Tammy Lou Kelly v. State of Indiana

FOR PUBLICATION
MARK LEEMAN GREGORY F. ZOELLER
Cass County Public Defender Attorney General of Indiana
Leeman Law Offices
Logansport, Indiana CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana
Jan 28 2014, 11:32 am
IN THE
COURT OF APPEALS OF INDIANA
TAMMY LOU KELLEY, )
)
Appellant-Defendant, )
)
vs. ) No. 09A04-1303-CR-98
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE CASS CIRCUIT COURT
The Honorable Leo T. Burns, Jr., Judge
Cause No. 09C01-1103-FA-2
January 28, 2014
OPINION - FOR PUBLICATION
ROBB, Judge
Case Summary and Issues
Tammy Lou Kelley appeals her convictions, following a bench trial, for criminal
confinement, a Class C felony; three counts of battery resulting in bodily injury, Class D
felonies; and resisting law enforcement, a Class A misdemeanor. Kelley presents several
issues on appeal, one of which we find dispositive: whether the trial court’s verdict finding
Kelley guilty but mentally ill was contrary to law. Concluding that the trial court’s verdict
was contrary to law we reverse and remand.
Facts and Procedural History
On the morning of March 6, 2011, Derrick Shepard left his twelve-year-old daughter,
D.S., with Kelley in the apartment that the three of them shared. D.S. was eating breakfast in
the living room when Kelley came into the room looking for money and an ID and asked
D.S. what she was doing. Kelley then punched D.S. in the face several times, saying that she
had had enough of D.S.’s “shit.” Exhibit 1 at 6. D.S. pushed Kelley away and at the same
time pushed Kelley’s hands down. Kelley left the room, grabbed a six-inch steak knife from
the kitchen, came back into the living room, and said to D.S., “I can’t take this anymore, I’ve
had enough!” and began stabbing D.S. Id. at 2. D.S. was able to get to a phone and call 911
while Kelley continued to stab her, but then D.S. lost the connection to 911. While this was
going on, D.S. was moving around the apartment trying to get away from Kelley. At one
point, Kelley had D.S. on the floor and was stabbing her, with D.S. holding her arms up so
that Kelley could not get to her face. Eventually, D.S. pushed Kelley away so that she could
get to the door. Kelley then went into the kitchen again, and D.S. unlocked the door and left.
2
D.S. ran out of the apartment and first went to the apartment complex main office, which
was closed. She then began running again and saw a woman coming out of an apartment.
She told the woman, Ashley Goodman, that she had been stabbed and asked her for help.
Goodman saw that D.S. was covered in blood and had a “busted” lip—which she specifically
noticed after D.S. told her that she had been punched before she was stabbed—and took D.S.
into her apartment to call 911. Exh. 2 at 7.
Several officers from the Logansport Police Department arrived on the scene shortly
thereafter. Officers Carlos Reynoso and George Franklin arrived at the apartment complex,
and as Officer Reynoso walked up to Goodman’s apartment, he could see drops of blood on
the sidewalk. Later investigation showed a trail of blood leading from D.S.’s apartment to
the main office, with “a large amount of blood on the door to the office,” and then more
blood leading to Goodman’s apartment. Exh. 1 at 5. Officers arrived at Goodman’s
apartment to find D.S. frightened and covered in blood. An ambulance arrived after the
officers spoke to D.S., and en route to the hospital the medics requested that life line be
available to transport D.S. via helicopter to a different medical center, where the record
indicates that D.S. spent at least a couple of days in the Intensive Care Unit. Ultimately, D.S.
was found to have suffered nine knife wounds, including wounds on her head and arms, a
back wound that just missed her kidney, and a wound on her chest that partially collapsed one
of her lungs.
