MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 06 2015, 8:30 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
Craig Persinger Gregory F. Zoeller
Marion, Indiana Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William M. Cox, October 6, 2015
Appellant-Defendant, Court of Appeals Case No.
27A04-1412-CR-579
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Dana J.
Appellee-Plaintiff. Kenworthy, Judge
Trial Court Cause No.
27D02-1306-FB-50
Kirsch, Judge.
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[1] William M. Cox (“Cox”) was found guilty by a jury of criminal confinement 1 as
a Class B felony, battery2 as a Class C felony, one count of strangulation3 as a
Class D felony, and domestic battery4 as a Class A misdemeanor.5 Cox
appeals, raising the following restated issues for our review:
I. Whether sufficient evidence supported Cox’s conviction
for criminal confinement as a Class B felony. Specifically,
was there evidence to prove beyond a reasonable doubt
that Cox substantially interfered with the victim’s liberty;
and
II. Whether Cox’s convictions for criminal confinement as a
Class B felony, battery as a Class C felony, and
strangulation as a Class D felony violated the actual
evidence test under Indiana’s Double Jeopardy Clause.
[2] We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[3] In May of 2013, Cox and Terri Denton (“Denton”) were in a relationship and
lived together in a home owned by Denton in Upland, Indiana. On May 31,
1
See Ind. Code § 35-42-3-3(b)(2).
2
See Ind. Code § 35-42-2-1.
3
See Ind. Code § 35-42-2-9.
4
See Ind. Code § 35-42-2-1.3.
5
We note that, effective July 1, 2014, a new version of these criminal statutes was enacted. Because Cox
committed his crimes prior to July 1, 2014, we will apply the statutes in effect at the time he committed his
crimes.
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2013, Cox and Denton got into an argument, prompting Denton to leave for
work early to get away from Cox. After Denton left her home, Cox called her
phone repeatedly and followed Denton to her place of employment, where they
had another argument prior to the start of Denton’s shift.
[4] When Denton completed her shift later that evening at 11:00 p.m., she saw Cox
pull into the parking lot. Cox appeared intoxicated, but Denton asked him to
follow her home to continue to discuss their problems. Upon arriving home,
Denton went to the master bathroom to use the restroom. Cox followed her
into the restroom, announced that “I am going to teach you,” Tr. at 185.,
grabbed Denton’s throat, and forced her into the window behind the toilet.
Cox pushed Denton into the window with such force that the window broke,
leaving Denton with cuts and bruises across her back and down her arm.
Denton screamed, causing Cox to put one hand around her throat and his other
hand to cover Denton’s nose and mouth. Denton was unable to breath at this
time.
[5] Cox proceeded to throw Denton onto the bathroom floor, straddle her, and
place both hands around Denton’s throat as he yelled at her. Denton continued
to scream and fight back, prompting Cox to cover her mouth and nose a second
time while he tried to pin Denton’s arms down with his legs. Denton was
unable to breath and eventually lost consciousness.
[6] When Denton regained consciousness, she realized she had been moved from
the master bathroom floor to her bedroom floor near the foot of the bed.
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Denton tried to stand up, but was stopped when Cox placed his hands over her
mouth and nose, inhibiting her ability to breathe a third time that evening. Cox
told Denton that he would remove his hands if she stopped trying to scream.
As he began to remove his hands, Denton tried to break a window to escape.
Cox was able to stop Denton before she could break the window or escape and
pinned her to the bed. He proceeded to wrap his hands around Denton’s throat
and cover her mouth and nose for a fourth time.
[7] Denton managed to break free from Cox’s hold and attempted to run through
the kitchen to the front door, but fell along the way scraping her legs in the
process. Consequently, Cox was able to catch Denton and pin her to a
reclining chair near the front door. Cox then placed his hands around Denton’s
throat and over her mouth and nose for the fifth time that evening. When
Denton tried to fight back, Cox struck her head with his fists multiple times and
split her lip open.
