FILED MEMORANDUM DECISION Jul 06 2016, 9:26 am
Pursuant to Ind. Appellate Rule 65(D), CLERK Indiana Supreme Court Court of Appeals this Memorandum Decision shall not be and Tax Court
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Edward Hervey Gregory F. Zoeller Krasutsky & Hervey, LLC Attorney General of Indiana Indianapolis, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Rodrigo Hernandez, July 6, 2016 Appellant-Defendant, Court of Appeals Case No. 49A05-1510-CR-1686 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Angela D. Davis, Judge The Honorable Allan W. Reid, Commissioner Trial Court Cause No. 49G16-1407-FD-33869
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016 Page 1 of 19 [1] Following a bench trial, Rodrigo Hernandez (“Hernandez”) was convicted of
Class D felony criminal confinement1 and Class D felony domestic battery
committed in the presence of a child.2 Hernandez appeals and raises four issues
that we consolidate and restate as:
I. Whether the State presented sufficient evidence to convict Hernandez of Class D felony criminal confinement and Class D felony domestic battery; and
II. Whether Hernandez’s convictions violate double jeopardy principles.
[2] We affirm.3
Facts and Procedural History [3] Over the course of seven to ten years, Hernandez and a woman named
Gabriela Plata (“Plata”) were involved in an “on and off” relationship,
although during that time Hernandez was married to another woman. Tr. at 4-
5, 27. According to Plata, she and Hernandez lived together, at one point, for a
couple of months. She also maintains that they have one daughter together, a
fact which Hernandez neither admits nor denies. That child, who was age six
1 See Ind. Code § 35-42-3-3(a)(1). We note that the statutes under which Hernandez was convicted were amended effective July 1, 2014; however, we apply the statutes that were in effect at the time he committed his offenses in May 2014. 2 See Ind. Code § 35-42-2-1.3(a). 3 Hernandez was also convicted of Class D felony battery resulting in bodily injury, Class A misdemeanor domestic battery, and Class A misdemeanor battery resulting in bodily injury, but those three convictions were merged into the Class D felony domestic battery conviction.
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016 Page 2 of 19 at the time of the incident at issue, lived with Plata and Plata’s other minor
daughter (together, “Daughters”) in an Indianapolis apartment.
[4] On May 30, 2014, around 7:00 or 8:00 p.m., Plata went to Hernandez’s place of
employment, a night club where Hernandez worked as a disc jockey, and she
brought Daughters with her. According to Plata, she went there to confront
Hernandez about a rude and vulgar voicemail that he had left her earlier in the
day; however, Hernandez asserted that she came to his employment to confront
him because he had ignored texts that Plata had sent to him earlier in the day.
Plata and Daughters did not ever leave the car, but Plata exchanged words with
Hernandez, and then she left.
[5] Later that night, at around 2:00 a.m. on May 31, Plata was home and asleep in
her bed. Daughters were also there, sleeping with Plata in her bed. Plata was
awakened by the sound of loud knocking at her front door. She got up, went to
another room, looked out, and upon seeing that it was Hernandez, she started
walking back to her bedroom. However, the knocking continued and was loud,
so she went to the door and opened it slightly. She told him, “[T]here is no
reason for you to be here knocking at my door.” Tr. at 9. She tried to shut the
door, but Hernandez pushed the door open with one hand and pushed her with
the other. Plata fell to the floor, and “at the same time . . . he shut[ ] the door
behind him.” Id. at 11.
[6] When Plata tried to stand up, Hernandez held her to the floor by pushing with
his hand or arm on her left arm. He hit and kicked her while she was on the
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016 Page 3 of 19 ground. She struggled, and when she was able to get herself up, she told
Hernandez to leave, but he sat down in her nearby dining room and laughed at
her, saying, “Look at you, always thinking you’re so tough.” Id. at 13. Plata
could not call the police, as her cell phone remained in her bedroom, and she
was “trying to prevent . . . all of that ending up happening in my room in front
of my [D]aughters.” Id. at 14. Hernandez warned Plata to “be careful,”
stating, “I can kill you myself.” Id. After running his finger across her neck, in
a slicing motion, he left her apartment.