While Officers Reynoso and Franklin were attending to D.S. at Goodman’s apartment,
Lieutenant Carl Swan and Officer Rick Bernhardt went to D.S.’s apartment to speak to
3
Kelley. As they approached the apartment, they saw blood stains on the walk leading up to
the apartment as well as on the door to the common area. The door to D.S.’s apartment was
partially open, and Lt. Swan could see Kelley standing just inside the apartment wearing a
white shirt and red pajama pants, with “copious amount [sic] blood stain on Kelley’s clothing
and body.” Id. at 3. Lt. Swan kicked the door open the rest of the way and ordered Kelley to
the ground at gunpoint. Kelley initially complied with the order, and the officers came into
the living room and noticed blood stains on the carpeting and a blood-stained steak knife
with a bent blade lying on the floor about six feet away from Kelley. Lt. Swan handcuffed
Kelley while Officer Bernhardt performed a protective sweep of the apartment. Lt. Swan
started to Mirandize Kelley, at which point Kelley began to yell “Fuck Off,” “I wan’t [sic]
fucking water,” “Give me water,” and “I didn’t do anything I just need water.” Id. The
officers requested that Kelley calm down, which she did not do, and when they assisted
Kelley to her feet, Kelley became aggressive and kneed Officer Bernhardt in the groin and
kicked Lt. Swan in the groin as soon as she stood up. Both men complained of pain and
discomfort in the groin area as a result of her strikes. Kelley was taken to the common area
of the apartment building where she continued to scream and kick while being held down.
Additional officers assisted in securing Kelley for transport, and Kelley was taken to the jail.
At the jail, Kelley, still unruly, was taken to a padded cell where her clothing was collected
and she was checked for injuries (none were found).
Shepard was interviewed briefly when he came to the police station after learning
about the incident between Kelley and his daughter. He explained that he and Kelley had
4
never been married, although she had been in his life before but was not currently his
girlfriend. He stated that he knew something was wrong when he left the apartment that
morning, and that Kelley had been acting different since coming home from her mother’s
house that weekend, but that he did not think she was capable of hurting D.S.
On March 9, 2011, the State charged Kelley with: count I, attempted murder as a
Class A felony; count II, criminal confinement as a Class C felony; count III, battery of a
person under fourteen resulting in bodily injury as a Class D felony; count IV, battery of a
law enforcement officer (Officer Bernhardt) resulting in bodily injury as a Class D felony;
count V, battery of a law enforcement officer (Lt. Swan) resulting in bodily injury as a Class
D felony; and count VI, resisting law enforcement as a Class A misdemeanor. In June 2011
Kelley filed a motion for psychiatric, competency, and mental status evaluation, which the
court granted in July 2011.
Two psychiatrists filed reports with the court after evaluating Kelley. Dr. Rebecca
Mueller saw Kelley on July 13, 2011, and also reviewed the charging information and
probable cause affidavit, police reports, and Kelley’s mental health records from the jail as
well as from the Four County Counseling Center (“FCCC”). During the interview, Kelley
told Dr. Mueller that she and D.S. had gotten “into a scuffle.” Exh. A at 2. She told Dr.
Mueller that she had had an argument with Shepard that morning and at some point he had
called off their engagement.1 She wanted him to take D.S. to her brother’s place that day
rather than leaving her at the apartment, but he refused. Kelley did not remember the details
1
There appear to be conflicting stories as to the status of Kelley’s and Shepard’s relationship.
5
of the incident but did remember grabbing a knife and stabbing D.S., although she also said
that she “would not have stabbed D.S. in one million years.” Id. Dr. Mueller commented
that Kelley spoke very little about the stabbing but remarked that Shepard “knew what would
happen and should have taken D.S. out of the apartment instead of leaving for work.” Id.
Dr. Mueller noted that Kelley did not express remorse or concern over the trauma she had
caused, which Dr. Mueller found odd, and that Kelley seemed oblivious that her actions had
been life-threatening. Kelley talked with Dr. Mueller about hearing voices and being
paranoid, and Dr. Mueller believed that Kelley was hearing voices during the interview
despite Kelley’s denial of any auditory hallucinations. Dr. Mueller’s review of Kelley’s
FCCC records revealed mental health treatment dating back to 2004. In 2008 Kelley
required a psychiatric consult after having been brought into an ER when police found her
naked in the snow. She was diagnosed with bipolar disorder, severe with psychotic features.
