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. May 03 2013, 8:20 am
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JERRY T. DROOK GREGORY F. ZOELLER
Marion, Indiana Attorney General of Indiana
CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DENNIS C. BURGHER, )
)
Appellant-Defendant, )
)
vs. ) No. 27A02-1210-CR-825
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE GRANT SUPERIOR COURT
The Honorable Dana J. Kenworthy, Judge Pro Tempore
Cause No. 27D02-1206-FB-136
May 3, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Dennis Burgher (“Burgher”) was convicted of Class D felony criminal
confinement in Grant Superior Court. He appeals his conviction and argues that the State
presented insufficient evidence to prove that he substantially interfered with the victim’s
liberty.
We affirm.
Facts and Procedural History
On June 14, 2012, Burgher and Jayme Jones (“Jayme”), who were romantically
involved, were staying at Burgher’s mother’s home in Griffith, Indiana. However, Jayme
left the residence that day at the request of Burgher’s mother and left behind her
medication and clothing.
The next day, Burgher’s cousin drove him to Linda Pearce’s home in Swayzee,
Indiana, where Jayme was staying to return her clothing and medication to her. When
Burgher arrived at the residence, he did not immediately deliver Jayme’s personal items
to her, but confronted Jayme about a voicemail Jayme had received from another man.
Burgher then struck Jayme, which caused her to fall into a closet located near the
home’s front door. Burgher got on top of Jayme and continued to hit her. Jayme could
not get away from Burgher and saw that he had a knife. Jayme was able to wrestle the
knife away from him and threw it further into the closet.
Jayme’s friend, Pearce, called 911 after she heard Jayme screaming and saw
Burgher hitting her. Jayme eventually broke free of Burgher and tried to run through the
front door when Burgher grabbed Jayme from behind by her hair and pulled her back into
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the closet. Burgher then fled the house. However, Burgher was quickly apprehended by
the responding police officers.
On June 18, 2012, Burgher was charged with Class B felony criminal confinement,
Class C felony intimidation, Class D felony residential entry, Class D felony
misdemeanor battery resulting in bodily injury, and Class A misdemeanor battery
resulting in bodily injury. Approximately two months later, a jury trial was held and
Burgher was ultimately found guilty only of Class D felony criminal confinement and
Class A misdemeanor battery resulting in bodily injury. The jury returned not guilty
verdicts on the remaining charges. A sentencing hearing was held on September 17,
2012, and the trial court ordered Burgher to serve an aggregate three-year sentence in the
Department of Correction. Burgher now appeals his criminal confinement conviction.
Discussion and Decision
Burgher argues that the evidence is insufficient to support his Class D felony
criminal confinement conviction. Upon a challenge to the sufficiency of evidence to
support a conviction, we neither reweigh the evidence nor judge the credibility of the
witnesses; instead, we respect the exclusive province of the trier of fact to weigh any
conflicting evidence. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We consider
only the probative evidence and reasonable inferences supporting verdict, and we will
affirm if the probative evidence and reasonable inferences drawn from the evidence could
have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable
doubt. Id.
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To prove that Burgher committed Class D felony criminal confinement, the State
was required to establish that he knowingly or intentionally confined Jayme without her
consent. See Ind. Code § 35-42-3-3. To confine means “to substantially interfere with
the liberty of a person.” Ind. Code § 35-42-3-1. Burgher argues that he did not
“substantially interfere” with Jayme’s liberty.
The defendant in Hardley v. State, 893 N.E.2d 1140 (Ind. Ct. App. 2008),
summarily aff’d by 905 N.E.2d 399 (Ind. 2009), raised the same argument. In that case,
Hardley became upset because the victim took a cigarette out of his backpack. Hardley
slapped the victim causing her to fall onto a mattress. He then beat her and restrained her
by pinning her down on the mattress. Yet, the victim was able to reach her phone, knock
it off the hook, and dial 911. Our court concluded that Hardley substantially interfered
with the victim’s liberty even though she was able to reach the telephone because
Hardley was holding her down and she could not get off the mattress. In so holding, our
court observed, “[w]e are unaware of any authority holding that complete incapacitation
is required in order to establish a substantial interference with liberty, and decline [to]
impose such a requirement today.” Id. at 1144.
In this case, Burgher hit Jayme causing her to fall into the closet. Jayme testified
that Burgher “got on top of” her and kept hitting her. Tr. p. 275. Jayme tried to get out
of the closet and screamed at Burgher to get off of her. When asked whether Burgher
was on top of her “in such a way that” she could not get away from him, Jayme
responded, “[y]eah . . . I couldn’t get out . . . I couldn’t even turn.” Tr. p. 277. After
Jayme managed to wrestle the knife away from Burgher, she got away from him and ran
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towards the front door. But Burgher grabbed her hair from behind and pulled her back
into the closet. Two other eyewitnesses testified that Burgher was on top of Jayme while
she lay on the floor of the closet. Tr. pp. 376, 389-90.
The encounter between Jayme and Burgher was brief, but the confinement statute
has no minimum time element. See, e.g., McDonald v. State, 511 N.E.2d 1066, 1068
(Ind. 1987) (affirming a conviction for confinement where the defendant pinned the
victim to the ground and the “entire incident happened in a matter of seconds”). The
State proved that Burgher substantially interfered with Jayme’s liberty when he knocked
her down to the floor of the closet, “got on top of” her, and would not allow her to
remove herself from the closet. For these reasons, we affirm Burgher’s Class D felony
criminal confinement conviction.
Affirmed.
BAKER, J., and MAY, J., concur.
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