[8] Denton was again able to free herself from Cox. This time, she successfully ran
out of the house and into her car. Cox followed Denton and jumped into the
vehicle as she tried to back out of the driveway. Cox stopped the vehicle and
turned it off before pinning Denton between the two front seats; he then
wrapped his hands around her neck and covered her mouth and nose a sixth
time. Fighting back, Denton was able to flee the vehicle and conceal herself in
a patch of tall grass. Denton remained hidden for some time after she watched
Cox return inside her home with the car keys.
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[9] When Denton was sure that Cox was asleep, she retrieved her car keys from the
house. Unsure of where else to go, Denton decided to sleep in her car in the
driveway. She went back inside her home the next morning after Cox was
gone. Looking in the bathroom mirror, she was able to see her many injuries
and documented them by taking pictures with her cell phone. In addition to
having been rendered unconscious the previous evening, Denton suffered from
a knot on her head, cuts to her left arm, bruises in the form of fingerprints on
her right arm, and a split lip. Denton also had scratches and bruising in the
form of a handprint on her neck, bruising to the side of her face and jaw, and
scratches and bruising on her knees. Later that day, on June 1, 2013, Denton
went to work where her daughter and co-workers observed her injuries. Two
days later, on June 3, 2013, Denton went to the hospital and reported the
incident.
[10] On June 17, 2013, the State charged Cox with criminal confinement as a Class
B felony, battery as a Class C felony, two counts of strangulation as Class D
felonies, and domestic battery as a Class A misdemeanor. Cox proceeded to a
trial by jury that began on October 28, 2014. On October 29, 2014, the jury
found Cox guilty of criminal confinement as a Class B felony, battery as a Class
C felony, one count of strangulation as a Class D felony (by applying pressure
to the throat or neck), and domestic battery as a Class A misdemeanor; Cox
was found not guilty of the second count of strangulation as a Class D felony
(obstructing nose or mouth).
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[11] On December 1, 2014, the trial court sentenced Cox to twenty years for Class B
felony confinement; eight years for Class C felony battery; three years for Class
D strangulation; and one year for Class A misdemeanor domestic battery. The
confinement and Class C felony battery sentences were to be served
concurrently but consecutive to the remaining sentences for an aggregate term
of twenty-four years executed. Cox now appeals.
Discussion and Decision
I. Sufficiency of Evidence
[12] When we review the sufficiency of evidence to support a conviction, we do not
reweigh the evidence or assess the credibility of the witnesses. Cunningham v.
State, 870 N.E.2d 552, 553 (Ind. Ct. App. 2007). “We consider only the
evidence most favorable to the verdict and the reasonable inferences that can be
drawn from this evidence. We will not disturb the jury’s verdict if there is
substantial evidence of probative value to support it.” Fuentes v. State, 10
N.E.3d 68, 75 (Ind. Ct. App. 2014). As the reviewing court, we respect “the
jury’s exclusive province to weigh conflicting evidence.” McHenry v. State, 820
N.E.2d 124, 126 (Ind. 2005).
[13] Cox contends that there was insufficient evidence to support the jury’s finding
that he confined Denton. Specifically, Cox challenges the sufficiency of the
evidence to prove that he substantially interfered with Denton’s liberty. The
jury was instructed that in order to convict Cox of criminal confinement, the
State had to prove that he (a) knowingly or intentionally, (b) confined Denton
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without her consent, and (c) the confinement resulted in serious bodily injury to
Denton. Final Instruction #5, Ex. Vol. at 104. The jury was further instructed to
use the following definition: “The term ‘confine’ is defined by law as meaning
to substantially interfere with the liberty of a person.” Final Instruction #16, Ex.
Vol. at 109; see Ind. Code § 35-42-3-1. Cox admits Denton “may have been
momentarily detained,” but argues that her ability to escape several times and
decision to sleep in her car outside her house when she was free to leave
demonstrates that her liberty was not substantially interfered with by Cox.