In 2010 FCCC again saw Kelley for intake, and during intake Kelley discussed her legal
issues and two suicide attempts, and she was diagnosed with generalized anxiety disorder and
bipolar disorder. Her chart was closed when she did not return for care after the intake,
despite FCCC’s attempts to contact her. Her history of outpatient care indicated a theme of
not accepting recommended treatment. Dr. Mueller concluded that Kelley met the state
guidelines for the insanity defense, that Kelley had had “a paranoid episode characterized by
more than likely hallucinations commenting about her future stepdaughter, D.S. [that]
caused her to act in an aggressive, assaultive manner.” Id. at 5. Dr. Mueller then concluded
6
that Kelley was unable to appreciate the wrongfulness of her conduct at the time of the
offense.
Dr. John Yarling evaluated Kelley on August 22, 2011, and also reviewed her records
from FCCC (he was not given copies of the police reports). He conducted an interview with
no psychological testing. Dr. Yarling summarized some of the events from Kelley’s FCCC
records, including her diagnosis with bipolar disorder, severe with psychotic features, and her
history of missing appointments and discontinuing medications. During his interview with
her, Kelley “presented very limited information regarding the incident with which she” was
charged, and he noted that he had no other information about the incident beyond what she
told him. Exh. B at 4. She reported to him that at the time of the incident she felt a “strong
force” to harm D.S. and that a voice had told her to hurt D.S. Id. She had felt this force and
heard this voice before and in the past has complied with it—by wrecking her car in 2003, for
example. In 2009 though, she heard the voice and decided to wreck her car rather than
comply with the thought she was having of choking her son. Dr. Yarling noted that “[s]ome
of her comments suggested that she recognizes she should not become violent to herself or
others.” Id. She also told him that some of her moods are accompanied by thoughts that she
cannot control, including hallucinations and delusions. He noted that she told him she had
not been taking her anti-psychotic medication regularly for some time prior to the incident
and that she believed that may have caused the attack; he also noted that she had been
prescribed a long-lasting form of the drug that is usually injected intramuscularly every two
weeks, but there is no indication in the record of when her last dose may have been given
7
prior to the incident. As far as a determination of her mental status at the time of the
incident, Dr. Yarling found it “difficult as so little information regarding the incident” was
known to him, and he hoped that additional information would be revealed during her trial.
Id. Nevertheless, he concluded that “Kelley’s description of her thoughts preceding the
incident taken together with her history of previous serious mental illness is consistent with a
recurrence of that illness at the time of the incident” and that it was therefore his “opinion
with reasonable medical certainty, based upon [his] evaluation of Ms. Kelley and the
information available to [him] that she was unable to appreciate the wrongfulness of her
conduct at the time of the offense as a result of her mental disease.”2 Id. He noted that at the
time of his evaluation, Kelley was taking an anti-psychotic medication and she was in control
of herself and was able to respond appropriately to his questions and provide details about
her life (although she provided very little about the incident underlying this case).
Kelley waived her right to a jury trial, and on October 15, 2012, a bench trial was
held. No testimony was taken, and the parties stipulated to the police reports, the two
psychiatrist reports, and some of D.S.’s medical records from her stay in the ICU. The
parties gave closing argument, and the court took the matter under advisement. On January
11, 2013, the court issued its written order finding Kelley not guilty on count I and guilty but
mentally ill on the remaining counts. On February 8, 2013, the court sentenced Kelley to an
aggregate term of 4,800 days comprised of time served on count VI, aggravated sentences on
the remaining counts, and all counts except count V ordered to be served consecutively. The
2
Both Dr. Yarling and Dr. Mueller also concluded that Kelley was competent to stand trial.
8
court found no mitigating factors and four aggravating factors: the harm, injury, and loss
suffered by D.S. was significant and greater than the elements necessary to prove the
commission of the offense; Kelley had a significant history of criminal behavior;3 Kelley had
recently violated conditions of probation; and Kelley was in a position of care, custody, or
control over D.S. The court also ordered that, because Kelley was found guilty but mentally
ill, she be further evaluated and treated for her mental illness while in the Department of
Correction. This appeal followed.
Discussion and Decision4
I. Determination of Sanity
A. Standard of Review
Indiana Code section 35-41-3-6 provides that “[a] person is not responsible for having
engaged in prohibited conduct if, as a result of mental disease or defect, he was unable to
appreciate the wrongfulness of the conduct at the time of the offense” and defines “mental
disease or defect” as “a severely abnormal mental condition that grossly and demonstrably
impairs a person’s perception, but the term does not include an abnormality manifested only
by repeated unlawful or antisocial conduct.”
