Irving Madden v. State of Indiana ( 2021 )

FILED
Jan 12 2021, 8:30 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Denise L. Turner Theodore E. Rokita
DTurner Legal LLC Attorney General of Indiana
Indianapolis, Indiana Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Irving Madden, January 12, 2021
Appellant-Defendant, Court of Appeals Case No.
20A-CR-196
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Shatrese M.
Appellee-Plaintiff, Flowers, Judge
Trial Court Cause No.
49G02-1810-F2-37562
Robb, Judge.
Court of Appeals of Indiana | Opinion 20A-CR-196 | January 12, 2021 Page 1 of 26
Case Summary and Issues
[1] Following a jury trial, Irving Madden was convicted of two counts of
aggravated battery, Level 3 felonies; kidnapping, a Level 5 felony; and
kidnapping for ransom and criminal confinement, Level 2 felonies. The trial
court sentenced Madden to an aggregate of forty years. Madden appeals and
raises two issues which we expand, reorder, and restate as: (1) whether there is
sufficient evidence to support his kidnapping for ransom conviction; (2)
whether his convictions violate the continuous crime doctrine; (3) whether the
trial court abused its discretion by imposing consecutive sentences; and (4)
whether his sentence is inappropriate in light of the nature of the offenses and
his character. We conclude there is sufficient evidence to support Madden’s
kidnapping for ransom conviction but Madden’s additional convictions for
kidnapping and criminal confinement must be vacated. We also conclude that
the trial court did not abuse its discretion by imposing consecutive sentences
and Madden’s sentence is not inappropriate. We affirm in part, reverse in part,
and remand.
Facts and Procedural History
[2] The facts most favorable to the verdicts are as follows. In October of 2018,
A.C. was in a relationship with Quantavious Jones. Madden was a friend or
relative of Jones. On October 23, Jones told A.C. he planned to send her
something in the mail the next day; A.C. agreed to accept the package. The
next day, Jones called A.C. and asked whether she had received the package.
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A.C. said no and Jones said he was coming to pick her up. When Jones
arrived, A.C. got in the car and the two discussed the package. Jones “told
[A.C.] that [they] were going to go to the UPS man and see if he possibly had it
or delivered it to the wrong address[.]” Transcript of Evidence, Volume 2 at
199. They located the UPS delivery driver and asked whether the package had
been delivered. The UPS driver stated the package had been delivered. Jones
asked the driver whether he had seen A.C. that day and he responded he had
not.
[3] Jones then asked for A.C.’s phone. A.C. complied and Jones searched the
phone. While driving, Jones called Madden and told him that A.C. lost the
package and they were coming to Madden’s house. When A.C. realized they
were going to Madden’s house, she became concerned and “realize[d]
something’s up[.]” Id. at 201. A.C. tried to get out of the car but Jones grabbed
her shirt and held her, preventing her from getting out. When they arrived at
Madden’s house, Jones told A.C. to get out of the car, but she refused because
she “didn’t feel safe.” Id. at 204. Madden came out to the car, grabbed A.C. by
the shirt, pulled her from the car, and took her into the basement of the house.
Jones went inside with Madden and A.C.
[4] When they got to the basement, Jones handcuffed A.C. to a pipe. A.C. tried to
get out of the cuffs, eventually succeeded, and reached for a phone that was in
front of her. Jones grabbed A.C. and began “choking [her] to the ground.” Id.
at 206. A.C. could not breathe and felt as if she were about to lose
consciousness. Madden then brought out a chair and A.C. was handcuffed to
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the chair in the kitchen/bar area of the basement. Madden and Jones began
questioning A.C. about the package. Madden stood behind her while Jones
stood in front of her. Madden then threw a pot of hot water on A.C.’s “back,
right side[,]” and she later described the pain as “worse than ten.” Id. at 208.
Still handcuffed, A.C. fell to the ground and “tried to scoot away into a corner”
as Madden began hitting her in the head with the pot. Id. Madden stomped on
A.C.’s chest and face and then began punching her until Jones pulled Madden
off of her.
[5] A.C. stood up and went into the bathroom alone and Jones closed the door.
Once A.C. was in the bathroom, she was instructed to take off her clothes.1 As
she began to remove her clothes, Madden opened the bathroom door and threw
more hot water on her. Madden instructed A.C. to get in the bathtub. She
complied. The men turned the shower on and ran hot water over A.C.
Madden then began kicking and hitting A.C., causing her to go in and out of
consciousness. At some point while the three were in the bathroom, Jones used
A.C.’s phone to call people and ask about the package.
