Delon Churchill v. State of Indiana

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:

CHRISTOPHER A. CAGE GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana

GARY R. ROM
Deputy Attorney General
Indianapolis, Indiana
FILED
Sep 13 2012, 9:21 am

IN THE CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court

DELON CHURCHILL, )
)
Appellant-Defendant, )
)
vs. ) No. 48A02-1111-CR-1108
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Thomas Newman, Jr., Judge
Cause No. 48D03-1007-FB-323

September 13, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
 Appellant-defendant Delon Churchill appeals his convictions for Robbery, 1 a class

B felony, and four counts of Criminal Confinement,2 a class B felony. Specifically,

Churchill argues that testimony regarding a telephone call that his mother made to the

police constituted inadmissible hearsay and its admission into evidence violated his right

of confrontation. Churchill also contends that he is entitled to a reversal of his

convictions because there were several instances of prosecutorial misconduct, that the

convictions for both robbery and criminal confinement violated double jeopardy

principles, and that he was improperly sentenced.

We conclude that the admission of the evidence regarding the telephone call that

Churchill’s mother made to law enforcement officials was properly admitted into

evidence and that there was no prosecutorial misconduct. However, Churchill’s

convictions and sentences on the confinement counts must be vacated in light of double

jeopardy principles. Finally, we conclude that the trial court did not abuse its discretion

in sentencing Churchill and that the twenty-year sentence imposed for robbery was not

inappropriate.

The judgment of the trial court is affirmed in part, reversed in part, and remanded

with instructions that the trial court vacate the convictions and sentences on the four

confinement counts.

1
Ind. Code § 35-42-3-3(a)(1)(b)(2)(A).
2
I.C. § 35-42-3-3(a)(1)(b)(2)(A).

2
 FACTS

Shortly before 11:00 a.m. on July 16, 2010, Churchill entered the First Merchant’s

Bank (Bank) in Anderson. No other customers were inside, and Churchill approached the

teller counter and asked Jason Horning to change three $20 bills into $5 bills. After

Horning removed the money from the drawer, Churchill produced a handgun and said,

“this is a robbery,” and demanded that Horning give him money. Tr. p. 196, 199, 229.

The teller next to Horning, Jama Doyle, looked up when she heard this, and Churchill

pointed the gun at her face and told her to raise her hands. Churchill also pointed the gun

at Tim Hunt, the branch manager, and Preston Beamer, the drive-through teller, and

instructed them to put their hands up.

Churchill told Horning to use a bank courier bag for the money. Although

Horning began to empty the money from his drawer into the courier bag, he left “bait

money” in the drawer because Churchill stated that he did not want any “funny money”

or a dye pack. Tr. 201, 233, 257. The bait money consisted of ten $10 bills and was the

only money that was wrapped with a band that had a teller stamp on it. The bait money

had also been photocopied.

Churchill instructed Horning to retrieve the money from the drive-through where

Beamer had been balancing the drive-through drawer before Churchill entered. Horning

walked to the drive-through area and Churchill told him to move faster. Horning placed

the money in the bag, and when he returned to his drawer, Churchill told him to empty

the rest of his drawer. This time Horning placed the bait money and mutilated marked

3
money into the bag. Horning returned the bag, which included nearly $6455 of the

bank’s money. Before Churchill left, he pointed his gun at the employees and told

Horning to lie on the ground and Hunt to lie next to Horning. Churchill then told Beamer

and Doyle to lie on top of Horning and Hunt with their faces towards the ground.

Churchill exited the bank, and after the bank employees were sure that Churchill was

gone, Horning locked the front door and tripped an alarm to alert the police.

After the robbery occurred, Churchill’s identity remained unknown, so a

photograph taken from the bank’s surveillance video was released to various news outlets

around the Indianapolis area and to local newspapers. No details concerning the robbery

were released other than the photograph. At some point, Churchill’s mother called the

police and told them that her son was the robber. Meanwhile, Tyson McCoy, who was a

friend of Churchill, borrowed his brother’s identification card to rent a motel room and

drove Churchill to a Muncie motel. Once Churchill’s identity was known, law

enforcement officials obtained a warrant to trace Churchill’s location through his cell

phone. The police learned that Churchill was in a Muncie motel and waited outside his

room to arrest him.

When Churchill exited the room, he was arrested. He had a large duffel bag with

him that contained approximately $2600 in cash, including all of the bait money that had

been photocopied. Inside the motel room was Churchill’s identification card, the band

that wrapped the bait money, and mutilated money.

4
 An investigator compiled a photo array and showed it to the four bank employees.

Doyle, Horning, and Hunt all identified Churchill as the bank robber from those pictures.

