Arturo Estrada-Medina v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Mar 19 2015, 9:26 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael R. Fisher Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Arturo Estrada-Medina, March 19, 2015
Appellant-Defendant, Court of Appeals Case No.
49A04-1409-CR-409
v. Appeal from the Marion Superior
Court Criminal Division 4
Honorable Lisa Borges, Judge
State of Indiana, Cause No. 49G04-1305-FB-028012
Appellee-Plaintiff
Friedlander, Judge.
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[1] Arturo Estrada-Medina appeals following his convictions of class B felony
Rape1 and class D felony Criminal Confinement.2 He raises two issues on
appeal, one of which we find dispositive: Do his convictions for rape and
criminal confinement violate Indiana’s constitutional double jeopardy
protections?
[2] We reverse and remand with instructions.
[3] In the early evening hours of September 24, 2006, then-seventeen-year-old
D.W. went to the Berkley Commons apartments in Indianapolis to visit her
boyfriend, Derek Reynolds. When she arrived, Reynolds was with his friend
“Red” and a Hispanic man D.W. did not know. The group hung out in a park
by the apartment complex while Reynolds, Red, and the Hispanic man drank
beer. At some point, Derek suggested that they all go to the apartments’
laundry facility, where D.W. had previously hung out with Reynolds on several
occasions. D.W. led the way to the basement of the building where the laundry
room was located. When she got into the room and turned around, she
discovered that she was alone with the Hispanic man. D.W. tried to leave, but
1
Ind. Code Ann. § 35-42-4-1 (West, Westlaw 2013). Effective July 1, 2014, this offense has been reclassified
as a Level 3 felony. See I.C. § 35-42-4-1 (West, Westlaw current with all legislation of the 2015 First Regular
Session of the 119th General Assembly effective through February 23, 2015). Because the offense in this case
was committed prior to that date, it retains its former classification as a class B felony.
2
I.C. § 35-42-3-3 (West, Westlaw 2013). Effective July 1, 2014, the criminal confinement statute has been
revised and the offense has been reclassified as a Level 6 felony, which may be elevated to a Level 5, 3, or 2
felony under certain circumstances. See I.C. § 35-42-3-3 (West, current with all legislation of the 2015 First
Regular Session of the 119th General Assembly effective through February 23, 2015). Because the offense in
this case was committed prior to that date, it retains its former classification as a class D felony.
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the man blocked her way and grabbed her by the throat and squeezed. D.W.
was scared and could not breathe. D.W. then ended up on the floor with the
man on his knees between her legs. D.W. was crying and begging for him to let
her go, and the man was telling her in Spanish to shut up. D.W. removed her
pants and underwear because she “knew [she] wasn’t leaving the laundry room
unless [she] did something.” Transcript at 130. The man then undressed and
penetrated D.W.’s vagina with his penis while she continued to cry. After he
ejaculated inside D.W.’s vagina, D.W. then grabbed her clothes and left the
laundry room.
[4] D.W. put her clothes back on outside, and almost immediately thereafter ran
into Reynolds and Red. D.W. told Reynolds that she had been raped, and he
told her not to call the police because there was an active warrant for his arrest.
Shortly thereafter, a friend of D.W.’s contacted Deborah Schonfeld, who ran a
program for at-risk youth in which D.W. participated. Schonfeld sent her
husband to pick up D.W. and bring her back to their house. Schonfeld spent
time talking to D.W., who was shaking, extremely distressed, and having
difficulty communicating. Eventually, D.W. agreed to report the incident. She
was then interviewed by police and taken to the hospital, where a rape kit was
completed. In February 2007, a DNA profile was developed from sperm
fractions found during the rape kit exam and the profile was uploaded into
Indiana’s DNA database. No match was found at that time, and no arrests
were made.
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[5] Six years later, in April 2013, Indianapolis Metropolitan Police Detective David
Miller was notified that there was a DNA match in the database with Estrada-
Medina’s profile, which had been recently uploaded due to a criminal trespass
conviction. Detective Miller contacted D.W., who stated emphatically that she
wished to pursue charges. Subsequently conducted DNA testing confirmed
that Estrada-Medina was the source of the DNA found during D.W.’s rape kit.