Whether a defendant can appreciate the wrongfulness of his conduct is a question for
the trier of fact. Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004). A defendant who
3
A presentencing report revealed that Kelley had two prior felony convictions, two prior
misdemeanor convictions, and one pending felony in another county.
4
We heard oral argument on November 21, 2013, at the Michigan City High School in Michigan
City, Indiana. We thank the students, faculty, and staff of the school for the gracious reception, and
counsel for their presentations.
9
claims that his insanity defense should have prevailed at trial appeals from a negative
judgment, and we will only reverse when the evidence is without conflict and leads only to
the conclusion that the defendant was insane when the crime was committed. Id. We do not
reweigh the evidence and we consider only the evidence most favorable to the judgment and
the reasonable and logical inferences drawn therefrom. Id. The question is whether the
inferences supporting the judgment were reasonable, not whether there were other “more
reasonable” inferences that could have been made. Id. at 1150.
The insanity defense is an affirmative defense for which the defendant has the burden
of proof. Id. at 1148. The State must prove all of the elements of the offense beyond a
reasonable doubt, but need not disprove insanity. Id. In order to succeed with an insanity
defense, the defendant must establish the defense by a preponderance of the evidence. Id. at
1149; see also Ind. Code § 35-41-4-1. A successful insanity defense results in the defendant
being found not responsible by reason of insanity. Galloway v. State, 938 N.E.2d 699, 708
(Ind. 2010); see Ind. Code § 35-41-3-6(a). Because mental illness alone is not enough to
establish the defense—the defendant must also show that the illness caused him to be unable
to appreciate the wrongfulness of his conduct—a defendant who is mentally ill but fails to
establish that he was unable to appreciate the wrongfulness of his conduct may be found
guilty but mentally ill. Galloway, 938 N.E.2d at 708.
B. Trial Court’s Finding of Kelley as Guilty but Mentally Ill
Kelley argues that it was contrary to law for the trial court to find her guilty but
mentally ill where the medical evaluations were unanimous that she was insane at the time of
10
the incident and there was no contradictory lay testimony. Kelley cites to our supreme
court’s case of Barany v. State, 658 N.E.2d 60, 63 (Ind. 1995), and contends that without
contradictory lay testimony, the court was not permitted to issue a judgment in contravention
of the determination made by the psychiatrists. The State replies, citing to Thompson, that as
the trier of fact the judge in this case was free to reject the expert testimony.
A series of cases from our supreme court illuminate the boundaries of a trial court’s
ability to override the determination of psychiatrists. In Barany, the facts at trial were
stipulated, all three appointed psychiatrists agreed that Barany was incapable of appreciating
the wrongfulness of his conduct at the time of the incident, but the jury returned a verdict of
guilty but mentally ill. 658 N.E.2d at 63. Our supreme court upheld the verdict because the
State had offered testimony from lay witnesses that indicated that Barany was sane. Our
supreme court concluded that the jury could have decided that this testimony was more
indicative of Barany’s actual mental health at the time of the killing than were the medical
examinations conducted weeks later. Id. at 64.
In Thompson, the defendant pleaded not guilty by reason of insanity and waived her
right to a jury trial. 804 N.E.2d at 1148. The parties submitted the matter to the trial judge
based on stipulated evidence, including the reports of court-appointed psychiatrists who
concluded that Thompson was not able to understand the wrongfulness of her conduct. The
trial court found Thompson guilty but mentally ill. Our supreme court held that, although
expert opinions provide a “strong justification for raising the insanity defense,” they are not
necessarily determinative. Id. at 1149. The trier of fact is free to disregard expert testimony
11
and rely upon the testimony of lay witnesses. Id. The court noted that “testimony regarding
behavior before, during, and after a crime may be more indicative of actual mental health at
the time of the crime than mental exams conducted weeks or months later.” Id. (citing to
Barany, 658 N.E.2d at 64). However, the court also concluded that conflicting lay testimony
is not required for the trier of fact to reject expert testimony and as a general rule,
“factfinders are not required to believe a witness’s testimony even when it is uncontradicted.”