It was established that Churchill wore a red Philadelphia Phillies baseball cap during the

robbery. At some point, police officers found a red Philadelphia Phillies baseball cap

near a security fence on the eastside of the bank’s property. The brim of the cap

contained DNA evidence in which at least two people could not be excluded as

contributors. Churchill was one who could not be excluded as a contributor to the DNA.

It was also determined that the day before the robbery, a law enforcement officer came

into contact with Churchill and saw him wearing such a cap.

When Churchill was incarcerated, he told a cellmate that he was in jail for bank

robbery. Churchill confessed to his cellmate that he asked the teller to make change,

demanded that the money be put in the bag, and said that he “stacked the people on top of

each other.” Tr. p. 406. Churchill also acknowledged that when he fled from the bank,

he dropped his hat in a parking lot. Churchill also explained that a man named “Ty” was

driving the getaway vehicle and that they split the money. Churchill then stated that Ty

took him to a Muncie hotel and dropped him off there.

On July 19, 2010, the State charged Churchill with Count I, robbery, a class B

felony, and four counts (II-V) of class B felony criminal confinement. Churchill’s jury

trial commenced on October 25, 2011.

During opening statements, the deputy prosecutor told the jury that Churchill’s

mother had identified him as the robber. And during the testimony of Detective Randy

5
Tracy of the Anderson Police Department, the deputy prosecutor was permitted, over

objection, to have Detective Tracy recount, to the jury, the statements that Churchill’s

mother gave to the jury. The deputy prosecutor argued that the statements were

admissible because they were being offered, not for the truth of the matter asserted, but to

show why the police investigation was focused on Churchill.

The trial concluded on October 28, 2011, with the jury finding Churchill guilty as

charged. On November 14, 2011, the trial court sentenced Churchill on Count I, robbery,

and Count II, criminal confinement, to twenty years of imprisonment to the Indiana

Department of Correction (DOC) to be served consecutively. Churchill also received

twenty years of imprisonment at the DOC on each remaining confinement count to be

served concurrently with the confinement charge in Count II. Thus, Churchill received

an aggregate sentence of forty years of incarceration in the Indiana Department of

Correction (DOC).

In imposing the sentence, the trial court identified Churchill’s criminal history, the

fact that he was on probation when he committed the offense, the fact that he was on

parole when he committed the offense, and the fact that he was charged with another

offense while the charges in this case were pending as aggravating factors. The trial

court found no mitigating factors. Churchill now appeals.

6
 DISCUSSION AND DECISION

I. Admission of Evidence

Churchill claims that the trial court erred in permitting his mother to testify at trial

that she had contacted Detective Tracy on the night of the robbery to report that it was

her son in the photographs that were shown on the news. Churchill maintains that the

testimony was inadmissible hearsay and that it violated his right to confrontation.

The admission or exclusion of evidence falls within the sound discretion of the

trial court, and the determination regarding the admissibility of evidence is reviewed on

appeal only for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.

2002). An abuse of discretion occurs when the trial court’s decision is clearly against the

logic and effect of the facts and circumstances before it. Id. In determining the

admissibility of evidence, we will only consider the evidence in favor of the trial court’s

ruling and the unrefuted evidence in the defendant’s favor. Sallee v. State, 777 N.E.2d

1204, 1210 (Ind. Ct. App. 2002). We will not reverse the trial court’s decision to admit

or exclude evidence if that decision is sustainable on any ground. Crawford v. State, 770

N.E.2d 775, 780 (Ind. 2002).

At trial, the following exchange occurred between the deputy prosecutor and

Detective Tracy:

Q [You] spoke to a person named Regina Churchill, is that correct?

A Yes, I did.

Q What information did she provide to you?

7
 A That she knew who did the robbery from looking at the newscast.

...

Q What information did she provide you detective? Did the [sic] give you
the name of the person she said was involved in the robbery?

A Yes. She gave me the name of Delon Churchill.

Q Did she tell you who that person was?

A Yes, her son.

Q Her son. Once you got the name of Delon Churchill, did you begin
focusing the investigation on the defendant?

A Yes, I did.

Tr. p. 479-80.

We initially observe that to preserve an issue for appeal, a defendant must make a

contemporaneous objection, on the same grounds as those raised on appeal, at the time

the evidence is elicited at trial. Haycraft v. State, 760 N.E.2d 203, 211-12 (Ind. Ct. App.

2001). Also, an evidentiary objection at trial that was based only on the rules of evidence

is not sufficient to preserve a claim that is premised on the Sixth Amendment. Perry v.

State, 956 N.E.2d 41, 51 (Ind. Ct. App. 2011).

