher v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: May 3, 2013
• Docket: 27A02-1210-CR-825
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. May 03 2013, 8:20 am

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE: JERRY T. DROOK GREGORY F. ZOELLER Marion, Indiana Attorney General of Indiana

CHANDRA K. HEIN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

DENNIS C. BURGHER, ) ) Appellant-Defendant, ) ) vs. ) No. 27A02-1210-CR-825 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE GRANT SUPERIOR COURT The Honorable Dana J. Kenworthy, Judge Pro Tempore Cause No. 27D02-1206-FB-136

May 3, 2013 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge Dennis Burgher (“Burgher”) was convicted of Class D felony criminal

confinement in Grant Superior Court. He appeals his conviction and argues that the State

presented insufficient evidence to prove that he substantially interfered with the victim’s

liberty.

We affirm.

Facts and Procedural History

On June 14, 2012, Burgher and Jayme Jones (“Jayme”), who were romantically

involved, were staying at Burgher’s mother’s home in Griffith, Indiana. However, Jayme

left the residence that day at the request of Burgher’s mother and left behind her

medication and clothing.

The next day, Burgher’s cousin drove him to Linda Pearce’s home in Swayzee,

Indiana, where Jayme was staying to return her clothing and medication to her. When

Burgher arrived at the residence, he did not immediately deliver Jayme’s personal items

to her, but confronted Jayme about a voicemail Jayme had received from another man.

Burgher then struck Jayme, which caused her to fall into a closet located near the

home’s front door. Burgher got on top of Jayme and continued to hit her. Jayme could

not get away from Burgher and saw that he had a knife. Jayme was able to wrestle the

knife away from him and threw it further into the closet.

Jayme’s friend, Pearce, called 911 after she heard Jayme screaming and saw

Burgher hitting her. Jayme eventually broke free of Burgher and tried to run through the

front door when Burgher grabbed Jayme from behind by her hair and pulled her back into

2 the closet. Burgher then fled the house. However, Burgher was quickly apprehended by

the responding police officers.

On June 18, 2012, Burgher was charged with Class B felony criminal confinement,

Class C felony intimidation, Class D felony residential entry, Class D felony

misdemeanor battery resulting in bodily injury, and Class A misdemeanor battery

resulting in bodily injury. Approximately two months later, a jury trial was held and

Burgher was ultimately found guilty only of Class D felony criminal confinement and

Class A misdemeanor battery resulting in bodily injury. The jury returned not guilty

verdicts on the remaining charges. A sentencing hearing was held on September 17,

2012, and the trial court ordered Burgher to serve an aggregate three-year sentence in the

Department of Correction. Burgher now appeals his criminal confinement conviction.

Discussion and Decision

Burgher argues that the evidence is insufficient to support his Class D felony

criminal confinement conviction. Upon a challenge to the sufficiency of evidence to

support a conviction, we neither reweigh the evidence nor judge the credibility of the

witnesses; instead, we respect the exclusive province of the trier of fact to weigh any

conflicting evidence. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We consider

only the probative evidence and reasonable inferences supporting verdict, and we will

affirm if the probative evidence and reasonable inferences drawn from the evidence could

have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable

doubt. Id.

3 To prove that Burgher committed Class D felony criminal confinement, the State

was required to establish that he knowingly or intentionally confined Jayme without her

consent. See Ind. Code § 35-42-3-3. To confine means “to substantially interfere with

the liberty of a person.” Ind. Code § 35-42-3-1. Burgher argues that he did not

“substantially interfere” with Jayme’s liberty.

The defendant in Hardley v. State, 893 N.E.2d 1140 (Ind. Ct. App. 2008),

summarily aff’d by 905 N.E.2d 399 (Ind. 2009), raised the same argument. In that case,

Hardley became upset because the victim took a cigarette out of his backpack. Hardley

slapped the victim causing her to fall onto a mattress. He then beat her and restrained her

by pinning her down on the mattress. Yet, the victim was able to reach her phone, knock

it off the hook, and dial 911. Our court concluded that Hardley substantially interfered

with the victim’s liberty even though she was able to reach the telephone because

Hardley was holding her down and she could not get off the mattress. In so holding, our

court observed, “[w]e are unaware of any authority holding that complete incapacitation

is required in order to establish a substantial interference with liberty, and decline [to]

impose such a requirement today.” Id. at 1144.

In this case, Burgher hit Jayme causing her to fall into the closet. Jayme testified

that Burgher “got on top of” her and kept hitting her. Tr. p. 275. Jayme tried to get out

of the closet and screamed at Burgher to get off of her. When asked whether Burgher

was on top of her “in such a way that” she could not get away from him, Jayme

responded, “[y]eah . . . I couldn’t get out . . . I couldn’t even turn.” Tr. p. 277. After

Jayme managed to wrestle the knife away from Burgher, she got away from him and ran

4 towards the front door. But Burgher grabbed her hair from behind and pulled her back

into the closet. Two other eyewitnesses testified that Burgher was on top of Jayme while

she lay on the floor of the closet. Tr. pp. 376, 389-90.

The encounter between Jayme and Burgher was brief, but the confinement statute

has no minimum time element. See, e.g., McDonald v. State, 511 N.E.2d 1066, 1068

(Ind. 1987) (affirming a conviction for confinement where the defendant pinned the

victim to the ground and the “entire incident happened in a matter of seconds”). The

State proved that Burgher substantially interfered with Jayme’s liberty when he knocked

her down to the floor of the closet, “got on top of” her, and would not allow her to

remove herself from the closet. For these reasons, we affirm Burgher’s Class D felony

criminal confinement conviction.

Affirmed.

BAKER, J., and MAY, J., concur.