IN THE
Court of Appeals of Indiana FILED Moriah S. Denny, Nov 03 2025, 9:11 am Appellant-Defendant CLERK Indiana Supreme Court Court of Appeals and Tax Court v.
State of Indiana, Appellee-Plaintiff
November 3, 2025 Court of Appeals Case No. 25A-CR-374 Appeal from the Cass Circuit Court The Honorable Stephen R. Kitts II, Judge Trial Court Cause No. 09C01-2309-F3-8
Opinion by Judge Scheele Judges Foley and Kenworthy concur.
Court of Appeals of Indiana | Opinion 25A-CR-374 | November 3, 2025 Page 1 of 11 Scheele, Judge.
Case Summary [1] Moriah S. Denny appeals her convictions for Level 3 felony criminal
confinement and Level 3 felony aggravated battery, arguing that her convictions
violate substantive double jeopardy. Because the two convictions violate double
jeopardy, we remand with instructions to vacate the confinement conviction
and for resentencing on the aggravated battery conviction.
Facts and Procedural History [2] In September 2023, Denny lived with her mother, sixty-five-year-old Vera
Swisher, in Logansport. There was ongoing tension in their relationship. On
September 14, Denny was having a “bad day” and was upset because the tire
on her motorcycle had blown. Tr. Vol. II p. 114. Swisher and Denny also
argued because Denny failed to clean up the yard after her two rottweilers.
[3] After the argument, Swisher turned her back to Denny and began walking up
the stairs in her home. The next thing Swisher remembered was lying on the
floor in the dining room with Denny pinning her down and choking her.
Swisher later said Denny “must have had her knees on, on my shoulders so I
couldn’t move.” Id. at 115. While she was pinned down, Swisher described
Denny’s face as “angry” and “all distorted . . . like she was crazy.” Id. at 114.
Swisher put her hands up to try to get Denny to stop choking her and was
praying for help before she fell unconscious. In a police interview, Denny
admitted that she pulled Swisher down the stairs, punched her, and choked her
Court of Appeals of Indiana | Opinion 25A-CR-374 | November 3, 2025 Page 2 of 11 “causing a seizure and blood and foam to come out of [Swisher’s] mouth. Id. at
198; see State’s Ex. 45 at 11:30-12:25; Tr. Vol. III pp. 40-41.
[4] After rendering Swisher unconscious, Denny went next door and encountered
her brother, who returned to her house with her. At her brother’s urging, Denny
called 9-1-1 and reported that her mother had fallen down the stairs. Medics
arrived and found Swisher across the room, not at the bottom of the stairs.
Swisher’s eyes were open, but she was unresponsive and bleeding from her
mouth. Medics took her straight to a helipad in Logansport, and Swisher was
airlifted to a level 1 trauma hospital in Fort Wayne. There, Swisher was treated
for an injury on the back of her head; pain and multiple bruises on her neck,
chest, face, and upper lip; concussion symptoms; and a laceration on her finger
from Denny biting her. Swisher was in the hospital for five days and continues
to suffer from neck pain and flashback nightmares.
[5] Denny was charged with Level 3 felony aggravated battery, Level 6 felony
strangulation, Level 5 felony domestic battery resulting in serious bodily injury,
and Level 3 felony criminal confinement resulting in serious bodily injury. At
trial, Denny testified and again admitted to choking Swisher and pulling her
down the stairs. However, Denny argued that her actions were taken in self-
defense while Swisher was on top of her during the fight. Denny stated that she
was reaching up and choking Swisher because Swisher was trying to gouge her
eyes out. Then, Denny said she rolled Swisher off her after Swisher lost
consciousness.
Court of Appeals of Indiana | Opinion 25A-CR-374 | November 3, 2025 Page 3 of 11 [6] During its closing argument, the State argued that Denny “chased [Swisher] up
the stairs, grabbed her, threw her down the stairs, mounted her, and strangled
her within seconds of her life.” Tr. Vol. III p. 71. The State also noted that
Swisher was located by medics multiple feet away from the stairs where she was
“launched, apparently, or drug[.]” Id. at 74. Denny’s counsel then argued the
only evidence of confinement was Swisher’s disputed claim that Denny was on
top of her pinning Swisher down during the fight. The State did not dispute
Denny’s characterization of that evidence in its rebuttal. The jury found Denny
guilty as charged.