At trial, Churchill objected to the above testimony claiming only that it was

inadmissible hearsay. Tr. p. 478. However, on appeal, Churchill maintains that the

testimony violated his right to confront witnesses pursuant to the Sixth Amendment to the

United States Constitution. As a result, Churchill has waived the constitutional issue.

8
 Waiver notwithstanding, we note that in Crawford v. Washington, the United

States Supreme Court held that the Sixth Amendment does not permit the admission of

testimonial statements of a witness who does not appear at trial unless he or she is

unavailable to testify and the defendant had a prior opportunity to cross-examine the

witness. 541 U.S. 36 at 53-54. The Crawford Court did not offer a comprehensive

definition of testimonial evidence, but it declared that “[w]hatever else the term covers, it

applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or

at a former trial; and to police interrogations. These are the modern practices with closest

kinship to the abuses at which the Confrontation Clause was directed.” Id. at 68.

Crawford also described testimonial statements as:

[E]x parte in-court testimony or its functional equivalent—that is, material
such as affidavits, custodial examinations, prior testimony that the
defendant was unable to cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used prosecutorially; extrajudicial
statements . . . contained in formalized testimonial materials, such as
affidavits, depositions, prior testimony, or confessions; statements that were
made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later
trial. . . .

The definition of testimonial statements was then clarified in Davis v.

Washington, as follows:

Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an
ongoing emergency. They are testimonial when the circumstances
objectively indicate that there is no such ongoing emergency, and that the
primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.

9
547 U.S. 813, 822 (2006).

In concluding that the statements at issue in Davis were not testimonial, the

following factors were considered: (1) whether the declarant was speaking about events

as they were actually happening or describing past events; (2) whether the declarant was

facing an ongoing emergency; (3) whether the questions asked by law enforcement were

such that they elicited statements necessary to resolve the present emergency rather than

simply to learn about past events; and (4) the level of formality of the interrogation. Id.

at 827-28.

In our view, the tip that was provided by Churchill’s mother identifying him as the

robber was nontestimonial, because there was no formal interrogation and the

information was not gathered in preparation of future litigation. See Wright v. State, 916

N.E.2d 269, 277 (Ind. Ct. App. 2009) (finding the statements were not testimonial in part

because they were not elicited for the preparation of litigation).

As noted above, Churchill’s mother contacted the local police after seeing a

picture of the robber on the local media outlets. The statements were not made in the

formal setting of an official statement to police or during police interrogation. Rather,

her statements were used to solve the ongoing emergency of locating an armed and

dangerous robber. Thus, the statements were nontestimonial in nature and did not

infringe on Churchill’s Sixth Amendment right to confrontation.

Also, with regard to Churchill’s claim that the testimony quoted above constituted

inadmissible hearsay evidence, we note that hearsay has been defined as “a statement,

10
other than one made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” Ind. R. Evid. 801(c). “An out-of-

court statement introduced to explain why a particular course of action was taken during

a criminal investigation is not hearsay because it is not offered to prove the truth of the

matter asserted.” Goodson v. State, 747 N.E.2d 1181, 1185 (Ind. Ct. App. 2001).

In this case, the State sought to introduce the testimony from Detective Tracy

about Churchill’s mother’s telephone call to establish why law enforcement focused its

investigation on Churchill. Tr. p. 478. The identity of the robber was unknown when

Detective Tracy received the call from Churchill’s mother. Id. at 475.

As noted above, Indianapolis television stations and local newspapers had shown a

picture of the robber. Id. at 380, 390. Churchill’s mother called Detective Tracy when

she saw the photo and recognized the robber as her son. Id. at 479-80. The State sought

to admit the testimony, “not for [the purpose] of proving the truth of the matter asserted,

but [to explain] why the investigation focused on the defendant and why we just didn’t

pull him out of the sky as the person involved in this crime.” Id. at 478.

By the time that the State had elicited Detective Tracy’s testimony, the State had

not yet established why the police were pursuing Churchill as the suspect. In essence,

Detective Tracy’s testimony of the phone call served that purpose and permitted the State

to show the jury why the police had undertaken a particular course of action.

Finally, we note that even though the testimony established why law enforcement

officials focused their investigation on Churchill, a reasonable level of assurance is

11
required to show that the third-party statement was not received by the trier of fact as

evidence of truth. Goodson, 747 N.E.2d at 1185. “[T]hat assurance may arise from an

immediate limiting instruction or from the sketchiness of the testimony itself.” Id.

Indeed, at Churchill’s trial, the trial court gave the following limiting instruction:

“Ladies and Gentlemen the answer isn’t offered for [its] truthfulness or the falsity of it,

whether or not it was true or not true. It’s being offered to show why the police officer

then proceeded to conduct an investigation in the way that they did.” Id. at 479.

