Robert M. King v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be Nov 04 2013, 6:41 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELIZABETH A. BELLIN GREGORY F. ZOELLER
Elkhart, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBERT M. KING, )
)
Appellant-Defendant, )
)
vs. ) No. 20A03-1303-CR-105
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable George W. Biddlecome, Judge
Cause No. 20D03-1006-FB-19
November 4, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Robert M. King appeals his convictions for three counts of criminal confinement,
as Class B felonies, following a jury trial.1 King presents the following issues for review:
1. Whether the trial court violated double jeopardy principles under the
Indiana Constitution when it entered judgment of conviction on two
counts of criminal confinement, as Class B felonies, in which King’s
wife was the victim.
2. Whether the evidence is sufficient to support his conviction for
criminal confinement with regard to his child W.K.
We affirm.
FACTS AND PROCEDURAL HISTORY
On the evening of June 3, 2010, a very intoxicated King and his wife, C.K., were
in their apartment in Elkhart. Also in the home were their two children, M.K., a daughter,
and W.K., a son. King and C.K. began arguing about money missing from their budget.
King demanded to know where sixty dollars had gone, and C.K. denied any knowledge
of the missing money. C.K. went to bed at 12:30 a.m., but after she fell asleep King
woke her and attempted to resume the argument. C.K. told him to leave her alone, but
he placed a leg or knee on her, put a knife to her throat, and threatened to slit her throat if
she did not tell him where the missing money was. C.K. was frightened and did not
believe she could leave the room at that point.
W.K. woke when he heard his mother scream. He went into his parents’ bedroom,
where he saw his father holding a knife to C.K.’s neck. W.K. asked what was going on,
which startled King. King rose off C.K. and went to a dresser on the other side of the
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King was also convicted of attempted aggravated battery, as a Class B felony, but he does not
appeal that conviction.
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bed. W.K. knew that his father kept a gun in that dresser, so W.K. began to back out of
the room. C.K. told W.K. to go back to his room and lock his door, which he did.
Wielding the gun, King walked to W.K.’s bedroom door and told him to come out of his
room so he “could put a bullet in [W.K.’s] head,” but W.K. did not open the door.
Transcript at 68. W.K. later left his room through the window and went to a friend’s
home, staying there until later the following day.
Still holding the gun, King told C.K. to go to the kitchen and made her sit on the
floor. C.K. sat on the floor in front of the refrigerator. She did not believe she could
leave because King was holding a handgun, waving the butt end at her, and he told her
she was not going anywhere. King continued to demand to know where the money from
their budget was. At some point, M.K. woke and told King to leave C.K. alone. King
told M.K. to go back to her room, and she did. When M.K. realized King was angry
about missing money, she retrieved money from her room and tried to give it to him, but
he refused to take it. King also told M.K. to have W.K. come out of his room, but there
was no answer when M.K. knocked on W.K.’s door.
While King and M.K. were in the hallway briefly, C.K. fled the kitchen and
attempted to leave, but King “slammed the door and told [her] she couldn’t leave” and
then “took her by the hair and threw her back to the kitchen floor.” Id. at 149, 151. C.K.
began to cry. King then took some lighter fluid and said that if C.K. did not tell him
where the money was, he would pour the fluid on her and set her on fire. When C.K.
continued to deny knowing anything about the missing money, King “sloshed” the fluid
around, and some of it landed on C.K.’s arm. Id. at 40. King then took a lighter, lit it,
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and threw it toward C.K., but the flame extinguished when he released the lighter. M.K.
telephoned police, and when officers arrived they arrested King.
The State charged King with four counts of criminal confinement, as Class B
felonies, and one count of attempted aggravated battery, as a Class B felony. A jury trial
was held January 7 and 8, 2013. At the close of evidence, King moved for directed
verdicts on the counts alleging criminal confinement of M.K. and W.K. and on the
attempted aggravated battery count. Following argument by counsel, the trial court
denied the motion. The jury returned guilty verdicts on all counts except the one alleging
criminal confinement of M.K., for which it acquitted him. The trial court sentenced King
to twelve years for each criminal confinement count and two years for attempted
aggravated battery, to be served concurrently. King now appeals.
DISCUSSION AND DECISION
Issue One: Continuing Crime Doctrine
King contends that his convictions violate the common law double jeopardy
principle known as the continuing crime doctrine. We have explained the continuing
crime doctrine as follows:
“The continuing crime doctrine essentially provides that actions that are
sufficient in themselves to constitute separate criminal offenses may be so
compressed in terms of time, place, singleness of purpose, and continuity of
action as to constitute a single transaction.” Riehle v. State, 823 N.E.2d
287, 296 (Ind. Ct. App. 2005), trans. denied. “[T]he continuing crime
doctrine reflects a category of Indiana’s prohibition against double
jeopardy.” Walker v. State, 932 N.E.2d 733, 736 (Ind. Ct. App. 2010). As
we have explained:
The statutory elements and actual evidence tests [of double
jeopardy, as described in Richardson v. State, 717 N.E.2d 32(Ind. 1999),] are designed to assist courts in determining
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whether two separate[ly] chargeable crimes amount to the
“same offense” for double jeopardy purposes. The
continuous crime doctrine does not seek to reconcile the
double jeopardy implications of two distinct[,] chargeable
crimes; rather, it defines those instances where a defendant’s
conduct amounts only to a single[,] chargeable crime. In
doing so, the continuous crime doctrine prevents the state
from charging a defendant twice for the same continuous
offense.