[6] After Madden beat A.C. for several minutes, he and Jones took her back to the
kitchen area and discussed what to do with her. Madden asked Jones “if he
could shoot [A.C.] or kill [her,]” but Jones said to let her go. Id. at 213.
Madden gave A.C. some clothes and she got dressed. A.C. recalled seeing
1
A.C. was unable to recall whether Madden or Jones told her to take her clothes off. Id. at 209.
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Madden with a gun in his hand while they were in the basement. The three of
them went upstairs. Madden left to put gas in the car and Jones and A.C. went
to the kitchen where Jones gave her something to drink. Jones and A.C. then
went to the garage because A.C. was “burning” and “wanted [ ] cool air.” Id. at
214. Jones allowed A.C. to call her family and specifically told her she needed
to tell her family to give them $3,000 to let her go. A.C. spoke to three of her
cousins, as well as a detective one of her cousins had three-way called. The
detective asked where A.C. was but she was unable to tell him because Jones
hung up the phone.
[7] At some point, Madden returned and A.C. and Jones got into the car with him.
A.C. sat in the front passenger seat and Madden told her to “lay back so no one
can see” her. Id. at 217. Madden dropped A.C. off in a neighborhood where
she did not know anyone. Before A.C. exited the car, Madden told her to “tell
the police that [she] was off drugs and that [she] took a Molly and . . . woke up
like that and to remember his face.” Id. A.C. walked up to a stranger’s house,
knocked on the door, and asked the individual who answered to call her cousin.
The stranger contacted A.C.’s cousin. Another cousin picked A.C. up and took
her to the hospital. A.C. was bleeding from her mouth, ear, and nose. Her face
was swollen, and she had severe burns. As a result, A.C. has undergone several
surgeries and rehabilitative therapy. A.C. also has permanent scarring.
[8] On October 29, the State charged Madden with robbery resulting in serious
bodily injury, a Level 2 felony; criminal confinement, a Level 3 felony; three
counts of aggravated battery, Level 3 felonies; kidnapping, a Level 5 felony;
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battery resulting in bodily injury, a Level 5 felony; battery by means of a deadly
weapon, a Level 5 felony; and pointing a firearm, a Level 6 felony. See
Appellant’s Appendix, Volume II at 28-30. The State later amended the
charging information to add kidnapping for ransom and criminal confinement,
Level 2 felonies. Upon the State’s motion, Madden’s robbery resulting in
serious bodily injury, battery by means of a deadly weapon, pointing a firearm,
and one of the aggravated battery charges were dismissed. A jury trial was held
December 9 to 11, 2019. Madden and Jones were tried together. The jury
found Madden guilty of two counts of aggravated battery, Level 3 felonies;
kidnapping with bodily injury, a Level 5 felony; kidnapping for ransom, a Level
2 felony; and criminal confinement with intent to obtain ransom, a Level 2
felony.
[9] A sentencing hearing was held on January 6, 2020. The trial court sentenced
Madden to an aggregate of forty years in the Indiana Department of Correction:
ten years for each battery conviction to run consecutively to each other; twenty
years for Level 2 kidnapping and twenty years for Level 2 confinement to run
concurrently to each other but consecutively to the battery sentences; and four
years for Level 5 kidnapping to run concurrently to all other sentences. See Tr.,
Vol. 4 at 150-51; Appellant’s App., Vol. II at 144-45. Madden now appeals.
Discussion and Decision
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I. Sufficiency of the Evidence
[10] Madden challenges the sufficiency of the evidence supporting his kidnapping
for ransom conviction, a Level 2 felony.
A. Standard of Review
[11] When reviewing the sufficiency of the evidence required to support a
conviction, we do not reweigh the evidence or judge the credibility of the
witnesses. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Instead, we
consider only the evidence supporting the verdict and any reasonable inferences
that can be drawn therefrom. Morris v. State, 114 N.E.3d 531, 535 (Ind. Ct.
App. 2018), trans. denied. We consider conflicting evidence most favorably to
the verdict. Silvers v. State, 114 N.E.3d 931, 936 (Ind. Ct. App. 2018). “We will
affirm if there is substantial evidence of probative value such that a reasonable
trier of fact could have concluded the defendant was guilty beyond a reasonable
doubt.” Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). The evidence need
not overcome every reasonable hypothesis of innocence; it is sufficient if an
inference may reasonably be drawn from the evidence to support the verdict.
Silvers, 114 N.E.3d at 936. The uncorroborated testimony of one witness may
be sufficient by itself to sustain a conviction on appeal. Toney v. State, 715
N.E.2d 367, 369 (Ind. 1999).