In light of this instruction, and for all of the reasons discussed above, we conclude

that the trial court did not abuse its discretion in admitting the testimony regarding

Churchill’s mother’s contact with Detective Tracy.

II. Prosecutorial Misconduct

Churchill next claims that his convictions must be reversed because various

instances of prosecutorial misconduct occurred. Specifically, Churchill argues that the

deputy prosecutor’s reference to Churchill’s mother’s telephone call to the police

constituted misconduct. Churchill also maintains that the deputy prosecutor was

attempting to prevent the jury from seeking the truth or was implying that defense

counsel was attempting to circumvent the justice system through falsity, that he

improperly interjected race into the proceedings, that the deputy prosecutor improperly

expressed his personal opinion as to whether the photograph of the robber looked like

Churchill, and that he made improper comments about members of the black community

in Madison County who have gold teeth.

12
 A. Standard of Review

The review of a prosecutorial misconduct claim requires two steps. First, we must

determine whether the prosecutor engaged in misconduct. Carter v. State, 956 N.E.2d

167, 169 (Ind. Ct. App. 2011), trans. denied. We then determine “whether the

misconduct, under all of the circumstances, placed the defendant in a position of grave

peril to which he should not have been subjected.” Id. The gravity of peril is measured

by the probable persuasive effect of the misconduct on the jury’s decision rather than the

degree of impropriety of the conduct. Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002).

When the error is not preserved by a contemporaneous objection, as are the

circumstances here, the defendant must not only establish the grounds for prosecutorial

misconduct but also the grounds for fundamental error in order to succeed on his claim.

Id. at 818. Fundamental error is a “substantial, blatant violation of due process” that is so

prejudicial to the rights of the defendant that a fair trial was impossible. Hall v. State,

937 N.E.2d 911, 913 (Ind. Ct. App. 2010).

B. Churchill’s Claims

As discussed above, the deputy prosecutor initially introduced evidence of the

telephone call from Churchill’s mother for the purpose of establishing why the police

focused its investigation on Churchill. The State subsequently published the recording of

Detective Tracy interrogating Churchill to the jury. Included in the interrogation was

evidence that Churchill’s mother had called Detective Tracy to identify Churchill as the

robber.

13
 Churchill did not object during the State’s opening statement, and the deputy

prosecutor’s statements were not improper because they were based on evidence that was

properly admitted at trial. Thus, the deputy prosecutor did not commit misconduct by

commenting on substantive evidence, and Churchill has failed to show that any error

occurred.

Next, Churchill’s counsel during final argument maintained that the large amount

of cash in Churchill’s possession was drug money and that McCoy, Churchill’s

accomplice, was also probably in the room. The deputy prosecutor responded to

Churchill’s counsel as follows:

Do you believe that whopper that you just heard? You need to send him
home. You really do, if you believe that, you need to send him home. Mr.
Alger, a massive amount of evidence. You know what, when you’re a
defense attorney, you’re Mr. Alger sitting over there trying to defense [sic]
this massive amount of evidence, you’ve gotta start making stuff up. Where
did you hear any evidence from anyone anybody [sic] else was in that
room? You heard evidence that another person got the room for him. You
never heard anybody say anybody else was in that room. Mr. Alger has to
stretch the truth and the evidence and fool you, manufacture the illusion of
reasonable because the facts don’t support his case. Who said that? Who
said that anybody else ever in that room? The evidence was that Tyson
McCoy rented that room with Wade McCoy’s ID. That’s the evidence.
There was never any evidence anybody was in that room. Never any
evidence that a drug transaction took place. He says that as an excuse to
explain why he’s got several thousand dollars. There was never any
evidence that someone sold him any crack and he used the money from the
bait money, but Mr. Alger has to make that up.

Tr. p. 575-76.

In our view, it is apparent that the deputy prosecutor was not arguing that defense

counsel was attempting to prevent the jury from seeking the truth or that defense counsel

14
desired to circumvent the justice system through falsity. Rather, the deputy prosecutor

was responding to defense counsel’s arguments and emphasizing that the evidence

presented at trial did not support his argument. By doing so, we cannot say that the

deputy prosecutor engaged in misconduct. See Cooper v. State, 854 N.E.2d 831, 836

(Ind. 2006) (holding that prosecutors may respond to allegations and inferences raised by

the defense even if the prosecutor’s response would otherwise be objectionable).

Even assuming solely for the sake of argument that the comments amounted to

misconduct, there is no indication that Churchill was placed in grave peril such that a fair

trial was impossible. Indeed, the State presented substantial evidence against Churchill.