Appellant’s Br. at 8. We disagree.
[14] Here, there was sufficient evidence to find that Cox, beyond the detainment
that occurred when Denton was strangled, substantially interfered with her
liberty on several occasions. Cox concedes that during the night in question, he
“pinned Denton to the bed,” “grabbed her and forced her into a reclining chair”
as Denton headed to the door, and “straddled her between the car seats” after
he stopped her car. Id.at 5. “The fact that the time involved was brief is not the
determinative factor of ‘substantial.’ While time may be a factor, it is the type
or nature of interference that is most significant.” Sammons v. State, 397 N.E.2d
289, 294 (Ind. Ct. App. 1979). Based on Denton’s testimony and Cox’s own
admissions in his brief, Denton tried to flee from Cox multiple times before she
was successful in escaping. Therefore, we conclude that there was sufficient
evidence for a reasonable trier of fact to find that Cox confined and
substantially interfered with Denton’s liberty.
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II. Double Jeopardy
[15] Article 1, Section 14 of the Indiana Constitution states that “No person shall be
put in jeopardy twice for the same offense.” Our Supreme Court has held that
“Indiana’s Double Jeopardy Clause was intended to prevent the State from
being able to proceed against a person twice for the same criminal
transgression.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). To
determine whether multiple convictions are permissible, we must use a two-part
test which considers the statutory elements and the actual evidence. Id. Cox
contends that his convictions of criminal confinement as a Class B felony,
battery as a Class C felony, and strangulation as a Class D felony violated the
actual evidence test. His double jeopardy claim can be broken down into two
separate parts: 1) that his criminal confinement and battery charges were
improperly enhanced by the same serious bodily injury; and 2) that the same
facts and evidence were used to support his convictions for criminal
confinement and strangulation. We address each in turn.
[16] When such a claim is presented to a reviewing court, “the actual evidence
presented at trial is examined to determine whether each challenged offense
was established by separate and distinct facts.” Id. at 53. Moreover, the court
may consider the charging information, jury instructions, and arguments of
counsel when making its determination. Lee v. State, 892 N.E.2d 1231, 1234
(Ind. 2008). “Multiple convictions do not violate Indiana’s Double Jeopardy
Clause if they logically could have been based on the same facts, but in light of
the evidence, the instructions, the charges, and the argument of counsel, there is
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no reasonable possibility that the jury actually used exactly the same set of facts
to establish both convictions.” Id. at 1232.
[17] At issue in the actual evidence analysis of the criminal confinement and battery
convictions is whether there is a reasonable possibility that the evidence used by
the fact-finder to establish the serious bodily injury element for the criminal
confinement conviction may also have been used to establish the serious bodily
injury element for the battery conviction. Hines v. State, 30 N.E.3d 1216, 1222
(Ind. 2015). Specifically, we must consider whether there is a reasonable
possibility that the jury used Denton’s loss of consciousness as the serious
bodily injury for each of the above mentioned convictions.
[18] “Although there was evidence presented at trial that could have supported” a
finding that serious bodily injury occurred during both the confinement offense
and the battery offense, “the inquiry does not end there.” Id. “Indiana’s
Double Jeopardy Clause requires charges to be prosecuted ‘in a manner that
insures that multiple guilty verdicts are not based on the same evidentiary
facts.’” Lee, 892 N.E.2d at 1235 (quoting Richardson, 717 N.E.2d at 53 n.46).
“If there is a reasonable possibility that the jury mixed the evidence from”
Denton’s loss of consciousness during the criminal confinement offense to
establish serious bodily injury for the battery offense, both enhanced
convictions cannot stand because the facts establishing serious bodily injury for
criminal confinement would also establish serious bodily injury for battery.
Hines, 30 N.E.3d at 1222. “‘Reasonable possibility’ turns on a practical
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assessment of whether the jury may have latched on to exactly the same facts for
both convictions.” Lee, 892 N.E.2d at 1236 (emphasis added).