B. Kidnapping for Ransom
[12] Madden did not make the ransom demand himself; therefore, the State
proceeded on an accomplice liability theory on this charge. “A person who
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knowingly or intentionally removes another person, by fraud, enticement, force,
or threat of force, from one place to another” with the intent to obtain ransom
commits kidnapping, a Level 2 felony. Ind. Code § 35-42-3-2(a), (b)(3)(A)
(2014). Under Indiana’s accomplice liability statute, a person “who knowingly
or intentionally aids, induces, or causes another person to commit an offense
commits that offense[.]” Ind. Code § 35-41-2-4. It is not necessary that the
evidence show the accomplice personally participated in the commission of
each element of the offense. Pugh v. State, 52 N.E.3d 955, 966 (Ind. Ct. App.
2016), trans. denied. A person who aids another in committing a crime is just as
guilty as the actual perpetrator. Id. “[T]he accomplice is criminally responsible
for everything which follows incidentally in the execution of the common
design, as one of its natural and probable consequences, even though it was not
intended as part of the original design or common plan[.]” Griffin v. State, 16
N.E.3d 997, 1003 (Ind. Ct. App. 2014) (internal quotation omitted).
[13] To determine whether a defendant aided another in the commission of the
crime, the fact-finder considers: (1) presence at the crime scene; (2)
companionship with another engaged in a crime; (3) failure to oppose the
commission of the crime; and (4) the course of conduct before, during, and after
the occurrence of the crime. Wright v. State, 950 N.E.2d 365, 368 (Ind. Ct. App.
2011). As a general rule, mere presence at the scene of the crime is not itself
sufficient to allow an inference of participation in the crime. Griffin v. State, 413
N.E.2d 293, 295 (Ind. Ct. App. 1980). Such presence may, however, be
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considered with other evidence as a factor in determining a defendant’s guilt.
Id.[14] Here, all four factors demonstrate that Madden actively participated in A.C.’s
kidnapping for ransom. When Jones and A.C. arrived at Madden’s house,
Madden physically grabbed A.C., pulled her from the vehicle, and took her into
the basement, where Jones handcuffed her to a pipe. Later, after A.C. got out
of the handcuffs, Madden brought out a chair and A.C. was handcuffed to the
chair. Madden threw hot water on A.C., beat her head with a pot, stomped on
her, and punched her. Once A.C. was in the bathroom, Madden again threw
hot water on her and beat her. While they were in the bathroom, Jones called
several people and asked about the package. Jones and Madden discussed what
to do with A.C. and Madden asked if he could kill her, but Jones said she
should be let go. When the three went upstairs, Madden left to get gas and
Jones instructed A.C. to call her family and demand $3,000 to let her go. When
Madden returned, they drove to a neighborhood and dropped A.C. off.
[15] Madden was present during the crime and actively participated in the
kidnapping in an attempt to get money; he and Jones were clearly companions,
working together to kidnap A.C. and seek ransom in exchange for her freedom;
Madden never opposed the crime; and his conduct before, during, and after the
crime only demonstrate his active participation in the crime with Jones. The
fact that Madden briefly left the house to get gas and was not physically present
when Jones instructed A.C. to call her family and ask for money does not
relieve Madden of liability. Jones’ seeking ransom was a natural and probable
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consequence of their plan to kidnap A.C. As stated above, accomplice liability
does not require the individual to participate in every aspect or element of the
crime. Pugh, 52 N.E.3d at 966. And the accomplice is responsible for all
natural and probable consequences that follow the execution of the common
plan regardless of whether or not it was initially intended. Griffin, 16 N.E.3d at
1003. We conclude there is sufficient evidence from which a reasonable jury
could infer Madden knowingly or intentionally kidnapped A.C. with the intent
to obtain ransom. Madden’s conviction for Level 2 felony kidnapping is
affirmed.
II. Double Jeopardy
[16] Next, we address Madden’s claim that his convictions for two counts of
aggravated battery and his convictions for two counts of kidnapping and
criminal confinement violate the continuous crime doctrine.
[17] Before briefs were filed in this case, our supreme court issued two decisions that
changed Indiana’s precedent concerning double jeopardy claims based on
multiple convictions in a single prosecution. Wadle v. State, 151 N.E.3d 227(Ind. 2020); Powell v. State, 151 N.E.3d 256 (Ind. 2020). “The Court
distinguished these claims of ‘substantive double jeopardy’ from claims of
‘procedural double jeopardy’ – where a defendant is charged with the same
offense in successive prosecutions.” Hill v. State, 157 N.E.3d 1225, 1228 (Ind.
