Feb 03 2015, 9:52 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Gregory F. Zoeller
Madison, Indiana Attorney General of Indiana
William Hackl Brainard
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dustin McFadden February 3, 2015
Appellant-Defendant, Court of Appeals Cause No.
39A01-1404-CR-162
v. Appeal from the Jefferson Circuit
Court, The Honorable Darrell M.
Auxier, Judge
State of Indiana, Cause No. 39C01-1308-FB-846
Appellee-Plaintiff
Vaidik, Chief Judge.
Case Summary
[1] Dustin McFadden was convicted of Class B felony criminal confinement and
Class B misdemeanor battery. The trial court sentenced McFadden to six
months for battery and fourteen years for criminal confinement. McFadden
now appeals, challenging the sufficiency of evidence underlying his criminal-
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confinement conviction. He also argues that his sentence for criminal
confinement is inappropriate. Because there is no independent evidence to
establish confinement beyond the evidence used to establish that McFadden
committed battery, we conclude that the evidence is insufficient to support
McFadden’s criminal-confinement conviction. We therefore reverse and
remand with instructions.
Facts and Procedural History
[2] In August 2013 McFadden attended a birthday party for his fiancée’s child.
The party took place at the apartment complex where McFadden lived. John
Taulbee was also at the apartment complex that day. Taulbee and McFadden
knew each other; Taulbee had testified against McFadden’s sister in an
unrelated criminal case. Taulbee was visiting another resident of the apartment
complex. Tr. p. 126.
[3] Taulbee was standing outside talking to the resident when Gary Gibson,
McFadden’s stepfather, approached and hit him in the head three times.1 Id. at
132. Gibson then grabbed Taulbee’s ponytail and struck him in the face,
causing Taulbee to fall and hit his head on the pavement. McFadden and a
third man approached and began pushing, hitting, and kicking Taulbee. Id. at
136, 139, 265. McFadden also grabbed Taulbee’s hair. Id. at 136, 138, 265.
1
Gibson was McFadden’s co-defendant at trial.
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The men yelled, “We said we’d get you and we got you,” and called Taulbee a
“snitch” while they battered him. Id. at 139, 247, 295.
[4] Taulbee suffered significant injuries and was hospitalized for four days. Id. at
143. Doctors treated Taulbee for a fractured nose, subdural hematoma, an
abrasion to the back of his head, and a contusion near his left eye. See id. at
342-46, 355. Taulbee’s nose required surgery and his injuries compromised his
vision in his left eye for a period of time. Id. at 143-45. At trial, Taulbee
testified that the pain he suffered as a result of the battery was greater than a
past accident in which he lost his thumb in a shear press. Id. at 143 (“[I]’d
rather have my thumb get cut off again.”).
[5] The State charged McFadden with Class B felony aggravated battery, two
counts of Class B felony criminal confinement, and Class C felony battery
resulting in serious bodily injury. Appellant’s App. p. 81-83 (charging
informations). A jury found McFadden guilty of one count of Class B felony
criminal confinement and two counts of Class C felony battery resulting in
serious bodily injury.2 Id. at 245, 247-48. The trial court vacated one of
McFadden’s Class C felony battery convictions to avoid a double-jeopardy
violation. Still concerned that McFadden’s convictions for Class C felony
battery and Class B felony criminal confinement violated double jeopardy, the
trial court reduced McFadden’s remaining battery conviction to a Class B
2
The jury found McFadden guilty of a second count of Class C felony battery resulting in serious bodily
injury as a lesser-included offense of Class B felony aggravated battery. See Appellant’s App. p. 245.
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misdemeanor. See id. at 251-54. In its Judgment of Conviction, the court also
expressed concern about McFadden’s criminal-confinement conviction:
Criminal Confinement requires that the victim be removed from one
place to another. The charging information merely alleges that
[McFadden] removed the victim, not that the victim was removed
from one place to another. Furthermore, the Court is skeptical that
pulling one to the ground and battering them equates to removing a
victim from one place to another. If such were the case, merely
pushing someone down would constitute Criminal Confinement, a
Class D felony. The jury has spoken however and the Court will leave
it to the Court of Appeals to resolve this issue if it is raised on appeal.
Id. at 252.
[6] The trial court sentenced McFadden to a six-month executed sentence for
battery and a fourteen-year executed sentence for criminal confinement, to run
concurrently.
McFadden now appeals.
Discussion and Decision
[7] McFadden challenges the sufficiency of the evidence underlying his conviction
for Class B felony criminal confinement. He also argues that his fourteen-year
sentence for criminal confinement is inappropriate.
[8] When we review the sufficiency of the evidence, we do not reweigh evidence or
assess witness credibility. Cunningham v. State, 870 N.E.2d 552, 553 (Ind. Ct.
App. 2007) (citations omitted). We consider only the probative evidence and
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reasonable inferences that support the trier of fact’s conclusion that the
defendant is guilty beyond a reasonable doubt. Id. If there is evidence of
probative value from which a rational trier of fact could infer guilt beyond a
reasonable doubt, we will affirm the conviction. Id.