Id. In that case, the court determined that the trier of fact was entitled to prefer other
evidence in the record over the psychiatric examinations conducted weeks or months later.
Specifically, at the sentencing hearing, the trial judge had cited Thompson’s “history of
avoiding criminal responsibility through her illness, her conflicting stories about what
happened to her medication, her decision to use illegal drugs and drink alcohol while on her
medication, and lies she told one of the examining psychiatrists regarding that use of drugs
and alcohol” and had concluded that Thompson knew her actions were wrong but was using
her illness to manipulate the system. Id. at 1150. Additionally the State pointed to further
evidence in the record that would support the trial court’s findings, including that Thompson
took only her own possessions from the victim’s home after breaking in as indicating her
awareness of right and wrong, and the decision of police officers who stopped Thompson to
release her as indicating they believed her to be lucid enough to go about her business. Id. at
1149.
Finally, in Galloway, our supreme court expanded on Thompson and further
illuminated the appellate standard of review following a finding regarding sanity at the trial
12
court level, observing that the standard is deferential but not impossible. 938 N.E.2d at 709.
The court noted that each time it had previously upheld a conviction sustaining the trier of
fact’s determination of sanity, even where there was non-conflicting expert testimony that the
defendant was insane, there had been “other sufficient probative evidence from which a
conflicting inference of sanity reasonably could be drawn.” Id. at 710. Such probative
evidence is usually in the form of lay testimony that conflicts with the experts, but may also
come from other “probative demeanor evidence from which a conflicting inference of sanity
may be drawn.” Id. at 712. The court noted that such demeanor evidence may be most
useful where there is some indication that the defendant is feigning insanity, although it may
also be appropriate in cases where there is no evidence of feigning. Id. at 712-13. The court
also noted that demeanor evidence is of more limited value when the defendant has a long
history of mental illness, because the ability of the trier of fact to infer that a person’s actions
around the time of a crime are indicative of his actual mental health at the time of the crime is
logical when the defendant is not prone to delusions or hallucinations, but when the
defendant has a serious and well-documented mental disorder, that logic collapses. Id. at
713. The court concluded that evidence of demeanor during the crime is more probative than
evidence of demeanor before and after a crime, and that, in general, demeanor evidence must
be considered as a whole and in relation to all of the other evidence. Id. at 714. In the
Galloway case, our supreme court determined that there was not sufficient evidence of
probative value from which the trier of fact could have drawn an inference of sanity to
conflict with the unanimous expert testimony. Id. There had been no lay witness testimony
13
that conflicted with the experts’ opinions, and in fact three eyewitnesses testified that
Galloway had been showing familiar signs of “losing it.” Id. Additionally, the trial court had
based its findings on the fact that Galloway had shopped, eaten, and filled his car with gas
that day without incident, and that Galloway had cooperated with the police after the
incident. Id. at 715. The Galloway court concluded that while those activities may represent
normal events, “when viewed against the defendant’s long history of mental illness with
psychotic episodes, the defendant’s demeanor during the crime, as testified to by three
eyewitnesses, and the absence of any suggestions of feigning or malingering, this demeanor
evidence is simply neutral and not probative of sanity.” Id.
The question here, then, is whether there is sufficient probative evidence in the record
from which the trial court could have inferred that Kelley was sane at the time of the
stabbing, contrary to what the two psychiatrists determined. The record with this case is thin,
and the trial court gave no indication in its judgment as to how it determined that Kelley was
guilty but mentally ill rather than insane. While both psychiatrists seem to have reached their
conclusions based on very little information, given that Kelley would not talk much about the
incident, and they seem to have come to their conclusions on her mental status at the time of
the crime based largely on her mental health history, the rest of the record is similarly devoid
of much evidence. Shepard stated that there had been something wrong with Kelley that
morning and she had been different since she returned from her mother’s house that
weekend, but he did not think she was capable of hurting D.S. D.S. said the only weird thing
about Kelley before she began hitting D.S. was that she had said her kids made her mad and
14
she was looking for money and an ID. The police report indicates that Kelley initially
complied with officers but then became combative, yelled for water, told them she had not
done anything, and remained unruly at the jail. Both psychiatrists referenced Kelley’s mental
health record, which spans several years, and includes multiple visits with FCCC and various
prescriptions for mental health conditions.