Ct. App. 2020). Prior to Wadle and Powell, we reviewed substantive double
jeopardy claims under the constitutional tests from Richardson v. State, 717
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N.E.2d 32 (Ind. 1999), namely the “actual evidence” and “statutory elements”
tests, as well as other rules of statutory construction and common law. Wadle,
151 N.E.3d at 243. However, Wadle overruled the Richardson constitutional
tests and set forth a new framework for analyzing substantive double jeopardy
claims. Id. at 235.
[18] Madden filed his brief after Wadle and Powell were decided but did not address
the changes these two cases brought to double jeopardy jurisprudence, even in
his reply brief after the State specifically addressed those cases. Madden
analyzes his claims under the continuous crime doctrine, a common law
formulation. However, a panel of this court recently held that Wadle and Powell
“not only overruled the constitutional substantive double jeopardy test in
Richardson, they also swallowed statutory and common law to create one
unified framework for substantive double jeopardy claims – including the
continuous crime doctrine.” Jones v. State, 159 N.E.3d 55, 61 (Ind. Ct. App.
2020), trans. pending; see also Hill, 157 N.E.3d at 1229. We agree. Therefore, we
evaluate Madden’s claims under the framework set forth in Wadle and Powell.
[19] Substantive double jeopardy claims come in two varieties: (1) when a single
criminal act or transaction violates one statute but harms multiple victims; and
(2) when a single criminal act or transaction violates multiple statutes with
common elements and harms one or more victims. Wadle, 151 N.E.3d at 247;
Powell, 151 N.E.3d at 263. “Wadle established the test for the latter scenario,
Powell the former.” Hill, 157 N.E.3d at 1228.
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A. Powell
[20] We analyze Madden’s claims that his two aggravated battery convictions and
his convictions for both kidnapping as a Level 5 felony and as a Level 2 felony
violate substantive double jeopardy by employing the test set forth in Powell.
[21] “In resolving a claim of multiplicity, our task is to determine whether the
statute permits punishment for a single course of criminal conduct or for certain
discrete acts – the ‘successive, similar occurrences’ – within that course of
conduct.” Powell, 151 N.E.3d at 264 (quoting Hines v. State, 30 N.E.3d 1216,
1220 (Ind. 2015)). This inquiry is a two-step process:
First, we review the text of the statute itself. If the statute,
whether expressly or by judicial construction, indicates a unit of
prosecution, then we follow the legislature’s guidance and our
analysis is complete. See Hurst[ v. State, 464 N.E.2d 19, 21 (Ind.
Ct. App. 1984)] (whether “multiple offenses of the same statute
are committed during a single transaction” depends “on the
definition of the particular crime involved”). But if the statute is
ambiguous, then we proceed to the second step of our analysis.
Under this second step, a court must determine whether the facts
– as presented in the charging instrument and as adduced at trial
– indicate a single offense or whether they indicate
distinguishable offenses. To answer this question, we ask
whether the defendant’s actions are “so compressed in terms of
time, place, singleness of purpose, and continuity of action as to
constitute a single transaction.” Walker v. State, 932 N.E.2d 733,
735 (Ind. Ct. App. 2010), cited with approval by Hines, 30 N.E.3d
at 1219. If the defendant’s criminal acts are sufficiently distinct,
then multiple convictions may stand; but if those acts are
continuous and indistinguishable, a court may impose only a
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single conviction. Armstead v. State, 549 N.E.2d 400, 402 (Ind.
Ct. App. 1990). Any doubt counsels “against turning a single
transaction into multiple offenses.” Duncan v. State, 274 Ind. 457,
464, 412 N.E.2d 770, 775 (1980)[.]
Id. at 264-65 (footnotes omitted).2 We review questions of statutory law de
novo. Id. at 262. To aid in determining the unit of prosecution when the
statute does not contain an express unit of prosecution, the Powell court
distinguished conduct-based statutes from result-based statutes and explained:
A conduct-based statute . . . consists of an offense defined by
certain actions or behavior (e.g. operating a vehicle) and the
presence of an attendant circumstance (e.g., intoxication). . . . A
result-based statute . . . consists of an offense defined by the
defendant’s actions and the results or consequences of those
actions. In crimes such as murder, manslaughter, battery and
reckless homicide, the gravamen of the offense is causing the
death or injury of another person, i.e., the result is part of the
definition of the crime. In other words, the resulting death,
injury or offensive touching is an element of the crime. . . . Under
these statutes, then, where several . . . injuries occur in the course
of a single incident, the prohibited offense has been perpetrated
several times over. . . . In short, crimes defined by conduct
(rather than by consequence) permit only a single conviction
(with multiple consequences resulting in enhanced penalties, not
multiple crimes). But crimes defined by consequences (rather
than by conduct) permit multiple convictions when multiple
consequences flow from a single criminal act.