[7] At sentencing, the trial court vacated Denny’s convictions for strangulation and
domestic battery. During a discussion regarding sentencing for the aggravated
battery and criminal confinement convictions, the court questioned whether the
convictions were “distinct enough” to be consecutive. Id. at 124. The State
conceded Denny’s actions were “a continuous act . . . because it is” but argued
the sentences should be consecutive because both were “crimes of violence[.]”
Id. The court sentenced Denny to consecutive terms of ten years executed in the
Indiana Department of Correction for the aggravated battery conviction and
four years suspended for the criminal confinement conviction. Denny now
appeals.
Discussion and Decision [8] Denny argues her convictions for aggravated battery and criminal confinement
constitute double jeopardy. We review double-jeopardy claims de novo.
Court of Appeals of Indiana | Opinion 25A-CR-374 | November 3, 2025 Page 4 of 11 McGuire v. State, 263 N.E.3d 745, 749 (Ind. Ct. App. 2025), trans. denied. Where,
as here, the claim involves a single criminal transaction that violates multiple
statutes with common elements, we apply the analysis laid out in Wadle v. State,
151 N.E.3d 227, 237 (Ind. 2020).
[9] First, we determine whether “the language of either statute clearly permits
multiple punishment, either expressly or by unmistakable implication[.]” Id. at
248. If so, the inquiry is at an end and there is no double-jeopardy violation. Id.
Here, the parties agree that neither the aggravated battery statute nor the
criminal confinement statute permits multiple punishments. As such, we turn to
Wadle’s next step.
[10] Second, we determine whether the offenses are included “either inherently or as
charged[.]” Id. If neither offense is included in the other, again the inquiry ends
and there is no double-jeopardy violation. Id.
Included offenses come in two forms: inherently included offenses and offenses that are included as charged. An offense is inherently included if it meets the definition of “included offense” in Indiana Code Section 35-31.5-2-168. An offense is included as charged (or “factually included”) if the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser included offense. In determining whether offenses are included as charged, we examine only the facts as presented on the face of the charging instrument.
McGuire, 263 N.E.3d at 749-50 (quotations omitted).
Court of Appeals of Indiana | Opinion 25A-CR-374 | November 3, 2025 Page 5 of 11 [11] Denny does not contend that the offenses of aggravated battery and criminal
confinement resulting in serious bodily injury are inherently included offenses.
Indeed, the offenses fail to meet the statutory definition of an “included
offense” under Indiana Code section 35-31.5-2-168, as each crime includes an
element the other does not. However, Denny argues the offenses are factually
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IN THE
Court of Appeals of Indiana FILED Moriah S. Denny, Nov 03 2025, 9:11 am Appellant-Defendant CLERK Indiana Supreme Court Court of Appeals and Tax Court v.
State of Indiana, Appellee-Plaintiff
November 3, 2025 Court of Appeals Case No. 25A-CR-374 Appeal from the Cass Circuit Court The Honorable Stephen R. Kitts II, Judge Trial Court Cause No. 09C01-2309-F3-8
Opinion by Judge Scheele Judges Foley and Kenworthy concur.
Court of Appeals of Indiana | Opinion 25A-CR-374 | November 3, 2025 Page 1 of 11 Scheele, Judge.
Case Summary [1] Moriah S. Denny appeals her convictions for Level 3 felony criminal
confinement and Level 3 felony aggravated battery, arguing that her convictions
violate substantive double jeopardy. Because the two convictions violate double
jeopardy, we remand with instructions to vacate the confinement conviction
and for resentencing on the aggravated battery conviction.
Facts and Procedural History [2] In September 2023, Denny lived with her mother, sixty-five-year-old Vera
Swisher, in Logansport. There was ongoing tension in their relationship. On
September 14, Denny was having a “bad day” and was upset because the tire
on her motorcycle had blown. Tr. Vol. II p. 114. Swisher and Denny also
argued because Denny failed to clean up the yard after her two rottweilers.
[3] After the argument, Swisher turned her back to Denny and began walking up
the stairs in her home. The next thing Swisher remembered was lying on the
floor in the dining room with Denny pinning her down and choking her.
Swisher later said Denny “must have had her knees on, on my shoulders so I
couldn’t move.” Id. at 115. While she was pinned down, Swisher described
Denny’s face as “angry” and “all distorted . . . like she was crazy.” Id. at 114.