See Paschall v. State, 825 N.E.2d 923, 925 (Ind. Ct. App. 2005) (noting that even though

the prosecutor’s conduct was unprofessional, the State nonetheless presented a strong

case against the defendant and thus the misconduct did not place the defendant in grave

peril).

Next, Churchill contends that the deputy prosecutor interjected race into the

proceedings when defense counsel did not. However, defense counsel implied that it was

easy for the employees at the Bank to make their in-court identifications of Churchill as a

robber because Churchill was an African-American man, as was the robber. Tr. p. 569-

70. That said, there is no indication that the deputy prosecutor sought a conviction

because of Churchill’s race. See Appellant’s App. p. 20. In fact, the deputy prosecutor

asserted that Churchill’s race had nothing to do with his guilt. Rather, it was made clear

that Churchill was guilty because the evidence supported his guilt beyond a reasonable

15
doubt. Tr. p. 575-76. Moreover, it appears that any reference to race made by the deputy

prosecutor was in response to the allegations and inferences raised by defense counsel.

Defense counsel further argued that the photograph of the bank robber from the

surveillance video looked like Churchill, but he believed it “very easily” could have been

McCoy. Tr. p. 566. Defense counsel remarked that a “high percentage” of African-

Americans between the ages of twenty and thirty have gold or silver teeth. Tr. p. 568.

Churchill claims that the deputy prosecutor improperly expressed his personal opinion

concerning whether the photograph of the robber looked like Churchill and about

members of the black community in Madison County who have gold teeth.

More particularly, the deputy prosecutor first argued that the jury could tell by

examining the photograph of the robber that it was Churchill. Id. at 577. The deputy

prosecutor then countered defense counsel’s assertion that a “high percentage” of

African-Americans have gold or silver teeth. Id. at 579. As stated earlier, a prosecutor is

permitted to respond to allegations and inferences raised by the defense even if the

response would otherwise be objectionable. Dumas v. State, 803 N.E.2d 1113, 1118

(Ind. 2004). Thus, even had Churchill objected to the prosecutor’s comments, there is no

showing that he was placed in grave peril. For all these reasons, Churchill’s prosecutorial

misconduct claims fail.

III. Double Jeopardy Claims

Churchill next claims that his convictions for both robbery and four counts of

criminal confinement cannot stand. Specifically, Churchill argues that the double

16
jeopardy provision of the Indiana Constitution was violated when the trial court entered a

judgment of conviction and sentences for both robbery and criminal confinement because

his actions of confining the victims “were simply those that were necessary to commit

robbery.” Appellant’s Br. p. 22.

In resolving this issue, we note that in accordance with Article 1, Section 14 of the

Indiana Constitution, two or more offenses are the “same offense” for double jeopardy

purposes when “with respect to either the statutory elements of the charged crimes or the

actual evidence used to convict, the essential elements of one challenged offense also

establish the essential elements of another offense.” Vanzandt v. State, 731 N.E.2d 450,

455 (Ind. Ct. App. 2000) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind. 2000)).

As to the “actual evidence test,” the necessary inquiry is “whether each offense

was established by separate and distinct facts.” Id. To establish a double jeopardy

violation, the defendant must demonstrate a reasonable probability 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 the second challenged offense. Id.

To determine what facts were used by the jury, we consider the evidence, charging

information, final jury instructions, and arguments of counsel. Goldberry v. State, 821

N.E.2d 447, 459 (Ind. Ct. App. 2005).

The crime of robbery consists of taking property “by using or threatening the use

of force” or “by putting any person in fear.” Ind. Code § 35-42-5-1. Criminal

17
confinement consists of confining a person or removing the person by fraud, enticement,

force, or threat of force from one place to another. Ind. Code § 5-42-3-3.

Our Supreme Court has held that “where the confinement of a victim is greater

than that which is inherently necessary to rob [the victim], the confinement, while part of

the robbery is also a separate criminal transgression.” Hopkins v. State, 759 N.E.2d 633,

639 (Ind. 2001). Thus, where the criminal episode was “protracted” over time, and the

criminal confinement of the victims had been “completed” by their removal from one

floor of the residence to another before being robbed, there was “no substantial likelihood

that the jury based its determination of guilt on the confinement counts upon the evidence

of the incidental confinement at the moment of the robbery.” Id. at 640.

In this case, the charging information alleges in its first count that Churchill, while

“armed with a deadly weapon,” took money from the four bank employees by “by using

or threatening the use of force”; in its second count, that “while armed with a deadly

weapon,” he “confine[d]” Jason Horning. In its third count, that “while armed with a

deadly weapon,” he “confine[d]” Preston Beamer. The information alleged in its fourth

count that Churchill, “while armed with a deadly weapon,” “confine[d]” Jama Doyle; in

its fifth, that “while armed with a deadly weapon,” he “confine[d]” Tim Hunt.