2
This court has found that Powell “incorporated the continuous crime doctrine into its uniform substantive
double jeopardy framework.” Jones, 159 N.E.3d at 62.
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Id. at 265-66 (internal quotations, emphases, and citations omitted).
i. Aggravated Battery Convictions
[22] We first address whether Madden’s two aggravated battery convictions violate
substantive double jeopardy. “A person who knowingly or intentionally inflicts
injury on a person that creates a substantial risk of death or causes . . . serious
permanent disfigurement . . . commits aggravated battery, a Level 3 felony.”
Ind. Code § 35-42-2-1.5. Because the gravamen of this offense is the injury of
another person, it is a result-based statute. A panel of this court addressed the
very same question in Madden’s co-defendant’s direct appeal and stated, “each
time Madden threw hot water on A.C. could support a separate battery claim.
However, how this result-based statute applies when there is a single victim
who suffered multiple, substantially similar injuries because of multiple
instances of the same act is ambiguous.” Jones, 159 N.E.3d at 63-64.
Accordingly, we move to the second step in Powell and “we ask whether the
defendant’s actions are so compressed in terms of time, place, singleness of
purpose, and continuity of action as to constitute a single transaction.” Powell,
151 N.E.3d at 264 (quotation omitted).
[23] Here, we conclude that Madden’s two acts of throwing hot water on A.C. were
not continuous and therefore, do not constitute a single transaction. The record
reveals that A.C. was taken to the basement of Madden’s house and handcuffed
to a pipe. When she escaped from the cuffs, she was handcuffed to a chair near
the bar/kitchen area where Madden threw hot water on her. Madden and
Jones questioned A.C. about the package. A.C. then attempted to move to a
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corner, but Madden hit her with a pot and beat her. A.C. then stood up and
went into the bathroom. Jones closed the door. A.C. took her clothes off, as
instructed, and Madden opened the door and threw hot water on her again.
The two acts of throwing hot water on A.C. did not occur at the same time, in
the same place, and did not share a purpose. The first time Madden threw hot
water on A.C. was when she was clothed and handcuffed to a chair in the
kitchen area while questioning her about the missing package. The second act
occurred later, while A.C. was in the bathroom and unclothed. And the
purpose of the second act appeared to be punitive. We also agree that
“[b]ecause one battery occurred while A.C. was clothed, and one while she was
not, it would be reasonable to infer that they resulted in different injuries.”
Jones, 159 N.E.3d at 64. The two acts of throwing water on A.C. were
distinguishable offenses. Because the two batteries were separated by time,
place, and purpose, they were not part of a single transaction. Accordingly,
Madden’s two aggravated battery convictions are affirmed.
ii. Level 2 Kidnapping for Ransom and Level 5 Kidnapping
[24] Madden also argues his multiple convictions for kidnapping violate the
continuous crime doctrine. See Brief of the Appellant at 24. Specifically,
Madden contends, and the State agrees, that his conviction for Level 2 felony
kidnapping may stand but his Level 5 felony kidnapping conviction must be
vacated. See Brief of Appellee at 16.
[25] “A person who knowingly or intentionally removes another person, by fraud,
enticement, force, or threat of force, from one place to another commits
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kidnapping.” Ind. Code § 35-42-3-2(a). Madden was charged with two
violations of this statute: one offense was elevated to a Level 5 felony because
the kidnapping resulted in bodily injury to A.C. and the other offense was
elevated to a Level 2 felony because it was committed with the intent to obtain
ransom. Ind. Code §§ 35-42-3-2(b)(1)(C), (3)(a) (2014). This is a conduct-based
statute because the gravamen of the offense is the action of removing the victim.
Here, there is no question that only one removal occurred: Madden’s forceful
removal of A.C. from Jones’ car into the basement. “The only things that
distinguish the Level [5] conviction (injury) from the Level [2] conviction
(ransom) are result and motive. These are not the units of prosecution for
kidnapping.” Jones, 159 N.E.3d at 65. Therefore, only one can stand, which, in
this case, is the Level 2 felony. See id. (“[T]he lesser felony should fall.”). We
remand to the trial court with instructions to vacate Madden’s Level 5 felony
kidnapping conviction and amend its judgment to remove the conviction and
sentence on this count.