[7] Plata immediately contacted police, who responded and spoke with her, but did
not take any photographs because the officer did not see any visible signs of
injury. After police left, Plata returned to bed, and when she woke in the
morning, Plata was sore. She noticed some scratch marks, redness, and
bruising on her arms and legs, so she took pictures. On Tuesday, June 2, 2014,
Plata applied for and obtained a protective order against Hernandez. While
applying for the protective order, the employee assisting her noticed bruising.
Police thereafter arrived and took pictures of Plata’s arms, back, and legs.
[8] On July 7, 2014, the State charged Hernandez with the following five counts:
Count I, Class D felony criminal confinement; Count II, Class D felony
domestic battery; Count III, Class D felony battery resulting in bodily injury;
Count IV, Class A misdemeanor domestic battery; and Count V, Class A
misdemeanor battery resulting in bodily injury. Hernandez waived his right to
a jury trial.
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016 Page 4 of 19 [9] At the July 24, 2015 bench trial, Plata testified that Hernandez’s knocking at
her door was loud, and she did not want to wake the neighbors or Daughters,
so she opened the door enough to allow her to tell him to leave. She said that,
after he pushed the door open and she fell, he held her to the ground. She
described, “He’s holding me down,” and “I can’t get up.” Id. at 12. Hernandez
kicked Plata in her back, arms, and legs. Plata testified that Hernandez was
“mad and loud.” Id. at 10. She said she was “praying for” Daughters and was
trying to prevent the altercation “from happening in my room,” where
Daughters were asleep. Id. at 13. The pictures that Plata took of herself that
morning when she awoke were admitted into evidence, as were the ones taken
by police on June 2.
[10] Thereafter, Hernandez testified in his defense.4 He explained that Plata came to
his place of employment because she was angry that he had not answered her
earlier text messages. He stated that Daughters were in the car with Plata at his
place of employment, as she angrily spoke to him, and they exchanged heated
words. As to why he went to her apartment at about 2:00 a.m., after he left
work, Hernandez testified, “[B]ecause she left when she was angry and she
drinks and I was worried about her drinking and driving and I was worried
about the [D]aughters.” Id. at 32. Hernandez testified that, contrary to what
Plata had said while testifying, he knocked quietly at her door, one time. He
4 The record reflects that a Spanish interpreter was used during Hernandez’s testimony. Tr. at 34; Appellant’s App. at 28 (“Interpreter services used”).
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016 Page 5 of 19 said that she answered the door quickly, which indicated to him that she had
been awake. Hernandez told her that he “just want[ed] to talk.” Id. at 33. He
testified that he did not enter her apartment right away, explaining that initially
he “waited outside[,]” but then went “into her house [] because she got
aggressive and she was yelling loudly.” Id. Hernandez stated that Plata was
gesturing at him and then “collapsed” or “fell” at the door. Id. at 36. He lifted
her up, they went inside, and he closed the door and sat down. When Plata
started insulting “my wife and daughters,” Hernandez left, slamming the door.
Id. at 37. Hernandez denied ever pushing Plata, holding her down, or kicking
or hitting her. He said that Plata “was the one that was upset” and that he tried
to calm her. Id. at 41.
[11] The trial court took the matter under advisement, later issuing an order, finding,
among other things, “The court finds Mr. Hernandez’[s] testimony not credible
and Ms. Plata’s testimony credible.” Appellant’s App. at 8. The trial court found
Hernandez guilty of all charges, but ordered that Counts II through V merge,
and it entered judgment of conviction on Counts I and II. Hernandez filed a
motion to correct error, alleging that the evidence was insufficient to prove the
charged offenses because Plata’s testimony was not credible, and her pictured
injuries were not consistent with her testimony that Hernandez kicked and hit
her; the trial court denied the motion. Hernandez now appeals.