While it appears that there was a limited foundation for the psychiatrists’
determinations, there is even less on which the trial court could have decided to disregard
those determinations. Kelley has a documented history of mental illness, and there is no
suggestion that she is feigning. Kelley’s interactions with police officers after the incident—
yelling for water, saying that she did not do anything—do not bolster a finding of sanity.
Kelley’s statement to Dr. Mueller that Shepard “knew what would happen,” may indicate that
Kelley understood the conduct, but does not necessarily indicate that she appreciated the
wrongfulness of that conduct at the time of the action; Dr. Mueller’s report suggests, in fact,
that Kelley did not appreciate the wrongfulness of her conduct even in hindsight. In short,
there was no lay witness testimony and little demeanor evidence from which the court could
have deduced, contrary to the two psychiatrists, that Kelley was sane at the time of the
incident. Relevantly, it seems that the only places from which the trial court could have
drawn inferences of sanity are from certain statements within the psychiatrists’ reports.
However, unlike additional testimony or evidence produced at a more “typical” trial, those
statements here were explicitly considered by the psychiatrists when reaching their
determinations that Kelley was legally insane at the time of the incident. While we
15
sympathize with the difficult decision the trial court had to make in the face of a thin record
and no live testimony, we conclude that there was not “other sufficient probative evidence
from which a conflicting inference of sanity reasonably could be drawn,” and therefore the
trial court’s finding of guilty but mentally ill was in error. Galloway, 938 N.E.2d at 710. We
remand for the trial court to enter a finding of not guilty by reason of insanity on all counts of
which Kelley was originally convicted.
II. Sufficiency of the Evidence
Although we have concluded that the trial court should have found Kelley not guilty
by reason of insanity, we address the issues of sufficiency of the evidence and double
jeopardy and conclude that, had we upheld the trial court’s finding of guilty but mentally ill,
we nonetheless would have reversed Kelley’s confinement conviction.
A. Standard of Review
The standard for reviewing sufficiency of the evidence claims is well settled. We do
not reweigh the evidence or assess the credibility of the witnesses. West v. State, 755 N.E.2d
173, 185 (Ind. 2001). Rather, we look to the evidence and reasonable inferences drawn
therefrom that support the verdict and will affirm the conviction if there is probative evidence
from which a reasonable trier-of-fact could have found the defendant guilty beyond a
reasonable doubt. Id.B. Identification of Kelley
Kelley first contends that there was insufficient evidence to convict her of any of the
crimes because there was no in-court identification or other evidence linking Kelley to the
16
Tammy Kelley named in the police reports. This argument is unpersuasive. Both parties
stipulated to the police reports, and Kelley did not object to their admission. There was never
even a suggestion below that this Kelley was not the Kelley referenced in the reports. In fact,
in opening statements her counsel said that the only question before the court was whether
Kelley was legally responsible for the crimes—implying that there was no question about
whether she had committed the crimes.
C. Battery of Police Officers
Kelley next argues that there is insufficient evidence to support the two convictions
for battery of a law enforcement officer, because there was no evidence that the officers
suffered physical pain as a result of her kicking them in the groin. On the contrary, one of
the police reports notes that both officers complained of “pain and discomfort in the groin
area as a result of Kelley’s strikes.” Exh. 1 at 4. Any degree of bodily pain may constitute
bodily injury for the purposes of the battery statute. See Bailey v. State, 979 N.E.2d 133, 142
(Ind. 2012). Sufficient evidence supported these convictions.
D. Confinement
Kelley also argues that there is insufficient evidence to support her conviction for
confinement because there is no evidence that she knowingly or intentionally confined D.S.
or removed D.S. from the apartment. The criminal confinement statute provides that criminal
confinement has occurred when a person 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,” and enhances the offense
17
to a Class C felony if “the person confined or removed is less than fourteen (14) years of age
and is not the confining or removing person’s child.” Ind. Code § 35-42-3-3. The State
argues that the sheer number of injuries indicate that D.S.’s liberty had been restrained and
that Kelley restrained that liberty using a knife and a locked door, thus hindering D.S.’s
ability to escape. We have previously held that in order to prove confinement beyond the
main crime charged, there must be something more than the act necessary to effectuate the
crime. Cunningham v. State, 870 N.E.2d 552, 553 (Ind. Ct. App. 2007). Moreover, “[a]n
inference of confinement does not arise from evidence of injury to the victim.” Id. at 554. If,
however, the confinement is more extensive than necessary to commit the main offense, then
conviction for confinement may be proper. Williams v. State, 889 N.E.2d 1274, 1281 (Ind.