[9] At the time McFadden committed the underlying offenses, Indiana’s criminal-
confinement statute provided, in relevant part, that:
(a) A person who 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;
commits criminal confinement. Except as provided in subsection (b),
the offense of criminal confinement is a Class D felony.
(b) The offense of criminal confinement defined in subsection (a) is:
* * * * *
(2) a Class B felony if it:
* * * * *
(B) results in serious bodily injury to a person other than the confining
or removing person . . . .
Ind. Code Ann. § 35-42-3-3 (West 2012). The statute contemplates two types of
criminal confinement: confinement by non-consensual restraint and
confinement by forcible removal. See State v. Greene, 16 N.E.3d 416, 419-20
(Ind. 2014). McFadden was charged with and convicted of confinement by
forcible removal resulting in serious bodily injury. See Appellant’s App. p. 82.
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[10] McFadden’s sufficiency argument is two-fold. First, he argues that he did not
forcibly remove Taulbee from one place to another. Second, he argues that
Taulbee did not suffer serious bodily injury.
[11] Our Supreme Court addressed what constitutes removal “from one place to
another” under Section 35-42-3-3 in Brown v. State, 868 N.E.2d 464 (Ind. 2007).
The word “remove” as used in the statute means “that it is unlawful to cause
another person to move from a place or location for specified improper
reasons.” Brown, 868 N.E.2d at 468. The Court has also rejected the argument
that moving a victim only a few feet is insufficient to sustain a conviction for
criminal confinement, recognizing that the statute does not provide exceptions
that depend on how far a person is moved. Cornelius v. State, 508 N.E.2d 548,
549 (Ind. 1987). Thus, the term “remove” is not defined by the amount of
distance the victim is moved or whether the victim is moved to a “distinct
area.” See id. Yet the offense of confinement requires proof of a “substantial
interference” with a person’s liberty without the person’s consent, and “our
courts of appeal have 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, albeit, rape, theft, escape or battery.” Cunningham, 870
N.E.2d at 553-54 (citing McDonald v. State, 511 N.E.2d 1066, 1068 (Ind.
1987); Stover v. State, 621 N.E.2d 664, 668 (Ind. Ct. App. 1993); Sammons v.
State, 397 N.E.2d 289, 294 (Ind. Ct. App. 1979)).
[12] Mindful of these principles, we conclude that the evidence is insufficient to
support McFadden’s conviction for Class B felony criminal confinement. Our
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review of the record reveals no independent evidence beyond McFadden’s
battery of Taulbee—which was established by evidence that McFadden pushed,
hit, and kicked Taulbee and pulled his hair—that would support a conviction
for criminal confinement. Not only is there no direct evidence of confinement,
Taulbee never testified that he felt confined. And the mere fact that Taulbee
was injured during the battery does not mean that he was confined. See id. at
554 (“An inference of confinement does not arise from evidence of injury to the
victim.”). We therefore reverse and remand to the trial court with instructions
to vacate McFadden’s conviction for Class B felony criminal confinement.
[13] Because McFadden’s conviction for Class B felony criminal confinement will
be vacated, the double-jeopardy concern that led the court to reduce
McFadden’s conviction for Class C felony battery resulting in serious bodily
injury to a Class B misdemeanor no longer exists, and we order the trial court
to reinstate McFadden’s conviction for Class C felony battery resulting in
serious bodily injury. See Johnson v. State, 925 N.E.2d 793, 795 (Ind. Ct. App.
2010) (“[W]e have the authority to reinstate one of the other two vacated
counts on which the trial court found Johnson guilty if the evidence is sufficient
to support it.”) (citing Taflinger v. State, 698 N.E.2d 325, 328 (Ind. Ct. App.
1998)), trans. denied.
[14] Because we order this conviction reinstated, we address McFadden’s claim—
although raised only in the criminal-confinement context —that Taulbee did
not suffer serious bodily injury.
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[15] Serious bodily injury includes bodily injury that causes extreme pain. See Ind.
Code § 35-31.5-2-292; see also Erkins v. State, 13 N.E.3d 400, 407 (Ind. 2014).
Here, the State alleged that Taulbee’s injuries caused him extreme pain, see
Appellant’s App. p. 82, and the evidence is sufficient to support this allegation.
The evidence shows that during the battery, Taulbee fell to the ground and hit
his head on the pavement. He suffered a fractured nose, subdural hematoma—
also known as bleeding in the brain—an abrasion to the back of his head, and a
contusion near his left eye. Taulbee was hospitalized for four days, his nose
required surgery, and his injuries compromised his vision in his left eye for a
period of time. At trial, Taulbee testified that the pain he suffered as a result of
the battery was greater than a past accident in which he lost his thumb in a
shear press. The jury could reasonably conclude from this evidence that
Taulbee suffered extreme pain.
[16] In summary, we remand to the trial court with instructions to vacate
McFadden’s conviction for Class B felony criminal confinement, reinstate his
conviction for Class C felony battery resulting in serious bodily injury, and
sentence McFadden accordingly.
Reversed and remanded with instructions.
Baker, J., and Riley, J., concur.
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