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016 Page 6 of 19 Discussion and Decision
I. Sufficiency of the Evidence [12] Hernandez claims the evidence was insufficient to convict him of criminal
confinement and felony domestic battery. When reviewing the sufficiency of
the evidence to support a conviction, we must consider only the probative
evidence and reasonable inferences supporting the verdict. Boyd v. State, 889
N.E.2d 321, 325 (Ind. Ct. App. 2008), trans. denied. We do not assess witness
credibility or reweigh the evidence. Id. We consider conflicting evidence most
favorably to the trial court’s ruling. Id. We affirm the conviction unless “no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.” Id. It is not necessary that the evidence overcome every
reasonable hypothesis of innocence. Id. The evidence is sufficient if an
inference may reasonably be drawn from it to support the verdict. Id.
A. Criminal Confinement
[13] Hernandez was convicted of Class D felony criminal confinement. Indiana’s
criminal confinement statute provides, in pertinent part, that:
(a) [a] person who knowingly or intentionally:
(1) confines another person without the other person’s consent; or
(2) removes another person, by fraud, enticement, force, or threat of force, from one (1) place to another;
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016 Page 7 of 19 commits criminal confinement. Except as provided in subsection (b), the offense of criminal confinement is a Class D felony.
Ind. Code § 35-42-3-3; State v. Greene, 16 N.E.3d 416, 419 (Ind. 2014). The
statute encompasses two distinct types of criminal confinement: confinement
by non-consensual restraint and confinement by forcible removal. Greene, 16
N.E.3d at 420-21. Hernandez was charged with and convicted of confinement
by non-consensual restraint.
[14] Hernandez argues that the evidence was insufficient to convict him because
“the State offered no direct evidence that Hernandez restrained Plata’s liberty,”
noting that “at no time did Plata ever testify that she felt confined.” Appellant’s
Br. at 17-18. He suggests that there was no evidence to establish confinement
beyond or separate from the evidence that was used to establish the battery. Id.
at 17. We disagree.
[15] While Plata may not have expressly used the phrase “I felt confined,” she
expressed the confinement by describing it. She testified that Hernandez, after
pushing his way inside her home, shut the door behind him. She asked him to
leave, multiple times, and he would not. He held her down on the floor by
pressing on her left arm, which, because she was positioned on her side, pinned
the right side of her body to the floor. She tried to stand “and pull herself to
safety,” but Hernandez held her down. Tr. at 12. From Plata’s testimony, the
trial court could have reasonably inferred that she was confined. To the extent
that Hernandez argues that that the act of holding down Plata to the floor was
“necessary to effectuate the crime of battery,” we reject that claim. Id. at 18. Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016 Page 8 of 19 He could have kicked, hit, and otherwise battered her without pinning her to
the floor. We find the evidence was sufficient to convict Hernandez of Class D
felony criminal confinement.
B. Felony Domestic Battery
[16] Hernandez was charged with and convicted of Class D felony domestic
battery.5 The offense of domestic battery is governed by Indiana Code section
35-42-2-1.3, which provides:
A person who knowingly or intentionally touches an individual who:
(1) is or was a spouse of the other person;
(2) is or was living as if a spouse of the other person as provided in subsection (c); or
(3) has a child in common with the other person;
in a rude, insolent, or angry manner that results in bodily injury to the person described in subdivision (1), (2), or (3) commits domestic battery, a Class A misdemeanor.
The offense “is a Class D felony if the person who committed the offense . . .
committed the offense in the physical presence of a child less than sixteen (16)
5 Hernandez claims that the evidence was insufficient to convict him on counts II and III (Class D felony domestic battery and Class D felony battery resulting in bodily injury, respectively); however, judgment of conviction was only entered on Count II, and thus, our analysis only concerns that conviction.
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016 Page 9 of 19 years of age, knowing that the child was present and might be able to see or
hear the offense.” Ind. Code § 35-42-2-1.3(b)(2). “Presence” is defined as
knowingly being within either the possible sight or hearing of a child.” True v.
State, 954 N.E.2d 1105, 1111 (Ind. Ct. App. 2011). That is, the child does not
have to actually sense the battery; there only need be the possibility that the
child “might” see or hear it. Id. This court has noted that the word “might”
generally represents a weaker possibility or probability than the word “may.”
Boyd, 889 N.E.2d at 325 (citing American Heritage Dictionary of the English
Language at 1113).
