Michael P. Stafford v. State of Indiana ( 2013 )


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  • Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                 Nov 07 2013, 5:32 am
    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:
    ADAM C. SQUILLER                                 GREGORY F. ZOELLER
    Squiller & Hardy                                 Attorney General of Indiana
    Auburn, Indiana
    JAMES B. MARTIN
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    MICHAEL P. STAFFORD,                             )
    )
    Appellant-Defendant,                      )
    )
    vs.                               )       No. 17A04-1304-CR-178
    )
    STATE OF INDIANA,                                )
    )
    Appellee-Plaintiff.                       )
    APPEAL FROM THE DEKALB SUPERIOR COURT
    The Honorable Monte L. Brown, Judge
    Cause No. 17D02-1203-FA-2
    November 7, 2013
    MEMORANDUM DECISION - NOT FOR PUBLICATION
    SULLIVAN, Senior Judge
    Michael Stafford was sentenced to an aggregate term of 120 years following his
    jury convictions for Class A felony criminal deviate conduct, Class A felony kidnapping,
    Class B felony burglary, Class B felony criminal confinement, and Class B felony
    robbery while armed with a deadly weapon. He now appeals, arguing his convictions for
    kidnapping, burglary, confinement, and robbery should be vacated pursuant to the
    continuing crime doctrine. Alternatively, he argues his sentence is inappropriate. We
    conclude that the continuing crime doctrine does not apply and that his sentence is not
    inappropriate, and we therefore affirm in all respects.
    On July 21, 2009, B.G. was mowing the lawn of her two-acre country home in
    DeKalb County when a man, later identified as Stafford, pulled into her driveway and
    asked about two cars that were displayed for sale. B.G. gave Stafford some details but
    said he would need to talk with her husband. When Stafford asked if her husband was
    home, B.G. told him no but offered to give him his cell phone number. Stafford said he
    did not have a pen. B.G. said she would write down the number for him, ran into the
    house, and scribbled on a piece of paper.
    When she turned around, Stafford was in the doorway holding a knife up near his
    chin. He asked if anyone else was in the house. B.G. told him her two-and-a-half-year-
    old daughter E.G. was in the garage. Stafford said they had to go get her, so they went
    onto the porch and B.G. called E.G.’s name. E.G. started crying as soon as she saw them
    and would not come. Stafford led B.G. down the steps and into the garage with the knife
    at her neck, B.G. picked up E.G., and Stafford asked for another way back into the house.
    B.G. took Stafford to a door in the garage, and Stafford, with the knife still in hand,
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    ordered her to open it. As they walked through the laundry room, B.G. offered Stafford
    money, but he said he would get it himself.
    Once they reached the living room, Stafford duct taped B.G. and E.G. together at
    their waists. He also taped B.G.’s wrists together. He then started taking his pants off
    and told B.G. he was going to rape her. B.G. started screaming. Stafford got on top of
    her, covered her mouth with his right hand, stuck the knife to her throat with his left
    hand, and said, “You need to shut up or I’m going to hurt her.” Tr. p. 242. The duct tape
    was loose, and B.G. was able to pull his hand off her mouth so she could breathe.
    Stafford took them to the master bedroom, and B.G. put E.G. on the bed. Stafford
    forced B.G. to take off her shirt and bra and then ordered her to get on the floor. Stafford
    stood against the nightstand and ordered B.G. to perform oral sex on him. She complied,
    and Stafford ejaculated into her mouth. When he was done, he called B.G. a whore and
    allowed her to put her clothes back on. E.G. was crying on the bed the entire time.
    Stafford took B.G.’s cell phone and home phone. He then made B.G. and E.G. get
    into the bathroom, barricaded the door with a chair, and told B.G. to count to one hundred
    before getting out. He warned her not to tell her husband or the police because he knew
    where she lived. Once B.G. heard Stafford drive away, she got out of the bathroom and
    ran across the street with E.G. to her neighbor’s house. Her neighbor called 911.
    Three months later, B.G. spotted Stafford while she was out shopping with E.G.
    She called the detective on her case, but the police did not arrive until after Stafford had
    left. In March 2012, over two and a half years after the crimes, B.G. was out having
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    dinner with her family when she spotted him again. She called the police. The police
    arrived and identified him, and he was arrested later that month.
    The State charged Stafford with Class A felony criminal deviate conduct (B.G.),
    Class A felony kidnapping (E.G.), Class B felony burglary, Class B felony criminal
    confinement (B.G.), and Class B felony robbery (B.G.). While housed at the DeKalb
    County Jail, Stafford asked fellow inmate Jeremy Coleman to kill B.G. to prevent her
    from testifying against him. He gave Coleman B.G.’s name and address. He also
    provided Coleman with his own address, where Coleman was to obtain a gun and take
    cash, a truck, and a motorcycle as payment.
    Stafford was tried before a jury. He was found guilty on all counts. At the
    sentencing hearing, the trial court made a detailed and thorough sentencing statement
    finding several aggravating and no mitigating circumstances. The court sentenced him to
    forty-five years each for criminal deviate conduct and kidnapping and fifteen years each
    for burglary, confinement, and robbery. All sentences were to be served consecutively
    except for confinement, which was to be served concurrently with the other sentences, for
    an aggregate term of 120 years.
    Stafford raises two issues on appeal: (1) whether his kidnapping, burglary,
    confinement, and robbery convictions violate the continuing crime doctrine, and (2)
    whether his sentence is inappropriate.
    I. CONTINUING CRIME DOCTRINE
    We have described the continuing crime doctrine as a “category of Indiana’s
    prohibition against double jeopardy.” Walker v. State, 
    932 N.E.2d 733
    , 736 (Ind. Ct.
    