[6] The State charged Estrada-Medina with class B felony rape, two counts of class
D felony criminal confinement, and class D felony strangulation. A two-day
jury trial commenced on July 14, 2014, at the conclusion of which Estrada-
Medina was found guilty of rape and one count of criminal confinement and
acquitted of the remaining charges. Estrada-Medina now appeals.
[7] Estrada-Medina argues that his convictions for rape and criminal confinement
violate Indiana’s constitutional double jeopardy protections. 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 twice
for the same criminal transgression.” Richardson v. State, 717 N.E.2d 32, 49
(Ind. 1999). Two or more offenses are the “same criminal transgression” for
the purposes of the Indiana 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.
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[8] In this case, Estrada-Medina challenges his convictions under the actual-
evidence test, which “prohibits multiple convictions if there is ‘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 the
essential elements of a second challenged offense.’” Davis v. State, 770 N.E.2d
319, 323 (Ind. 2002) (quoting Richardson v. State, 717 N.E.2d at 53).
Establishing a “‘reasonable possibility’ that the jury used the same facts to reach
two convictions requires substantially more than a logical possibility.” Lee v.
State, 892 N.E.2d 1231, 1236 (Ind. 2008). Instead, the existence of a reasonable
possibility “turns on a practical assessment of whether the jury may have
latched on to exactly the same facts for both convictions.” Id. In applying this
test, we seek “to identify the essential elements of each of the challenged crimes
and to evaluate the evidence from the jury’s perspective, considering where
relevant the jury instructions, argument of counsel, and other factors that may
have guided the jury’s determination.” Wright v. State, 950 N.E.2d 365, 369
(Ind. Ct. App. 2011).
[9] On appeal, Estrada-Medina argues that his convictions violate double jeopardy
principles because there is a reasonable possibility that the jury relied on the
same conduct to support the criminal confinement conviction and to establish
the force element of the rape conviction. “In addition to the instances covered
by Richardson, ‘we have long adhered to a series of rules of statutory
construction and common law that are often described as double jeopardy, but
are not governed by the constitutional test set forth in Richardson.’” Guyton v.
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State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quoting Pierce v. State, 761 N.E.2d
826, 830 (Ind. 2002)). One of these rules prohibits “[c]onviction and
punishment for a crime which consists of the very same act as an element of
another crime for which the defendant has been convicted and punished.” Id.
(quoting Richardson v. State, 717 N.E.2d at 56 (Sullivan, J., concurring)). Thus,
if we determine that Estrada-Medina’s criminal confinement conviction is based
on the same act that establishes the force element of his rape conviction, a
double jeopardy violation has occurred.
[10] “[A] person who ‘commits rape or criminal deviate conduct necessarily
confines the victim at least long enough to complete such a forcible crime.’”
Jacobs v. State, 2 N.E.3d 116, 122-23 (Ind. Ct. App. 2014) (quoting Gates v. State,
759 N.E.2d 631, 632 (Ind. 2001)), summarily aff’d in relevant part, 22 N.E.3d
1286 (Ind. 2015). For criminal confinement to constitute a separate crime,
there must be proof of force to effectuate the confinement that goes beyond that
necessary to effectuate the rape. See Ryle v. State, 549 N.E.2d 81, 85 n.7 (Ind.
Ct. App. 1990), trans. denied. For example, in Sallee v. State, rape and criminal
confinement convictions did not violate double jeopardy protections when, as
the victim gave the defendant and his co-defendant a ride, the defendant pulled
her into the backseat and would not let her out of the car despite her pleas, and
the two defendants then took her to their house, where they repeatedly raped
her. 777 N.E.2d 1204 (Ind. Ct. App. 2002), trans. denied.
[11] On appeal, the State argues that the rape and criminal confinement convictions
are supported by separate acts of force. Specifically, the State argues that the
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criminal confinement was accomplished when Estrada-Medina made D.W. get
on the ground, and “[t]he confinement necessary to effectuate the rape . . . was
[Estrada-Medina’s] act of physically touching D.W.’s body—by lying on her or
next to her—in order to penetrate his penis into her vagina.” Appellee’s Brief at
10.