[17] Initially, Hernandez argues that the evidence was not sufficient to convict him
of felony domestic battery because Plata’s testimony was incredibly dubious.6
Under the incredible dubiosity rule,
[i]f a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant’s conviction may be reversed. This is appropriate only where the court has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Application of this rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.
6 Hernandez does not expressly contest that he was in a domestic relationship with Plata or that they have a child together. We further note that this court has recognized that a defendant may be convicted of domestic battery on an individual with whom he or she was in an extramarital relationship. Bowling v. State, 995 N.E.2d 715, 718 (Ind. Ct. App. 2013).
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016 Page 10 of 19 Morell v. State, 933 N.E.2d 484, 492 (Ind. Ct. App. 2010) (quotations and
citations omitted). “[T]he standard for dubious testimony is inherent
contradiction, not contradiction between the testimony of witnesses.” Id.
[18] Hernandez points to nothing inherently improbable or contradictory about
Plata’s testimony. Rather, he claims that Plata’s version of events, describing
what transpired at the apartment, was completely false, maintaining that,
contrary to what she said, he knocked quietly once, she came to the door right
away, they spoke, she collapsed, he lifted her up and got her inside, and he shut
the door only because she was loud and angry. The trial court determined that
Hernandez’s version was not credible and Plata’s version was credible, and we
will not reweigh the evidence or assess witness credibility. Palacios v. State, 926
N.E.2d 1026, 1034 (Ind. Ct. App. 2010). Furthermore, the incredibly dubiosity
rule applies only where “there is a complete lack of circumstantial evidence.”
Id. Here, the State presented pictures taken by Plata the morning after the
incident as well as pictures taken two days later by police, which showed
bruising to Plata’s upper left arm and her left leg and scratches to her neck that
corroborated her testimony. State’s Exs. 8-13. Based on the foregoing, we find
that the incredible dubiosity rule is inapplicable.
[19] Next, Hernandez asserts that the State failed to demonstrate that Daughters
were present in the apartment. However, Plata testified the girls lived with her
at the apartment and were asleep with Plata in her bed that night. Plata
described that she was afraid Hernandez’s knocking and subsequent behavior in
her apartment were going to wake them, and she was “praying for” Daughters
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016 Page 11 of 19 and hoping the altercation would not move to the bedroom where they were
sleeping. Tr. at 13. To the extent that Hernandez argues that there was no
evidence that he knew Daughters were present, we again are not persuaded.
Plata testified that the girls lived with her and that she had an ongoing
relationship with Hernandez for up to ten years; thus it was reasonable for the
trial court to infer that Hernandez knew the girls lived with Plata. Furthermore,
Hernandez explained that the reason he went to Plata’s apartment in the early
morning hours after he got off work was to check on Daughters, stating, “I was
worried about [Plata] drinking and driving and I was worried about the
[D]aughters.” Id. at 32. From these facts, it was reasonable for the trier of fact
to infer that Hernandez knew Daughters, who were under age sixteen, were
present at the apartment at 2:00 a.m.
[20] Hernandez next argues that “the record is void of any evidence that there was
the possibility that the children might see or hear the battery,” as is necessary
for the Class D felony domestic battery conviction. Appellant’s Br. at 11. While
there was no direct evidence of the exact distance from the apartment’s
bedroom, where Daughters were in bed, to the area inside the front door, where
the altercation with Hernandez took place, there was other evidence presented
from which the trial court could have inferred Daughters might have seen or
heard the altercation. Plata and Daughters lived in an apartment. Plata, asleep
in her room, was awakened by Hernandez’s loud and repeated knocking at the
front door, the volume of which was loud enough that it not only woke her up,
but she feared that it might wake up her neighbors as well as Daughters. The
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016 Page 12 of 19 altercation began near the front door and moved to or near the dining room.
Plata testified that after Hernandez was inside, he held her to the ground, while
she struggled to get up and told him repeatedly to leave. After he released his
hold on Plata, he sat in a chair and laughed at her for thinking she was “tough.”
Tr. at 13. According to Hernandez, he “slammed” the door when he left
because Plata was speaking negatively about his wife and children. Id. at 37.