Boyd v. State, 766 N.E.2d 396, 400 (Ind. Ct. App. 2002) (emphasis
original)[, trans. denied]. That is, “while Indiana’s double jeopardy clause
prohibits convicting a defendant of two or more distinct[,] chargeable
crimes when they constitute the ‘same offense’ . . . , it also prohibits”
charging a defendant “multiple times for the same continuous offense.”
Walker, 932 N.E.2d at 736-37.
Chavez v. State, 988 N.E.2d 1226, 1228 (Ind. Ct. App. 2013), trans. denied.
Here, King contends that his convictions for two counts of Class B felony criminal
confinement of C.K. were “one continuous criminal act justifying only one confinement
conviction.” Appellant’s Brief at 7. Specifically, he argues that there was
no distinction between the confinement that took place in the bedroom and
the confinement of [C.K.] in the kitchen. Although [King] had two
different weapons for each moment, it cannot be said that [C.K.] was ever
free from detention and at liberty between when she was in the bedroom to
when [King] moved her to the kitchen.
Id. at 9. We cannot agree.
To prove criminal confinement, as a Class B felony, as charged in the counts
related to C.K., the State was required to show that King knowingly or intentionally
confined C.K. while King was armed with a deadly weapon. Ind. Code § 35-42-3-
3(a)(1), (b)(2)(A). “‘A confinement ends when the victim both feels free and is, in fact,
free from detention, and a separate confinement begins if and when detention of the
victim is re-established.’” Penrod v. State, 810 N.E.2d 345, 346 (Ind. 2004) (quoting
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Boyd v. State, 766 N.E.2d at 400). King contends that there was “no distinction between
the confinement that took place in the bedroom and the confinement of [C.K.] in the
kitchen.” Appellant’s Brief at 9. But King ignores the brief time during which C.K. fled
the kitchen while he was in the hallway with M.K. C.K. was free during that time, as
shown by the fact that King had to prevent her from fleeing the apartment when he
slammed the front door, took her by the hair, and threw her back down in the kitchen.
The first period of confinement began when King put the knife to C.K.’s throat in
their bedroom and continued until C.K. fled the kitchen while King was in the hallway.
The second confinement began when King grabbed the momentarily free C.K. by the hair
and threw her back down on the kitchen floor. King has not shown that the continuous
crime doctrine is applicable here. As such, we affirm his convictions for two counts of
criminal confinement, as Class B felonies, with regard to C.K.
Issue Two: Directed Verdict
King also contends that the trial court erroneously denied his motion for judgment
on the evidence because the State had failed to prove he committed criminal confinement,
as a Class B felony, with regard to W.K. As this court has explained:
It is thoroughly settled in Indiana that a trial court may grant a motion for a
judgment on the evidence only “where there is a total absence of evidence
upon some essential issue, or where there is no conflict in the evidence and
it is susceptible of but one inference, and that inference is in favor of the
accused.” State v. Patsel, 240 Ind. 240, 245, 163 N.E.2d 602, 604 (1960).
See also State v. Casada, 825 N.E.2d 936, 937-938 (Ind. Ct. App. 2005).
On appeal, we use the same standard of review as the trial court in
determining the propriety of a judgment on the evidence. Id. at 937(citation omitted).
“When the trial court considers entering judgment on the evidence, it
must view the evidence in a light most favorable to the party against whom
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judgment on the evidence would be entered.” Id. A trial court may not
invade the province of the jury by weighing the evidence presented or the
credibility of witnesses. Patsel, 163 N.E.2d at 604. In fact, our Supreme
Court has held that a trial court is “not authorized under Trial Rule 50, in a
criminal case, to consider whether the evidence presented could be viewed
by a reasonable jury as constituting proof beyond a reasonable doubt.”
State v. Goodrich, 504 N.E.2d 1023, 1024 (Ind. 1987).
State v. Taylor, 863 N.E.2d 917, 919 (Ind. Ct. App. 2007). Obviously, “if the evidence is
sufficient to support a conviction on appeal, then the trial court’s denial of a Motion for a
Directed Verdict cannot be in error.” Huber v. State, 805 N.E.2d 887, 890 (Ind. Ct. App.
2004).
Here, the State alleged that King committed Class B felony criminal confinement
of W.K. because the State showed “confinement” of that child. As used in the criminal
confinement statute, “confine” means “to substantially interfere with the liberty of a
person.” Ind. Code § 35-42-3-1. King makes much of the fact that C.K., not King, told
W.K. to return to his room. The State counters that there was also evidence that King
told W.K. to go to his room. But we need not determine whether W.K.’s return to his
bedroom constitutes confinement under Section 35-42-3-3(a)(1). After W.K. had
returned to his room and locked the door, an armed King told W.K. to come out so he
“could put a bullet in [W.K.’s] head,” but W.K. did not open the door. Transcript at 68.
Indeed, W.K. left the apartment through his bedroom window instead of through the
door. The evidence shows that King substantially interfered with W.K.’s liberty to leave
his room and move about the apartment.
King’s focus on whether he told W.K. to go to his room is misplaced. To the
extent he argues that the evidence is insufficient in general to support his conviction with
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regard to W.K., King asks us to reweigh the evidence, which we cannot do. See Jones v.
State, 783 N.E.2d 1132, 1139 (Ind. 2003). We affirm King’s conviction for confinement
with regard to W.K.
Affirmed.
MATHIAS, J., and BROWN, J., concur.
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