    4 Ohio App. 2010
    ). “The continuing crime doctrine essentially provides that actions that are
    sufficient in themselves to constitute separate criminal offenses may be so compressed in
    terms of time, place, singleness of purpose, and continuity of action as to constitute a
    single transaction.” 
    Id. at 735.
    This doctrine does not seek to reconcile the double
    jeopardy implications of two distinct chargeable crimes; rather, it defines those instances
    where a defendant’s conduct amounts only to a single chargeable crime. Boyd v. State,
    
    766 N.E.2d 396
    , 400 (Ind. Ct. App. 2002). The continuing crime doctrine thus prohibits
    multiple convictions for the same continuous offense. See 
    id. Stafford contends
    that his kidnapping, burglary, confinement, and robbery
    convictions violate the continuing crime doctrine because those offenses occurred merely
    to facilitate his crime of criminal deviate conduct. Stafford is incorrect. Although the
    crimes occurred in the same period of time, each offense was a distinct chargeable crime
    arising from a separate criminal act. See 
    Walker, 932 N.E.2d at 737
    (continuing crime
    doctrine “does not apply to factual situations where a defendant is charged with two or
    more distinct chargeable crimes” but may apply where defendant is charged multiple
    times with one offense or where defendant is charged with an offense and a lesser
    included offense).
    Specifically, burglarizing the house, kidnapping E.G. to use her as a hostage,
    confining B.G., forcing B.G. to perform oral sex on him, and robbing B.G. of the phones
    were all separate criminal transgressions. The continuing crime doctrine simply does not
    apply. See 
    id. at 738
    (continuing crime doctrine not applicable—although burglary,
    robbery, and confinement occurred in same series of events, each was distinct chargeable
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    crime); Firestone v. State, 
    838 N.E.2d 468
    , 472 (Ind. Ct. App. 2005) (continuing crime
    doctrine not applicable—although criminal deviate conduct occurred right after rape,
    “[t]he continuity of the actions does not negate the fact that they were completely
    different sexual acts committed at different times”).
    II. INAPPROPRIATE SENTENCE
    Stafford next contends that his sentence is inappropriate. Although a trial court
    may have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4
    and 6 of the Indiana Constitution authorize independent appellate review and revision of
    sentences through Indiana Appellate Rule 7(B), which provides that a court “may revise a
    sentence authorized by statute if, after due consideration of the trial court’s decision, the
    Court finds that the sentence is inappropriate in light of the nature of the offense and the
    character of the offender.” Reid v. State, 
    876 N.E.2d 1114
    , 1116 (Ind. 2007) (citing
    Anglemyer v. State, 
    868 N.E.2d 482
    , 491 (Ind. 2007), clarified on reh’g, 
    875 N.E.2d 218
    (2007)).   The defendant has the burden of persuading us that his sentence is
    inappropriate. 
    Id. We first
    look to the statutory ranges established for the classes of the offenses.
    Stafford was convicted of two Class A felonies and three Class B felonies. The statutory
    range for a Class A felony is between twenty and fifty years, with the advisory sentence
    being thirty years. Ind. Code § 35-50-2-4 (2005). The statutory range for a Class B
    felony is between six and twenty years, with the advisory sentence being ten years. Ind.
    Code § 35-50-2-5 (2005). Stafford was sentenced to forty-five years on each Class A
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    felony and fifteen years on each Class B felony, with all but one Class B felony to be
    served consecutively, for an aggregate term of 120 years.
    We next look to the nature of the offenses and Stafford’s character. As to the
    nature of the offenses, Stafford pretended to be interested in the cars for sale but then
    invaded the home and took B.G. and her toddler daughter E.G. as his victims at
    knifepoint. He ordered them to the floor, told B.G. to “[s]hut the fuck up” when she
    attempted to recite the Lord’s Prayer, Tr. p. 245, tied them together, and said he was
    going to rape B.G. When B.G. started screaming, Stafford got on top of her, obstructed
    her breathing, stuck the knife to her throat, and threatened to hurt E.G. He then moved
    them into a bedroom, ordered B.G. to remove her shirt and bra, and forced B.G. to
    perform oral sex on him while E.G. sat crying on the bed. He ejaculated into B.G.’s
    mouth and called her a whore. Before leaving, Stafford took all the phones, barricaded
    them in a bathroom, and told B.G. to keep quiet because he knew where she lived.
    Stafford’s callous actions do not warrant any revision to his sentence.
    He nonetheless argues that his character as reflected in his criminal history is
    somehow redeeming. While Stafford does not have a lengthy criminal history, neither is
    it insignificant. He has a 1998 conviction for burglary stemming from an incident in
    which he broke into a residence and stole cash and property. While the crime occurred
    about a decade before his current offenses, it is still notable that, like the crimes here, it
    involved burglary. Moreover, he has a conviction for operating a vehicle with an alcohol
    concentration equivalent to 0.15 or more for an incident occurring just a year after he
    victimized B.G. and E.G., and he failed to comply with the terms of his probation in that
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    cause. Most revealing about Stafford’s character, however, is the fact that he tried to
    recruit a fellow jail inmate to put B.G. “6ft under!” so she could not testify against him.
    State’s Sentencing Ex. 4; see Tr. p. 539. He gave Coleman B.G.’s name and address, told
    him where to get a gun, and offered him cash, his truck, and his Harley-Davidson as
    payment for B.G.’s silence.
    Stafford has failed to persuade us that his sentence is inappropriate.
    Affirmed.
    BAKER, J., and BROWN, J., concur.
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