We find that, from the evidence presented, the trial court could have inferred
that Daughters “might be able to see or hear the offense” as required under the
statute.
[21] Hernandez urges that this case is similar to Young v. State, 980 N.E.2d 412, 423
(Ind. Ct. App. 2012), where this court determined that the evidence presented
was insufficient for the jury to conclude that Young committed domestic
battery “knowing that the child was present and might be able to see or hear the
offense” and reversed Young’s Class D felony domestic battery conviction and
remanded with instructions to enter judgment of conviction for Class A
misdemeanor domestic battery. Id. Hernandez asks us to do the same.
However, we find that the facts of Young are distinguishable from those before
us today.
[22] Young and Blanca Medrano (“Mother”) were the parents of two minor
children, a two-year-old and an infant. While at their apartment one morning,
they argued. At the time, a friend named Dulce Gomez (“Gomez”) was at the
apartment, and she saw Young and Mother argue, but she did not observe any
physical contact between Mother and Young. Gomez left the apartment
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016 Page 13 of 19 around 10:30 a.m. About noon, Mother walked to a nearby fire station, crying
and holding an infant. Acting Lieutenant Michael Hochstetler (“Hochstetler”)
spoke with Mother and inquired what was wrong, and he observed she had
bruising on her body. Mother told Hochstetler that her husband, Young, had
beaten her and left with their other child. Mother told Hochstetler that her
bruises were from her husband beating her “at their apartment across the street”
about “15 minutes ago.” Id. at 416. Young was charged with, among other
things, Class D felony domestic battery.
[23] At trial, Mother could not be found and, consequently, did not testify. Gomez
testified that she saw the parties argue, but did not see any physical contact, and
she left at 10:30 a.m. Hochstetler testified that Mother, who arrived at the fire
station around noon, did not tell him where the children were when the
incident happened, nor did he ask her. Id. at 423. The jury found Young
guilty.
[24] On appeal, Young argued that the evidence was insufficient to prove that he
committed the domestic battery “knowing that the child was present and might
be able to see or hear the offense.” Id. This court agreed, observing that
“Gomez left, at the very least, a full hour before the incident occurred,” and
while Hochstetler testified that Mother told him the incident happened about
fifteen minutes prior “at their apartment,” there was no evidence as to precisely
where the incident took place and where the children were during the incident.
Id. Given that “the only evidence as to the location of the incident and of the
children during the incident is the vague preposition ‘at,’” this court held that
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016 Page 14 of 19 the evidence was insufficient for the jury to conclude that Young committed
domestic battery knowing that the child was present and might be able to see or
hear the offense, as is required to elevate the offense to a Class D felony under
Indiana Code 35-42-2-1.3(b)(2). Id.
[25] In contrast to Young, where there was a complete lack of testimony concerning
“where the incident took place and where the children were during the
incident,” the trial court in this case heard Mother testify that she was in her
apartment, asleep in her bed with Daughters, when she was awakened by
Hernandez’s loud knocking at the front door. After Hernandez pushed his way
inside the apartment, a physical struggle ensued. Plata testified that she tried to
prevent the situation from moving to the bedroom. Again, under our standard
of review, we examine whether an inference may reasonably be drawn from the
evidence to support the verdict. Palacios, 926 N.E.2d at 1034. We find that,
here, the trial court reasonably could have inferred that Daughters, who were
asleep in a bedroom of the apartment, “might be able to see or hear the
offense.” Accordingly, the State presented sufficient evidence to support
Hernandez’s Class D felony domestic battery conviction.
II. Double Jeopardy [26] Hernandez argues his convictions violate Indiana’s constitutional prohibition
against double jeopardy. Indiana’s Double Jeopardy Clause (“the Double
Jeopardy Clause”), found in Article 1, Section 14 of the Indiana Constitution,
“was intended to prevent the State from being able to proceed against a person
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016 Page 15 of 19 twice for the same criminal transgression.” Jones v. State, 976 N.E.2d 1271,
1275 (Ind. Ct. App. 2012) (citing Richardson v. State, 717 N.E.2d 32, 49 (Ind.