Appellant’s App. p. 166-70.

The trial court’s final instructions included the allegations that were set forth in the

charging information. The final instructions also specified the elements that the State

must prove beyond a reasonable doubt by mirroring the allegations contained in the

18
charging information, including that Churchill, “while armed with a deadly weapon, . . .

took property from . . . [Bank] personnel Jason Horning, Preston Beamer, Jama Doyle

and Tim Hunt, . . . “while armed with a deadly weapon.” Appellant’s App. p. 21. The

informations also stated that Churchill “knowingly “confine[d] . . . Hunt, Beamer,

Horning and Doyle . . . without their consent, . . . .while armed with a deadly weapon, to-

wit: a handgun.” Id. at 21-23.

In its opening statement, the deputy prosecutor indicated that the evidence would

establish that Churchill entered the Bank, displayed his gun, demanded money from the

tellers, took money from them, and left the bank. The deputy prosecutor made no

reference to any further act of confinement. Tr. p. 179-92. In its closing argument, the

State asserted that Churchill devised a scheme to rob the Bank, entered the building with

a “gun in his hand, scaring people to death, taking their money, laying them down on the

floor, thing [sic] their [sic] gonna be shot. Thought they were gonna be killed. . . .” Id. at

546-47. Later in its rebuttal argument, the deputy prosecutor asserted that the jury

should find Churchill guilty of “robbing a bank and confining those people and forcing

them at gunpoint to lay on the floor.” Id. at 585.

In addition to the above, all four victims were consistent when testifying that they

had not been moved from one location to another. Rather, they acknowledged that they

were forced to lie on the floor behind the bank counter where they were standing. Other

than directing Beamer and Doyle to lie on top of Horning and Hunt, at no time did

Churchill try to move or otherwise confine the victims. No physical contact occurred

19
between Churchill and the victims, and there were no threats made other than the

pointing of the gun at the victims. Thus, the evidence, charging information, instructions,

and argument did not clearly portray the commission of both robbery and confinement as

distinct offenses.

The entire criminal episode was brief, and the testimony of the witnesses

established that the confinement in all instances was coextensive with the robbery.

Again, the victims were not moved, they were directly behind the counter at all times,

and Churchill exited the building as soon as all of the employees were on the ground. In

short, the confinement was no greater than necessary to accomplish the robbery. Harvey

v. State, 719 N.E.2d 406, 411 (Ind. Ct. App. 1999).

To further illustrate, in Vanzandt v. State, 731 N.E.2d 450 (Ind. Ct. App. 2000),

the evidence established that the armed defendant had ordered the victims to lie on the

floor while he took money from the cash register and fled. A panel of this Court found

“an absence of evidence to establish the essential elements of the confinement of [the

victim] independent of the robbery of [the victim].” Id. at 455. Thus, the defendant had

“demonstrated a reasonable possibility that the jury used the same evidentiary facts to

establish criminal confinement of [the victim] as a class B felony as it did to establish the

essential elements or robbery of [the victim] as a class B felony.” Id.

In this case, like Vanzandt, Churchill’s “forcing” the victims “to lie on the floor”

was “not separate and apart from the force used to effect the robbery.” That said, these

facts demonstrate a reasonable possibility that the jury used the same evidentiary facts to

20
establish Churchill’s criminal confinement of the robbery victims and to establish the

essential elements of robbery of the victims. Hence, a violation of the double jeopardy

clause of the Indiana Constitution has occurred, and Churchill’s convictions and

sentences for criminal confinement must be vacated.

IV. Sentencing

A. Abuse of Discretion

Churchill next argues that the trial court abused its discretion in sentencing him.

Specifically, Churchill maintains that the “trial court’s imposition of maximum

consecutive sentences herein was not supported by the required sentencing statement.”

Appellant’s Br. p. 25.

We note that sentencing is principally a discretionary function in which the trial

court’s judgment should receive considerable deference. Cardwell v. State, 895 N.E.2d

1219, 1222 (Ind. 2008). A trial court may impose any sentence “within the allowable

range for a given crime without a requirement to identify specific aggravating or

mitigating circumstances.” Id. “The trial court must enter a statement including

reasonably detailed reasons or circumstances for imposing a particular sentence.” Id.

We may review the reasons given and the omission of reasons arguably supported by the

record for abuse of discretion; however, the “relative weight or value assignable to

reasons properly found or those which should have been found is not subject to review

for abuse.” Id.

