FILED
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 Aug 14 2012, 8:53 am
establishing the defense of res judicata,
collateral estoppel, or the law of the CLERK
of the supreme court,
court of appeals and
case. tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DARREN BEDWELL GREGORY F. ZOELLER
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STACEY JOHNSON, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1201-CR-46
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Sheila A. Carlisle, Judge
Cause No. 49G03-1106-FA-46242
August 14, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Stacey Johnson appeals his convictions for robbery as a class A felony1 and
criminal confinement as a class D felony.2 Johnson raises one issue which we revise and
restate as whether Johnson’s convictions violate the prohibition against double jeopardy.
We affirm.
The relevant facts follow. In November 2010, Charles Krutz was retired and had
known Johnson for three or four months as Johnson and a person Krutz knew as Neff
used to “hang out” around Krutz’s building. Transcript at 61. On November 28, 2010,
Johnson and Neff stopped by Krutz’s residence between 10:00 and 12:00 p.m., and Neff
asked Krutz to borrow his car for an hour or two. Neff and Johnson did not return the car
that day, Krutz tried to call to check on his car, and nobody answered the phone until
Johnson finally answered the phone and said: “We’ll be back in about an hour.” Id. at 63.
Krutz was watching television and waiting and “kind of falling asleep,” when, at
4:00 a.m., Krutz heard a knock on his door, looked out the peephole, saw Johnson,
opened the door, and saw that Johnson was accompanied by someone wearing a
Halloween mask. Id. Johnson grabbed Krutz and threw him on the floor. Johnson then
wrapped duct tape around Krutz’s hands and legs. Krutz also eventually had “something
over [his] face and something in [his] mouth,” and Johnson “wrapped tape around that.”
Id. at 65. Johnson dragged Krutz from the front room, through the dining room, and into
the kitchen. At that point, Johnson tied Krutz up with an extension cord. Johnson then
poured a liquid on Krutz. Krutz did not know what the liquid was and thought: “Oh, shit.
1
Ind. Code § 35-42-5-1 (2004).
2
Ind. Code § 35-42-3-3 (Supp. 2006).
2
Now they’re going to set me on fire.” Id. at 67. Krutz “was laying there waiting to, you
know – for what was going to happen next, whether [he] was going to burst into flames
or whatever.” Id. Krutz did not hear any movement and was eventually able to free
himself after “45 minutes, an hour, something like that.” Id. at 68. Krutz was “really
short of breath” and realized that the liquid Johnson poured on him was bleach because
the color was gone from his pajamas. Id. Krutz’s television and cell phone were missing
from his residence. Krutz changed clothes and called the police from his neighbor’s
residence.
Indianapolis Metropolitan Police Officer Tracy Ryan responded to the call and
found Krutz outside of the residence when she arrived. Krutz was “very scared” and
shaking. Id. at 41. Krutz was having difficulty talking and was wheezing and coughing.
Officer Ryan smelled the very strong odor of bleach and had to exit Krutz’s residence
due to the overpowering odor of the bleach. An ambulance transported Krutz to the
hospital. Krutz “hurt all over” and suffered chemical pneumonia and rug burns and
remained in the hospital for two and one-half days. Id. at 74. Krutz also had more
difficulty breathing after the encounter.
On June 28, 2011, the State charged Johnson with Count I, burglary as a class A
felony; Count II, robbery as a class A felony; Count III, criminal confinement as a class B
felony; Count IV, battery as a class C felony; Count V, auto theft as a class D felony; and
Count VI, interference with reporting a crime as a class A misdemeanor. On December
9, 2011, the State dismissed Count I and Count VI.
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A jury found Johnson guilty of Count II, robbery as a class A felony; Count III,
criminal confinement as a class B felony; and Count IV, battery as a class C felony. The
jury found Johnson not guilty of Count V, auto theft as a class D felony. The court
vacated the conviction under Count IV, battery as a class C felony due to double jeopardy
concerns with Count II, robbery as a class A felony. The court also reduced the
conviction under Count III, criminal confinement, to a class D felony. The court
sentenced Johnson to forty years for robbery as a class A felony with thirty-eight years to
be served at the Department of Correction followed by two years of work release and two
years for criminal confinement as a class D felony. The court ordered that the sentences
be served concurrent with each other.