[12] Assuming arguendo that a factual distinction this fine could support separate
convictions for rape and criminal confinement, we note that such distinction
was not argued to the jury. The charging information presented to the jury
alleged that Estrada-Medina committed rape by knowingly or intentionally
having sexual intercourse with D.W., a member of the opposite sex, when
D.W. was compelled by force or imminent threat of force. See I.C. § 35-42-4-1.
The charging information for the relevant criminal confinement charge
provided that Estrada-Medina committed the offense by “knowingly confin[ing]
[D.W.] without the consent of [D.W.], by making [D.W.] get on the ground.”
Appellant’s Appendix at 24; see also I.C. § 35-42-3-3 (West, Westlaw 2013)
(providing that a person who “confines another person without the other
person’s consent” commits class D felony criminal confinement).3 Thus,
3
The criminal confinement statute applicable at the time of these offenses provided that a defendant may
commit class D felony criminal confinement in two distinct ways: either by “confin[ing] another person
without the other person’s consent” or by “remov[ing] another person, by fraud, enticement, force, or threat
of force, from one (1) place to another”. I.C. § 35-42-3-3 (West, Westlaw 2013); see also State v. Greene, 16
N.E.3d 416, 419-20 (Ind. 2014) (explaining that under the previously applicable statute, “[t]wo distinct types
of criminal confinement are encompassed: confinement by non-consensual restraint and confinement by
forcible removal”). In this case, Estrada-Medina was charged with two counts of criminal confinement. In
Count II, he was charged with criminal confinement by forcible removal for dragging D.W. into the laundry
room. In closing arguments, the State conceded that no evidence had been presented to support Count II and
that the jury should acquit Estrada-Medina on that count, which it did. In Count III, Estrada-Medina was
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although the charging information for criminal confinement specified the
precise act supporting the charge, the charging information for rape contained
no similar specificity. Instead, it was in substance merely a recitation of the
relevant language of the rape statute. The jury instructions contained no
specific assertions as to which acts were alleged to support the force element of
the rape and which acts were alleged to support the criminal confinement
charge. In closing arguments, the State argued that Estrada-Medina committed
criminal confinement by forcing D.W. to get on the ground, but it made no
attempt to differentiate the force supporting the criminal confinement
conviction from the force used to accomplish the rape. Indeed, the State argued
to the jury that “[h]e puts her on the ground and then he forces her to have sex.
That’s rape.” Transcript at 325. This may well have been construed by the jury
as an invitation to rely on precisely the same act establishing the criminal
confinement conviction to establish the force element of rape. Although we
note that D.W. testified to other acts that could, at least theoretically, have been
relied upon to establish the force element of rape—e.g., that Estrada-Medina
blocked her exit from the laundry room and grabbed her by the throat and
charged with criminal confinement by non-consensual restraint for making D.W. get on the ground, and he
was convicted on this charge. We note, however, that with respect to Count III, the jury was instructed on
the elements of criminal confinement by forcible removal, not non-consensual restraint. See Appellant’s
Appendix at 154 (instructing the jury that to support a conviction for criminal confinement as charged in
Count III, the State must prove that Estrada-Medina “removed [D.W.] by force or threat of force from one
place to another”). Because we reverse with instructions to vacate Estrada-Medina’s criminal confinement
conviction, we need not address any potential problems arising from this inconsistency. Regardless of
whether Estrada-Medina was convicted of criminal confinement based on non-consensual restraint or
forcible removal, the evidence relied upon to support the offense was the same—that is, that Estrada-Medina
made D.W. get on the ground.
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squeezed—the State did not present the evidence in a manner that eliminated
the possibility that the jury would rely on the same evidence to establish both
the criminal confinement and the force element of the rape. In other words,
there is a reasonable possibility that the jury convicted Estrada-Medina of
criminal confinement based on the very same act it relied upon to establish the
force element of rape. Accordingly, the convictions violate double jeopardy
protections, and we therefore remand with instructions to vacate the criminal
confinement conviction. Because Estrada-Medina’s convictions were ordered
to be served concurrently, his aggregate sentence will not change.
[13] Judgment reversed and remanded with instructions.
Kirsch, J., and Crone, J., concur.
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