1999)), trans. denied. Two or more offenses are the “same offense” in violation
of the Double Jeopardy Clause, 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. Id.
[27] Under the “actual evidence” test, the evidence presented at trial is examined to
determine whether each challenged offense was established by separate and
distinct facts. Id. 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 all of the essential elements of a second challenged offense. Id. at
1275-76. The “reasonable possibility” that the fact-finder used the same facts to
support two convictions must be more than a “logical possibility,” and rather, it
“turns on a practical assessment of whether the jury may have latched on to
exactly the same facts for both convictions.” Lee v. State, 892 N.E.2d 1231,
1236 (Ind. 2008). If there is “no sufficiently substantial likelihood” that the jury
used the same evidentiary facts to establish the essential elements of the two
offenses, then the possibility is remote and not reasonable. Hopkins v. State, 759
N.E.2d 633, 640 (Ind. 2001).
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016 Page 16 of 19 [28] The fact that the same evidence may have been used to establish a single
element of each of two offenses does not constitute a double jeopardy violation.
Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002). As long as each conviction
requires proof of at least one unique evidentiary fact, the convictions are not
barred by double jeopardy. Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002).
Whether a conviction violates Indiana’s prohibition against double jeopardy is
a question of law and is reviewed de novo. Jones, 976 N.E.2d at 1275.
[29] The State charged Hernandez with Class D felony criminal confinement by
alleging that he “did knowingly confine [] Plata without the consent of said
person[.]” Appellant’s App. at 4. It charged him with Class D felony domestic
battery by alleging that Hernandez “did knowingly in a rude, insolent, or angry
manner touch [] Plata . . . and further said touching result[ed] in bodily injury
to the other person, specifically: bruising and/or scratch and/or pain” and that
Hernandez “committed said offense in the presence of [either Daughter],” a
child less than sixteen years of age “knowing that the child was present and
might be able to see or hear the offense.” Id. As our Supreme Court has
observed, where the confinement of a victim is greater than that which is
inherently necessary to commit a crime, the confinement is a separate criminal
transgression. See Hopkins, 759 N.E.2d at 641 (where defendant’s confinement
of victims extended beyond what was necessary to rob them, convictions for
robbery and confinement were based on separate facts and did not constitute
double jeopardy).
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016 Page 17 of 19 [30] In this case, the two charged offenses do not share any common essential
elements. Rather, Hernandez claims that his convictions violate the “actual
evidence” test, contending that the evidence used by the trial court to establish
that he touched and injured Plata in a “rude, insolent, or angry manner” was
the same evidence used to establish the offense of criminal confinement.
Appellant’s Br. at 19. However, the State maintains that the evidence used to
support each of Hernandez’s convictions was distinct. We agree.
[31] Here, criminal confinement was proved by evidence that Hernandez pushed
Plata down and pinned her to the floor by putting pressure on her left arm, such
that her right side was pressed to the floor; she attempted to get up, but he
would not release her. Domestic battery was proved by evidence that
Hernandez kicked Plata and also hit her with his hand or hands, which caused
bruising, redness, and injury. That is, the evidence that Hernandez pinned
down Plata and held her to the floor was not necessary to support the battery
conviction.
[32] Based on the record before us, we do not find that there is a reasonable
possibility that the trial court used the same actual evidence to find that
Hernandez committed domestic battery and criminal confinement.
Hernandez’s convictions for Class D felony criminal confinement and Class D
felony domestic battery did not violate the prohibition against double jeopardy.
See Jones, 976 N.E. at 1278 (finding no violation of actual evidence test where
defendant slapped, bit, and choked girlfriend, and he also pushed her to couch,
sat on her, and told her that she “couldn’t get up”); Hardley v. State, 893 N.E.2d
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016 Page 18 of 19 1140, 1145 (Ind. Ct. App. 2008), (finding no violation of actual evidence test
where defendant slapped victim, who fell on mattress, and defendant thereafter
restrained victim on mattress and beat and kicked her), aff’d on other grounds, 905
N.E.2d 399 (Ind. 2009).
[33] Affirmed.
[34] Riley, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1686 | July 6, 2016 Page 19 of 19