The issue is whether Johnson’s convictions violate the prohibition against double
jeopardy. The Indiana Constitution provides that “[n]o person shall be put in jeopardy
twice for the same offense.” IND. CONST. art. 1, § 14. The Indiana Supreme Court has
held that “two or more offenses are the ‘same offense’ in violation of Article I, Section
14 of the Indiana Constitution, 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).
Johnson argues that his convictions violate Indiana’s prohibition against double
jeopardy based upon the actual evidence test. Johnson argues that based on the charging
information, the arguments of counsel, and the evidence presented at trial, there is more
than a reasonable possibility that the jury relied on the same actual evidence to convict
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him of both criminal confinement and robbery. Specifically, Johnson argues that the
evidence that he tied Krutz and forced him to lie on the floor to prove criminal
confinement “is the very same as the evidence of force that the State emphasized in
arguing the Robbery charge.” Appellant’s Brief at 9.
The State argues that Johnson confined Krutz beyond the confinement necessary
to effectuate the robbery. The State also argues that Johnson committed the robbery by
placing Krutz in fear and that “[e]ven without the force used against Krutz, Johnson
placed Krutz in fear in order to rob Krutz.” Appellee’s Brief at 10. Thus, the State
argues that “[b]ecause the State also proved that Johnson committed robbery by placing
Krutz in fear, no double jeopardy violation occurred based on the use of force.” Id.
In his reply brief, Johnson argues that he did not take additional steps to confine
Krutz once he was tied up and his property taken. Johnson also argues that “although
Krutz was tied up and left on the floor for several hours, there is no evidence that Johnson
or his accomplice used additional force to confine him once the robbery was complete.”
Appellant’s Reply Brief at 2.
Under the actual evidence test, the evidence presented at trial is examined to
determine whether each challenged offense was established by separate and distinct facts.
Lee v. State, 892 N.E.2d 1231, 1234 (Ind. 2008). To show that two challenged offenses
constitute the “same offense” in a claim of double jeopardy, a defendant must
demonstrate 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. The Indiana Supreme Court has
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determined the possibility to be remote and speculative and therefore not reasonable
when finding no sufficiently substantial likelihood that the jury used the same evidentiary
facts to establish the essential elements of two offenses. Hopkins v. State, 759 N.E.2d
633, 640 (Ind. 2001) (citing Long v. State, 743 N.E.2d 253, 261 (Ind. 2001), reh’g
denied; Redman v. State, 743 N.E.2d 263, 268 (Ind. 2001)); Griffin v. State, 717 N.E.2d
73, 89 (Ind. 1999), cert. denied, 530 U.S. 1247, 120 S. Ct. 2697 (2000).
Application of the actual evidence test requires the court to identify the essential
elements of each of the challenged crimes and to evaluate the evidence from the fact-
finder’s perspective. Lee, 892 N.E.2d at 1234. In determining the facts used by the fact-
finder to establish the elements of each offense, it is appropriate to consider the charging
information, jury instructions, and arguments of counsel. Lee, 892 N.E.2d at 1234;
Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002).
“[U]nder the . . . actual evidence test, the Indiana Double Jeopardy Clause is not
violated when the evidentiary facts establishing the essential elements of one offense also
establish only one or even several, but not all, of the essential elements of a second
offense.” Spivey, 761 N.E.2d at 832-833. Generally, double jeopardy does not prohibit
convictions of confinement and robbery when the facts indicate that the confinement was
more extensive than that necessary to commit the robbery. Merriweather v. State, 778
N.E.2d 449, 454 (Ind. Ct. App. 2002) (citing Hopkins, 759 N.E.2d at 639; Thy Ho v.
State, 725 N.E.2d 988, 993 (Ind. Ct. App. 2000)).
Robbery consists of taking property “by using or threatening the use of force on
any person” or “by putting any person in fear.” Ind. Code § 35-42-5-1 (2004). Criminal
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confinement consists of confining a person or removing a person, by fraud, enticement,
force, or threat of force, from one place to another. Ind. Code § 35-42-3-3 (Supp. 2006).