21
 A sentencing court abuses its discretion only if its decision was “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.” Anglemyer v. State, 868 N.E.2d

482, 490 (Ind. 2007), clarified on reh’g on other grounds, 875 N.E.2d 218 (Ind. 2007).

An abuse of discretion will also be found if the trial court (1) fails “to enter a sentencing

statement at all[,]” (2) enters “a sentencing statement that explains reasons for imposing a

sentence—including a finding of aggravating and mitigating factors if any—but the

record does not support the reasons,” (3) enters a sentencing statement that “omits

reasons that are clearly supported by the record and advanced for consideration,” or (4)

considers reasons that “are improper as a matter of law.” Id. at 490-91.

Contrary to Churchill’s contention that the trial court’s sentencing statement was

inadequate, it made the following remarks:

Aggravating circumstances is the defendant has a history of criminal and
delinquent activity, as noted in the pre-sentence report. He also was on
probation at the time the alleged offense occurred. He was on parole
supervision when this offense occurred. He also accrued new criminal
charges while incarcerated in Madison County Jail pending these [sic] case.
No mitigating circumstances.

Tr. p. 624.

From the above, it is apparent that the trial court clearly identified four reasons for

the sentence it imposed. Thus, Churchill’s claim that the trial court abused its discretion

in sentencing him fails. See Webb v. State, 941 N.E.2d 1082, 1088 (Ind. Ct. App. 2011)

22
(noting no abuse of discretion when the trial court’s sentencing statement listed four

aggravating circumstances), trans. denied.3

B. Inappropriate Sentence

Churchill also argues that the sentence that was imposed was inappropriate. More

specifically, Churchill contends that the imposition of the maximum sentence in light of

the circumstances of the offenses and his character is inappropriate.

We have the constitutional authority to revise a sentence if it is determined that the

sentence is “inappropriate in light of the nature of the offense and the character of the

offender.” Ind. Appellate Rule 7(B). We are required to give “due consideration” to the

trial court’s sentencing decision. Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). The

principal role of appellate review is to attempt to “leaven the outliers.” Cardwell, 895

N.E.2d at 1225. In making this determination, we may look to any factors appearing in

the record. Calvert v. State, 930 N.E.2d 633, 643 (Ind. Ct. App. 2010). The defendant

bears the burden of persuading this Court that his sentence is inappropriate. Anglemyer,

868 N.E.2d at 494.

We also note that the question under Appellate Rule 7(B) analysis is “not whether

another sentence is more appropriate” but rather “whether the sentence imposed is

inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). In analyzing

the appropriateness of a sentence we concentrate “less on comparing the facts of this case

3
Although Churchill contends that the trial court also abused its discretion in ordering consecutive
sentences in this case, we need not address this issue because we have vacated the convictions and
sentences with regard to the four confinement counts on double jeopardy grounds. Thus, only Churchill’s
sentence for robbery stands.
23
to others, whether real or hypothetical, and more on focusing on the nature, extent, and

depravity of the offense for which the defendant is being sentenced, and what it reveals

about the defendant's character.” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.

2008).

To assess the appropriateness of the sentence, we look first to the statutory ranges

established for the classes of the offenses. Here, the advisory sentence for a class B

felony is ten (10) years, the shortest sentence is six (6) years, and the longest sentence is

twenty (20) years. Ind. Code § 35-50-2-6. As noted above, we have ordered the

convictions and sentences on the confinement counts vacated. Thus, Churchill’s

inappropriate sentence argument is limited to the maximum twenty-year sentence that the

trial court imposed on the robbery count.

As for the nature of the offense, the record shows that four victims were involved

in the robbery, and two of the bank employees reported emotional injuries. Specifically,

both Hunt and Doyle suffered from anxiety and job stress as a result of the robbery.

Appellant’s App. p. 157-58. Although no actual physical injuries resulted to any of the

victims, Churchill’s nature of the offense argument avails him of nothing.

As for Churchill’s character, the record shows that he was twenty-five years old

when he committed the offense. As a juvenile, Churchill was found to be a delinquent

child on four occasions, which included a disposition for conversion and battery.

Appellant’s App. p. 154. As an adult, Churchill has been convicted of three drug-related

24
offenses: possession of cocaine and marijuana, both misdemeanors, and class B felony

dealing in cocaine. Id. at 155-56.