Ct. App. 2008), trans. denied.
Here, there is little to indicate confinement beyond battery. There is no indication that
Kelley locked the door to the apartment to keep D.S. from escaping, and it is entirely possible
that the door was locked from when Shepard had left earlier that morning. At one point, D.S.
did report to the police that Kelley had her “on the floor, stabbing her and she [D.S.] rolled
away from [Kelley] and got to the door.” Exh. 2 at 6. However, having D.S. on the floor
during part of the stabbing would be related to the attempted murder of which Kelley was
acquitted.5 The rest of the record does not indicate that Kelley otherwise held D.S. or
blocked her, and D.S. indicated that she was moving around and dodging Kelley during the
5
The stabbing is the only part of the incident that could have gone to the attempted murder
charge.
18
attack. We conclude that there was insufficient evidence to support Kelley’s conviction for
criminal confinement.
III. Double Jeopardy: Kelley’s Battery and Confinement Convictions
Although we have determined that there was insufficient evidence to support Kelley’s
conviction for criminal confinement, we briefly address the closely-related issue of double
jeopardy. Kelley argues that her convictions for confinement and battery of D.S. were
based on the same actual evidence and thus violate double jeopardy.
Our supreme court has concluded that two offenses are the same offense for double
jeopardy purposes 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.” Richardson v. State, 717
N.E.2d 32, 49 (Ind. 1999) (emphasis in original). Under the actual evidence test, “the actual
evidence presented at trial is examined to determine whether each challenged offense was
established by separate and distinct facts.” Id. at 53. To find a double jeopardy violation
under this test, we must conclude that 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.” Id. A
“reasonable possibility” requires substantially more than a logical possibility, and “turns on a
practical assessment of whether the [fact finder] may have latched on to exactly the same
facts for both convictions.” Garrett v. State, 992 N.E.2d 710, 719-20 (Ind. 2013) (quoting
Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008)). “We evaluate the evidence from the [fact
19
finder’s] perspective and may consider the charging information, jury instructions, and
arguments of counsel.” Id. at 720.
Here, the charging information stated the elements of the crimes but did not include
details to indicate which facts supported the individual charges. See Richardson, 717 N.E.2d
at 51 (“Although the State may choose to do so, it is not required to include detailed factual
allegations in the charging instrument.”) (emphasis in original). Confinement was never
mentioned in the arguments of either Kelley or the State at the trial. While it is possible that
the court could have concluded that Kelley punching D.S. in the face supported the battery
charge and stabbing D.S. while she was on the floor supported the confinement charge—
setting aside for the moment the attempted murder charge—that is mere guesswork. The
emphasis in both the record submitted to the court as well as the opening and closing
arguments at trial was on the stabbings and on Kelley’s mental status. We note that the State,
in its brief, argues first that the confinement charge is supported by the sheer number of
injuries inflicted on D.S., and later that “[t]he confinement continued between batteries.”
Brief of Appellee at 11. At oral argument, however, the State argued that Kelley holding
D.S. down during part of the stabbing constituted confinement. This confusion on the part of
the State as to which actions supported the confinement charge further indicate that there is a
reasonable possibility that the trial court used the same facts to establish both the
confinement and battery convictions. Thus, if we had reached the issue of double jeopardy,
we would have concluded that Kelley’s confinement conviction was barred by double
jeopardy.
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Conclusion
Concluding that the trial court erred in contravening the unanimous determination of
the psychiatrists that Kelley was insane at the time of the incident, we reverse and remand
with instructions for the trial court to enter a finding of not guilty by reason of insanity.
Reversed and remanded.
RILEY, J., and KIRSCH, J., concurs.
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