Swisher put her hands up to try to get Denny to stop choking her and was
praying for help before she fell unconscious. In a police interview, Denny
admitted that she pulled Swisher down the stairs, punched her, and choked her
Court of Appeals of Indiana | Opinion 25A-CR-374 | November 3, 2025 Page 2 of 11 “causing a seizure and blood and foam to come out of [Swisher’s] mouth. Id. at
198; see State’s Ex. 45 at 11:30-12:25; Tr. Vol. III pp. 40-41.
[4] After rendering Swisher unconscious, Denny went next door and encountered
her brother, who returned to her house with her. At her brother’s urging, Denny
called 9-1-1 and reported that her mother had fallen down the stairs. Medics
arrived and found Swisher across the room, not at the bottom of the stairs.
Swisher’s eyes were open, but she was unresponsive and bleeding from her
mouth. Medics took her straight to a helipad in Logansport, and Swisher was
airlifted to a level 1 trauma hospital in Fort Wayne. There, Swisher was treated
for an injury on the back of her head; pain and multiple bruises on her neck,
chest, face, and upper lip; concussion symptoms; and a laceration on her finger
from Denny biting her. Swisher was in the hospital for five days and continues
to suffer from neck pain and flashback nightmares.
[5] Denny was charged with Level 3 felony aggravated battery, Level 6 felony
strangulation, Level 5 felony domestic battery resulting in serious bodily injury,
and Level 3 felony criminal confinement resulting in serious bodily injury. At
trial, Denny testified and again admitted to choking Swisher and pulling her
down the stairs. However, Denny argued that her actions were taken in self-
defense while Swisher was on top of her during the fight. Denny stated that she
was reaching up and choking Swisher because Swisher was trying to gouge her
eyes out. Then, Denny said she rolled Swisher off her after Swisher lost
consciousness.
Court of Appeals of Indiana | Opinion 25A-CR-374 | November 3, 2025 Page 3 of 11 [6] During its closing argument, the State argued that Denny “chased [Swisher] up
the stairs, grabbed her, threw her down the stairs, mounted her, and strangled
her within seconds of her life.” Tr. Vol. III p. 71. The State also noted that
Swisher was located by medics multiple feet away from the stairs where she was
“launched, apparently, or drug[.]” Id. at 74. Denny’s counsel then argued the
only evidence of confinement was Swisher’s disputed claim that Denny was on
top of her pinning Swisher down during the fight. The State did not dispute
Denny’s characterization of that evidence in its rebuttal. The jury found Denny
guilty as charged.
[7] At sentencing, the trial court vacated Denny’s convictions for strangulation and
domestic battery. During a discussion regarding sentencing for the aggravated
battery and criminal confinement convictions, the court questioned whether the
convictions were “distinct enough” to be consecutive. Id. at 124. The State
conceded Denny’s actions were “a continuous act . . . because it is” but argued
the sentences should be consecutive because both were “crimes of violence[.]”
Id. The court sentenced Denny to consecutive terms of ten years executed in the
Indiana Department of Correction for the aggravated battery conviction and
four years suspended for the criminal confinement conviction. Denny now
appeals.
Discussion and Decision [8] Denny argues her convictions for aggravated battery and criminal confinement
constitute double jeopardy. We review double-jeopardy claims de novo.
Court of Appeals of Indiana | Opinion 25A-CR-374 | November 3, 2025 Page 4 of 11 McGuire v. State, 263 N.E.3d 745, 749 (Ind. Ct. App. 2025), trans. denied. Where,
as here, the claim involves a single criminal transaction that violates multiple
statutes with common elements, we apply the analysis laid out in Wadle v. State,
151 N.E.3d 227, 237 (Ind. 2020).
[9] First, we determine whether “the language of either statute clearly permits
multiple punishment, either expressly or by unmistakable implication[.]” Id. at
248. If so, the inquiry is at an end and there is no double-jeopardy violation. Id.
Here, the parties agree that neither the aggravated battery statute nor the
criminal confinement statute permits multiple punishments. As such, we turn to
Wadle’s next step.
[10] Second, we determine whether the offenses are included “either inherently or as
charged[.]” Id. If neither offense is included in the other, again the inquiry ends
and there is no double-jeopardy violation. Id.
Included offenses come in two forms: inherently included offenses and offenses that are included as charged. An offense is inherently included if it meets the definition of “included offense” in Indiana Code Section 35-31.5-2-168. An offense is included as charged (or “factually included”) if the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser included offense. In determining whether offenses are included as charged, we examine only the facts as presented on the face of the charging instrument.