Churchill was incarcerated in 2005 for his dealing in cocaine conviction and was

released sometime in 2009 to parole which is not to end until September 2012. Id. at

156-57. Churchill also has convictions for operating a vehicle without ever obtaining a

license and for resisting law enforcement. Id. After Churchill committed the instant

offense, he was charged with possession of cocaine. Id. at 156. Since being incarcerated

for this offense, Churchill has been charged with battery resulting in serious bodily

injury, a class C felony; intimidation, a class D felony; and false informing, a class B

misdemeanor. Id. at 157. Churchill has also previously violated his probation and had

another probation violation filed against him. Id. at 155-56. And as for the instant

offense, Churchill was on probationary supervision at the time, and the State filed a

parole violation against him. Id. at 157. Churchill’s past conduct shows that he is a high

risk for recidivism. See Malenchik v. State, 928 N.E.2d 564, 569 (Ind. 2010)

(recognizing that the goals of “individual penal consequences” is reformation and

minimizing recidivism).

The record also demonstrates that Churchill was affiliated with a gang and

participated in the group at the time he committed the offense. Appellant’s App. p. 157.

He also has a history of substance abuse. Id. at 159. Churchill first used marijuana at the

age of thirteen and admitted that he was under the influence of it when he committed the

instant offense. Id. Churchill’s first used cocaine when he was fifteen years old, and he

25
last used the drug on the day of his arrest. Id. Churchill also reported that he abused

prescription drugs. Id. at 159.

In light of this evidence, it is apparent that prior attempts of probation, parole, and

incarceration have not rehabilitated Churchill. Along with his frequent contacts with the

criminal justice system, Churchill’s admitted illegal drug use demonstrates that he is not

living a law-abiding life. A record of repeated rehabilitation failures indicates that

Churchill has no respect for the law and for the opportunities afforded him, has no desire

to conform his conduct to that of a law-abiding citizen, and continues to reoffend.

As a result, Churchill has failed to show that his sentence is inappropriate when

considering the nature of the offense and his character.

CONCLUSION

In light of our discussion above, we conclude that the admission of the evidence

regarding the telephone call that Churchill’s mother made to law enforcement officials

was properly admitted into evidence. While we find that there was no prosecutorial

misconduct, Churchill’s convictions and sentences on the confinement counts must be

vacated in light of double jeopardy principles. Finally, we conclude that the trial court

did not abuse its discretion in sentencing Churchill and that the twenty-year sentence

imposed for robbery was not inappropriate.

26
 The judgment of the trial court is affirmed in part, reversed in part, and remanded

with instructions that the trial court vacate the convictions and sentences on the four

confinement counts.

ROBB, C.J., concurs.

BRADFORD, J., dissents with separate opinion.

27
 IN THE
COURT OF APPEALS OF INDIANA

DELON CHURCHILL, )
)
Appellant-Defendant, )
)
vs. ) No. 48A02-1111-CR-1108
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

BRADFORD, Judge, dissenting

I agree with the majority that evidence regarding the telephone call made by

Churchill’s mother was properly admitted and that there was no prosecutorial

misconduct. Because I cannot, however, agree that Churchill’s four criminal

confinement convictions run afoul of prohibitions against double jeopardy, I respectfully

dissent.

As we have noted, “[t]he offense of confinement requires proof of a substantial

interference with a person’s liberty without the person’s consent.” Lyles v. State, 576

N.E.2d 1344, 1352 (Ind. Ct. App. 1991), trans. denied, abrogated on other grounds by

Peterson v. State, 650 N.E.2d 339 (Ind. Ct. App. 1995). This interference can be

28
accomplished either by “confin[ing] another person without the other person’s consent”

or “remov[ing] another person, by fraud, enticement, force, or threat of force, from one

(1) place to another[.]” Ind. Code § 35-42-3-3. In cases where a person is charged with

both robbery and criminal confinement, the Indiana Supreme Court has explained that

“where the confinement of a victim is greater than that which is inherently necessary to

rob them, the confinement, while part of the robbery, is also a separate criminal

transgression.” Hopkins v. State, 759 N.E.2d 633, 639 (Ind. 2001). In my view, this is

precisely what happened here. Only after securing the money bag from Horning–thereby

completing the robbery–did Churchill point his gun at the bank employees, tell Horning

and Hunt to lie on the ground, and tell Beamer and Doyle to lie on Horning and Hunt.

This timing of events, in my view, distinguishes this case from Vanzandt v. State, 731

N.E.2d 450 (Ind. Ct. App. 2000), in which the victims were confined no longer than the

time needed to steal the cash from the register and the vehicle parked in front of the store.

Id. at 452. I do not believe there is a reasonable possibility that the jury relied on the

same actual evidence to convict Churchill of robbery and four counts of criminal

confinement and so would affirm all of his convictions. Additionally, for reasons cited

by the majority in its analysis, I would affirm the forty-year aggregate sentence imposed

by the trial court.

29