Initially, we observe that the information and instruction related to robbery did not
limit an element of robbery to the act constituting criminal confinement. The charging
information and instruction relating to criminal confinement alleged that Johnson tied
Krutz’s hands and feet and forced him to lie on the floor.3 The charging information and
jury instruction for robbery mentioned that Johnson placed Krutz in fear or used or
threatened the use of force.4 Further, the record reveals that Krutz testified that he
3
The State’s charging information for criminal confinement stated:
STACEY M. JOHNSON, on or about NOVEMBER 28, 2010, did knowingly confine
Charles Krutz, without the consent of Charles Krutz, by tying his hands and feet and
forcing him to lie on the floor, which resulted in serious bodily injury, that is: rug burns,
pneumonia and extreme pain, to Charles Krutz[.]
Appellant’s Appendix at 55. Preliminary Instruction Number 7 addressed the criminal confinement
charge and stated in part:
Before you may convict the Defendant, the State must have proved each of the following
beyond a reasonable doubt:
1. The Defendant, Stacey M. Johnson
2. Knowingly
3. Confined Charles Krutz without his consent, by tying his hands and feet and
forcing him to lie on the floor.
4. And the confinement resulted in serious bodily injury that is: rug burns,
pneumonia and extreme pain, to Charles Krutz.
Id. at 119.
4
The State’s charging information for robbery stated:
STACEY M. JOHNSON, on or about NOVEMBER 28, 2010, did knowingly take from
the person or presence of Charles Krutz property, that is: a television set, cell phone, and
house and car keys, by putting Charles Krutz in fear or by using or threatening the use of
force on Charles Krutz, which resulted in serious bodily injury, that is: severe rug burns,
pneumonia and extreme pain, to Charles Krutz[.]
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thought Johnson was going to set him on fire and that Officer Ryan described Krutz as
“very scared” and shaking. Transcript at 41. See Redman, 743 N.E.2d at 268 (holding
that there was no sufficiently substantial likelihood that the jury relied on the evidence of
the abduction by removal to establish the overt act element of the conspiracy charge
where the trial court’s instructions clearly authorized any one of several bases for finding
the overt act element); Lee, 892 N.E.2d at 1235-1236 (discussing Redman and observing
that the Court had not found a double jeopardy violation when the fact supporting a first
charge could theoretically have served as the overt act of a conspiracy charge, but the
jury was instructed on additional facts supporting an overt act).
Next, we cannot say that the criminal confinement was coextensive with the
robbery. The Indiana Supreme Court has stated 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, 759 N.E.2d at 639.
The evidence shows that independent crimes were committed. The record reveals that
Appellant’s Appendix at 55. Preliminary Instruction Number 6 addressed the crime of robbery and stated
in part:
Before you may convict the Defendant, the State must have proved each of the following
beyond a reasonable doubt:
1. The Defendant, Stacey M. Johnson
2. Knowingly
3. Took property, that is: a television set, cell phone, and house and car keys from
the person or presence of Charles Krutz
4. By putting Charles Krutz in fear or by using or threatening the use of force on
Charles Krutz
5. And the commission of elements 1 through 4 resulted in serious bodily injury to
Charles Krutz, that is: severe rug burns, pneumonia and extreme pain to Charles
Krutz.
Id. at 118.
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Johnson grabbed Krutz, threw him on the floor, wrapped duct tape around Krutz’s hands
and legs, placed something over Krutz’s face and something in his mouth, dragged Krutz
through the dining room and into the kitchen, tied up Krutz with an extension cord and
poured bleach on him. Krutz was not able to free himself until forty-five minutes to an
hour later.
Based upon the record, we find no sufficient substantial likelihood, and thus
cannot say that Johnson has demonstrated a reasonable possibility, that the trier of fact
based its determination of guilt on the robbery count upon the evidence used to find
Johnson guilty of criminal confinement. The confinement of Krutz went beyond that
necessary to accomplish the robbery. Accordingly, the criminal confinement conviction
does not violate Johnson’s right against double jeopardy. See Merriweather, 778 N.E.2d
at 455-456 (holding that there was no reasonable possibility that the court used the same
evidentiary facts to convict the defendant of robbery and criminal confinement where the
defendant grabbed a victim’s arm and ordered her to empty the cash register drawers,
continued to hold her at gunpoint, ordered her to go to the manager’s office, and confined
her at gunpoint for nearly fifteen minutes before fleeing).
For the foregoing reasons, we affirm Johnson’s convictions for robbery as a class
A felony and criminal confinement as a class D felony.
Affirmed.
FRIEDLANDER, J., and DARDEN, Sr. J., concur.
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