McGuire, 263 N.E.3d at 749-50 (quotations omitted).
Court of Appeals of Indiana | Opinion 25A-CR-374 | November 3, 2025 Page 5 of 11 [11] Denny does not contend that the offenses of aggravated battery and criminal
confinement resulting in serious bodily injury are inherently included offenses.
Indeed, the offenses fail to meet the statutory definition of an “included
offense” under Indiana Code section 35-31.5-2-168, as each crime includes an
element the other does not. However, Denny argues the offenses are factually
included. “[W]hen assessing whether an offense is factually included, a court
may examine only the facts as presented on the face of the charging
instrument.” A.W. v. State, 229 N.E.3d 1060, 1067 (Ind. 2024) (emphasis in
original). “This includes examining the ‘means used to commit the crime
charged,’ which must ‘include all of the elements of the alleged lesser included
offense.’” Id. (quoting Wadle, 151 N.E.3d at 251).
[12] Where ambiguities exist in a charging instrument about whether one offense is
factually included in another, courts must construe those ambiguities in the
defendant’s favor and find a presumptive double-jeopardy violation, although
the State can later rebut this presumption. Id. at 1069. This is a protection for
the defendant, as otherwise the State “could unilaterally decide how much to
include (or not include) in the charging instrument, which could decisively
determine the outcome of a double jeopardy claim.” Id.
[13] Turning to the charging information here, Count I, aggravated battery, reads as
follows:
The undersigned, being duly sworn upon his oath, says that on or about September 14, 2023 in Cass County, State of Indiana, Moriah S. Denny did knowingly or intentionally inflicts [sic]
Court of Appeals of Indiana | Opinion 25A-CR-374 | November 3, 2025 Page 6 of 11 injury on Vera Swisher that creates a substantial risk of death, contrary to the form of the statutes in such cases made and provided by I.C. 35-42-2-1.5(2), and against the peace and dignity of the State of Indiana.
App. Vol. II p. 174 (emphasis omitted). The charging information for Count IV,
criminal confinement, reads as follows:
The undersigned, being duly sworn upon his oath, says that on or about September 14, 2023 in Cass County, State of Indiana, Moriah S. Denny did knowingly or intentionally confine Vera Swisher without the consent of Vera Swisher, said act resulting in serious bodily injury to Vera Swisher, contrary to the form of the statutes in such cases made and provided by I.C. 35-42-3-3(a) and I.C. 35-42-3-3(b)(3)(B), and against the peace and dignity of the State of Indiana.
Id. at 175.
[14] Other panels of our Court recently addressed similar situations in Delgado v.
State, 24A-CR-1675, 2025 WL 441818 (Ind. Ct. App. Feb. 10, 2025) and in
Chase v. State, 24A-CR-2954, 2025 WL 2303940 (Ind. Ct. App. Aug. 11, 2025),
remand instructions clarified on reh’g, 24A-CR-2954, 2025 WL 2673268 (Ind. Ct.
App. Sept. 18, 2025). In Delagado, the defendant was charged with criminal
confinement (requiring defendant to have confined the victim) and domestic
battery (requiring defendant to have touched the family-member victim in a
rude, insolent, or angry manner). In Chase, the defendant was charged with
criminal confinement and domestic battery while armed with a deadly weapon
(requiring the defendant to have touched family-member victim in a rude,
Court of Appeals of Indiana | Opinion 25A-CR-374 | November 3, 2025 Page 7 of 11 insolent, or angry manner while armed with a deadly weapon). The charging
information in both cases tracked the statutory language and lacked specific
facts to make clear that the bases for each of the offenses were different. See e.g.,
Bradshaw v. State, 239 N.E.3d 864, 868 (Ind. Ct. App. 2024) (charging
information is ambiguous where it simply tracked statutory language for both
offenses and did “not demonstrate that the two offenses were separate offenses,
as the means used to commit the greater offense could have included all of the
elements of the alleged lesser offense[.]”) Because it was conceivable from the
face of the charging information that the means to commit the confinement
were entirely included in all the elements of domestic battery, the charging
information in each case was deemed ambiguous. Delgado, 24A-CR-1675, 2025
WL 441818 at *4 (defendant’s confinement may have been committed by the
touching in a rude, insolent or angry manner); Chase, 24A-CR-2954, 2025 WL
2303940 at *4.