B. Wadle
[26] Wadle’s double jeopardy framework applies when a single criminal act or
transaction violates multiple statutes with common elements. In such a case,
we first look to the statutes themselves. If either statute clearly
permits multiple punishment, whether expressly or by
unmistakable implication, the court’s inquiry comes to an end
and there is no violation of substantive double jeopardy. But if
the statutory language is not clear, then a court must apply our
included-offense statutes to determine whether the charged
offenses are the same. See I.C. § 35-31.5-2-168. If neither offense
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is included in the other (either inherently or as charged), there is
no violation of double jeopardy. But if one offense is included in
the other (either inherently or as charged), then the court must
examine the facts underlying those offenses, as presented in the
charging instrument and as adduced at trial. If, based on these
facts, 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,” then the prosecutor may charge
the offenses as alternative sanctions only. But if the defendant’s
actions prove otherwise, a court may convict on each charged
offense.
Wadle, 151 N.E.3d at 253.
[27] Madden argues that both his Level 2 kidnapping and criminal confinement
convictions cannot stand. The State concedes that under the Wadle test,
Madden is correct. Looking first to the statutory language, Level 2 kidnapping
is committed by “[a] person who knowingly or intentionally removes another
person, by fraud, enticement, force, or threat of force, from one place to
another[,]” with the intent to obtain ransom. Ind. Code § 35-42-3-2(a),
(b)(3)(A) (2014). And Level 2 criminal confinement is committed by “[a]
person who knowingly or intentionally confines another person without the
other person’s consent[,]” with the intent to obtain ransom. Ind. Code § 35-42-
3-3(a), (b)(3)(A) (2014). Because neither statute permits multiple punishment,
we move to the second step of the statutory analysis and apply our included-
offense statutes to determine statutory intent. Wadle, 151 N.E.3d at 253;
Barrozo v. State, 156 N.E.3d 718, 723 (Ind. Ct. App. 2020).
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[28] Indiana Code section 35-38-1-6 states that a trial court may not enter judgment
of conviction and sentence for both an offense and an included offense. An
“included offense” is defined as an offense that:
(1) is established by proof of the same material elements or less
than all the material elements required to establish the
commission of the offense charged;
(2) consists of an attempt to commit the offense charged or an
offense otherwise included therein; or
(3) differs from the offense charged only in the respect that a less
serious harm or risk of harm to the same person, property, or
public interest, or a lesser kind of culpability, is required to
establish its commission.
Ind. Code § 35-31.5-2-168. “If neither offense is included in the other (either
inherently or as charged), there is no violation of double jeopardy.” Wadle, 151
N.E.3d at 248.
[29] In this case, subsection (1) is implicated:
Criminal confinement requires proof of the same but fewer
criminal elements as kidnapping. A kidnapper must act “by
fraud, enticement, force, or threat of force,” whereas criminal
confinement must be done without consent. Consent is a
“voluntary yielding to what another proposes or desires.”
Consent, Black’s Law Dictionary (11th ed. 2019). Non-consent
is established by the methods noted in the statute of “fraud,
enticement, force, or threat of force.” Kidnapping requires
removal from one place to another, while criminal confinement
requires an act of confinement. In removing someone from one
place to another, a kidnapper has confined that person to those
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places. The element of confinement is a necessary part of forced
removal. As such, confinement is a lesser included offense of
kidnapping.
Jones, 159 N.E.3d at 66 (footnote omitted). We also note that Madden’s
enhancements were identical; both offenses were elevated to a Level 2 felony
because the offenses were committed with the intent to obtain ransom. See Ind.
Code §§ 35-42-3-2(b)(3)(A) (2014), 35-42-3-3(b)(3)(A) (2014).
[30] Because criminal confinement is included in kidnapping, we must examine the
underlying facts to determine whether Madden’s actions were “so compressed
in terms of time, place, singleness of purpose, and continuity of action as to
constitute a single transaction” such that his convictions for criminal
confinement and kidnapping violate double jeopardy. Wadle, 151 N.E.3d at
253. Here, the same facts proved Madden’s conviction for criminal
confinement and kidnapping – that he forced A.C. from the car and into the
basement where she was handcuffed. And because Madden acted with the
intent to obtain ransom, both convictions were enhanced to Level 2 felonies.