[19] In this case, the State included both unconsciousness and extreme pain when it
charged Cox with criminal confinement and battery. Additionally, the final
jury instructions listed unconsciousness and extreme pain as the serious bodily
injury for both the criminal confinement offense and the battery offense without
clarifying to the jury that the same injury could not be used for each of the two
offenses. The instructions left open the reasonable possibility that the jury
could use the same evidence to establish serious bodily injury for both criminal
confinement and battery. Hines, 30 N.E.3d at 1223.
[20] During closing argument, the State clearly tied unconsciousness to the criminal
confinement offense:
We also talked about in jury selection how unconsciousness within
itself under the law qualifies as serious bodily injury, so if you
believe Terri that she says ‘And then I blacked out, and then I
woke up in front of the bed.’ She showed you using the exhibits
where she woke up then serious bodily injury has been satisfied.
Tr. at 454. The State proceeded to focus on the facts surrounding Denton’s loss
of consciousness when it discussed the battery resulting in serious bodily injury:
He would keep grabbing her and if she screamed he would put his
hand over her face to stifle her screaming. That’s touching
someone in a rude, insolent or angry manner, and it resulted in
serious bodily injury. The passing out on the floor or even extreme
pain under, under the definition. Terri got up there and told you
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she felt like she was going to explode. She’s gasping for air. She
couldn’t get air and was going to explode.
Id. at 455. It is possible that the jury followed the State’s argument and tied
the unconsciousness to the criminal confinement offense and the extreme pain
to the battery offense; however, without specifying for the jury what evidence
supported what charge and failing to instruct them that the same evidence could
not be used twice, it is also reasonably possible that the jury established the
serious bodily injury element for both the criminal confinement conviction and
the battery conviction with the same piece of evidence, namely the loss of
consciousness. The State failed to draw a line where the serious bodily injury
from the confinement ended and the serious bodily injury from the battery
began. Confusion was added by the fact that the charging information and jury
instructions listed both loss of consciousness and extreme pain as the serious
bodily injuries for the battery and criminal confinement charges.
[21] Based on the charging information, the jury instructions, and the arguments of
counsel, we find a reasonable possibility that the evidence of the loss of
consciousness was used by the jury to establish the serious bodily injury
element of battery and criminal confinement. Consequently, under the actual
evidence test, Cox was twice punished for the same injury in violation of Article
1, Section 14 of the Indiana Constitution. Moreover, the other injuries Cox
inflicted upon Denton were used to support the domestic battery conviction.
Accordingly, we remand to the trial court with instructions to vacate the Class
C felony battery conviction and sentence.
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[22] Next, Cox contends that the same evidence was used to convict him of
strangulation and confinement. We disagree. The conflict between Denton
and Cox began in the master bathroom when he shoved her into the window.
Denton testified that Cox then threw her onto the bathroom floor, straddled
her, and tried to restrain her arms with his legs. This evidence supports the
finding that Cox confined Denton. However, Cox then took the additional
action of placing his hands around her neck and covering her nose and mouth.
This resulted in Denton losing consciousness. Combined, this evidence
supported Cox’s conviction for Class B felony criminal confinement. In
addition to the incident in the master bathroom, Denton testified that Cox
placed his hands around her throat on multiple occasions that night which
impeded her circulation and ability to breath. This separate evidence supports
Cox’s conviction of strangulation as a Class D felony.
[23] The actual evidence used to convict Cox of criminal confinement was different
from the evidence required to convict him of strangulation. Cox’s convictions
for criminal confinement and strangulation did not violate the prohibition
against double jeopardy. Accordingly, both convictions were proper and
vacating the battery conviction will not require that Cox be resentenced as the
battery sentence was ordered to run concurrent with the criminal confinement
sentence.
[24] Affirmed in part, reversed in part, and remanded with instructions.
[25] Najam, J., and Barnes, J., concur.
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