[15] Similarly, here, the charging information for aggravated battery and criminal
confinement simply tracks the statutory language. Because of the way the
information was drafted, specifically the lack of factual detail, one cannot
necessarily tell whether the means used to commit the confinement was
something other than aggravated battery. Hypothetically, without specific facts,
it is conceivable that Denny pinned down Swisher by means of inflicting injury
that created a substantial risk of death, such as by choking. In other words, it is
entirely possible on the face of this charging information that the knowing or
intentional confinement alleged in the criminal confinement count was
Court of Appeals of Indiana | Opinion 25A-CR-374 | November 3, 2025 Page 8 of 11 committed by the knowing or intentional infliction of injury alleged in the
aggravated battery count. This ambiguity creates a rebuttable presumption of a
substantive double-jeopardy violation. See A.W., 229 N.E.3d at 1070.
[16] Thus, we proceed to the final step and give the State the opportunity to rebut
the presumptive double-jeopardy violation. To do so, “the State must
demonstrate that it made clear to the fact-finder at trial that the apparently
included charge was supported by independent evidence such that the State
made a distinction between what would otherwise be two of the same offenses.”
Eversole v. State, 251 N.E.3d 604, 608 (Ind. Ct. App. 2025) (quotation omitted),
trans. denied. To make this determination, we look to whether the defendant’s
actions were “so compressed in terms of time, place, singleness of purpose, and
continuity of action as to constitute a single transaction.” Wadle, 151 N.E.3d at
249.
[17] We find a comparison of the facts in Delgado and Chase to be particularly helpful
here. In Delgado, the defendant confined the family-member victim to their
residence for an hour and committed acts of domestic battery throughout that
time. 24A-CR-1675, 2025 WL 441818 at *5. In closing argument, the State
noted that the defendant’s confinement was “not just down on the floor when he
attacked her but ... for a whole hour ....” Id. (emphasis in original) (citation to
the record omitted). This Court found the two acts were sufficiently separate in
time and purpose to support both convictions. Id. Conversely, in Chase, the
defendant confined the family-member victim by holding a knife to her throat
and threatened to kill her if she tried to leave. 24A-CR-2954, 2025 WL 2303940
Court of Appeals of Indiana | Opinion 25A-CR-374 | November 3, 2025 Page 9 of 11 at *5. There, the act that proved domestic battery by means of a deadly weapon
was holding the knife to the victim’s throat; in the same moment, the defendant
confined the victim by threatening to kill her if she tried to leave. Id. The State
did not present any evidence or argument that the two crimes were separated by
time, place, or purpose. Id. This Court, therefore, reversed the domestic battery
charge. Id.
[18] The facts as presented at trial in the instant case are similar to those in Chase,
making clear that this was a single transaction. During closing, the State argued
that Denny “chased [Swisher] up the stairs, grabbed her, threw her down the
stairs, mounted her, and strangled her within seconds of her life.” Tr. Vol. III p.
71. Although the State also mentioned that medics located Swisher multiple
feet away from the stairs where she was “launched, apparently, or drug,” the
State did not explain how any of the facts showed the confinement was a
separate act from the aggravated battery. Id. at 74. The only evidence of
confinement offered was that Denny pinned Swisher on the floor during the
battery. In the same moment, Denny choked Swisher until she bled and foamed
from the mouth and lost consciousness. The State did not rebut this
characterization of the facts. There is no evidence that the confinement
occurred for another purpose or in a separate time or place than the infliction of
injury during the battery.
[19] Based on the evidence and arguments presented, the confinement charge is
factually included in the aggravated battery charge. As such, we agree with
Denny that the court violated her substantive double-jeopardy rights by entering
Court of Appeals of Indiana | Opinion 25A-CR-374 | November 3, 2025 Page 10 of 11 judgments of conviction for both Level 3 aggravated battery and Level 3
criminal confinement resulting in bodily injury. We thus remand for vacation of
the criminal confinement conviction and for resentencing on the aggravated
battery conviction.
Conclusion
[20] We affirm Denny’s conviction for aggravated battery but reverse her conviction
for Level 3 criminal confinement and remand for vacation of that conviction
and for resentencing.
[21] Affirmed in part, reversed in part, and remanded with instruction.
Foley, J., and Kenworthy, J., concur.
ATTORNEY FOR APPELLANT Mark K. Leeman Leeman Law Offices Logansport, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General
Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 25A-CR-374 | November 3, 2025 Page 11 of 11