Madden’s actions were so compressed in time, place, singleness of purpose, and
continuity of action that his convictions for both crimes violate double
jeopardy. Accordingly, we remand with instructions for the trial court to vacate
the included offense, namely Madden’s Level 2 felony criminal confinement
conviction, and amend its judgment to remove the conviction and sentence on
this count. See Ind. Code § 35-38-1-6 (stating that when a defendant is charged
with an offense and an included offense in separate counts and is found guilty
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of both counts, the trial court cannot enter a judgment and sentence for the
included offense).
[31] In sum, Madden’s two aggravated battery convictions do not constitute double
jeopardy and are therefore affirmed. Madden’s Level 5 felony kidnapping and
criminal confinement convictions do constitute double jeopardy in relation to
his Level 2 felony kidnapping conviction. Therefore, his convictions for Level 5
felony kidnapping and criminal confinement must be vacated and his
conviction for Level 2 kidnapping is affirmed.
III. Sentencing Abuse of Discretion
[32] Madden challenges the trial court’s imposition of consecutive sentences as an
abuse of discretion. He claims because “all of [his] acts were part of a single
continuous crime . . . the sentences should be concurrent.” Br. of the Appellant
at 27. We disagree.
Sentencing decisions rest within the sound discretion of the trial
court and are reviewed on appeal only for an abuse of discretion.
An abuse of discretion occurs if the decision is clearly against the
logic and effect of the facts and circumstances before the court, or
the reasonable, probable, and actual deductions to be drawn
therefrom. A trial court may abuse its discretion by failing to
enter a sentencing statement, entering findings of aggravating and
mitigating factors unsupported by the record, omitting factors
clearly supported by the record and advanced for consideration,
or giving reasons that are improper as a matter of law.
Stokes v. State, 947 N.E.2d 1033, 1036 (Ind. Ct. App. 2011) (citations and
quotations omitted), trans. denied.
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[33] A trial court may order consecutive sentences based on one valid aggravating
factor. Kayser v. State, 131 N.E.3d 717, 723 (Ind. Ct. App. 2019). And that one
valid aggravator may be used both to enhance a sentence and to justify
consecutive sentences. Id. Here, the trial court found several aggravating
factors, including Madden’s criminal history and the nature of the offense, and
ordered the sentences for his two aggravated battery convictions and his Level 2
kidnapping conviction to be served consecutively to each other. Madden does
not argue the trial court improperly found an aggravating factor. Therefore, the
trial court found at least one valid aggravating factor and did not abuse its
discretion in imposing consecutive sentences.
IV. Inappropriate Sentence
A. Standard of Review
[34] Article 7, sections 4 and 6 of the Indiana Constitution authorize independent
appellate review and revision of sentences through Indiana Appellate Rule 7(B).
King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008). Rule 7(B) provides,
“The 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.” Sentencing decisions rest within the discretion of the trial court and,
as such, should receive considerable deference. Cardwell v. State, 895 N.E.2d
1219, 1222 (Ind. 2008). “Such deference should prevail unless overcome by
compelling evidence portraying in a positive light the nature of the offense (such
as accompanied by restraint, regard, and lack of brutality) and the defendant’s
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character (such as substantial virtuous traits or persistent examples of good
character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[35] The defendant bears the burden of demonstrating his sentence is inappropriate
under the standard, Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006), and
we may look to any factors in the record in making such a determination, Reis v.
State, 88 N.E.3d 1099, 1102 (Ind. Ct. App. 2017). Ultimately, “whether we
regard a sentence as [in]appropriate at the end of the day turns on our sense of
the culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other factors that come to light in a given case.” Cardwell,
895 N.E.2d at 1224. And the principal role of this court in reviewing of a
defendant’s sentence is “not to achieve a perceived ‘correct’ result in each
case[,]” but to attempt to leaven the outliers. Id. at 1225. Thus, the question is
not whether the defendant’s sentence is appropriate or another sentence is more
appropriate; rather, the test is whether the sentence is inappropriate. Perry v.
State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017).
B. Nature of the Offenses
[36] We begin our analysis of the “nature of the offense” prong with the advisory
sentence. Reis, 88 N.E.3d at 1104. The advisory sentence is the starting point
the Indiana legislature has selected as an appropriate sentence for the
committed crime. Childress, 848 N.E.2d at 1081. The sentencing range for a
Level 2 felony is between ten and thirty years, with an advisory sentence of
seventeen and one-half years. Ind. Code § 35-50-2-4.5. The sentencing range
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for a Level 3 felony is a fixed term between three and sixteen years, with an
advisory sentence of nine years. Ind. Code § 35-50-2-5(b). Therefore, Madden
faced a maximum prison sentence of sixty-two years for his two aggravated
battery convictions, both Level 3 felonies, and his kidnapping for ransom
conviction, a Level 2 felony. However, he received forty years.
[37] The nature of the offense is found in the details and circumstances of the
offenses and the defendant’s participation therein. Lindhorst v. State, 90 N.E.3d
695, 703 (Ind. Ct. App. 2017). When determining the inappropriateness of a
defendant’s sentence that deviates from the advisory sentence, we consider
whether there is anything more or less egregious about the offense as committed
by the defendant that distinguishes it from the typical offense accounted for by
our legislature when it set the advisory sentence. Moyer v. State, 83 N.E.3d 136,
142 (Ind. Ct. App. 2017), trans. denied. Here, Madden was sentenced to ten
years for each aggravated battery conviction, which is one year above the
advisory sentence. He was sentenced to twenty years for his kidnapping
conviction, two and one-half years above the advisory sentence.
[38] There is no question that the nature of Madden’s offenses is egregious. Madden
participated in kidnapping A.C. and repeatedly beat, kicked, and punched her
while she was handcuffed, causing her to go in and out of consciousness. He
also threw hot water on her twice. As a result, A.C. suffered severe burns and
has undergone various procedures. A.C.’s mother testified at the sentencing
hearing that after A.C.’s first surgery, A.C. had to go to physical therapy to
improve her ability to walk. She also testified that A.C. has experienced “gut
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wrenching pain” from her injuries. Tr., Vol. 4 at 85. Due to her burns, A.C.
had to change her bandages twice a day for several months and then once a day
for a while longer. As A.C. changed her bandages, she would cry out in pain.
Because of Madden’s actions, A.C. has undergone several surgeries, will likely
need significant medical treatment over a very long period, and has permanent
scarring. We are unpersuaded that the horrific nature of Madden’s offenses
renders his sentence inappropriate.
C. Character of the Offender
[39] Madden argues his sentence is inappropriate because of his good character. He
argues, “Despite the evidence at trial, [he] did not present the court with a
hardened character requiring many years of incarceration in order to remold
and shape him into a law-abiding citizen. Rather, [he] showed himself to be a
man remorseful for his actions, and struggling with substance abuse, but with a
willingness to seek treatment.” Br. of the Appellant at 30-31.
[40] We conduct our review of a defendant’s character by engaging in a broad
consideration of his or her qualities. Moyer, 83 N.E.3d at 143. And a
defendant’s life and conduct are illustrative of his or her character. Morris, 114
N.E.3d at 539. A defendant’s criminal history is one relevant factor in
analyzing his or her character, the significance of which varies based on the
“gravity, nature, and number of prior offenses in relation to the current
offense.” Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007).
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[41] Madden’s criminal history is comprised of true findings for theft and resisting
law enforcement as a juvenile and two misdemeanor convictions as an adult.
Madden has also had his probation revoked. Although Madden’s criminal
history is not significant, “[e]ven a minor criminal record reflects poorly on a
defendant’s character[.]” Reis, 88 N.E.3d at 1105.
[42] In sentencing Madden, the trial court found as mitigating factors his substance
abuse, remorse, and that a prolonged period of incarceration would be an
undue hardship on his family. We, too, recognize that the record shows
Madden has two young children, expressed remorse at sentencing, and has
struggled with substance abuse. We also acknowledge that Madden has
participated in various programs while incarcerated, including a religious
program, parenting classes, substance abuse classes, and anger management.
However, Madden’s criminal history, the egregious nature of his offenses, and
the permanent physical and emotional harm inflicted on A.C. outweigh these
factors. Madden faced a maximum sentence of sixty-two years for his offenses
but received forty. We cannot conclude his character is so stellar as to render
his sentence inappropriate.
[43] In sum, we cannot conclude Madden’s forty-year sentence is inappropriate in
light of the nature of the offenses or his character. Accordingly, we decline to
revise his sentence.
Conclusion
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[44] For the reasons set forth above, we conclude the evidence is sufficient to
support Madden’s kidnapping for ransom conviction, the trial court did not
abuse its discretion by imposing consecutive sentences, and his sentence is not
inappropriate. We conclude that Madden’s aggravated battery convictions do
not constitute double jeopardy and are therefore affirmed. Madden’s
convictions for Level 5 felony kidnapping and criminal confinement do
constitute double jeopardy in relation to his Level 2 felony kidnapping
conviction. Therefore, we remand to the trial court with instructions to vacate
Madden’s Level 5 felony kidnapping and criminal confinement convictions and
amend its judgment accordingly.
[45] Affirmed in part, reversed and remanded in part.
Bailey, J., and Tavitas, J., concur.
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