FILED
Dec 10 2018, 10:09 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Curtis T. Hill, Jr.
Darren Bedwell Attorney General of Indiana
Marion County Public Defender – Matthew B. MacKenzie
Appellate Division Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony T. Mickens, December 10, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-698
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Peggy R. Hart,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
49G05-1704-F1-13417
Mathias, Judge.
[1] Following a bench trial in Marion Superior Court, Anthony T. Mickens
(“Mickens”) was convicted of Level 3 felony criminal confinement resulting in
serious bodily injury, Level 5 battery resulting in serious bodily injury, and
Class A misdemeanor theft and sentenced to an aggregate term of fifteen years
of incarceration. Mickens appeals and argues that the State failed to present
Court of Appeals of Indiana | Opinion 18A-CR-698 | December 10, 2018 Page 1 of 13
evidence sufficient to support his conviction for Level 3 felony criminal
confinement.
[2] We affirm.
Facts and Procedural History
[3] The victim in this case, A.S., began dating Mickens in late 2016, and Mickens
eventually moved in to A.S.’s apartment. A.S.’s roommate did not approve of
how Mickens treated A.S. and gave her an ultimatum—either Mickens would
have to leave or A.S. could move out with Mickens. A.S. chose the latter option
and moved with Mickens to the home of E.S., the mother of two of Mickens’s
children.
[4] On February 4, 2017, one of Mickens’s friends, George, came over with
another man.1 Soon thereafter, George and the other man confronted Mickens
and cornered him near a door. A.S. told the two men not to harm Mickens, and
approached George, who struck A.S. in the face, causing her to fall to the
ground and injure her leg. A.S. asked Mickens to take her to the hospital, but he
refused. The next day, A.S.’s leg had swollen to twice its original size, so she
propped it up with a pillow and lay on the couch. Mickens told A.S. that, if she
wanted to go to the hospital, she would have to find someone to take her, as he
did not want any emergency vehicles coming to the house.
1
A.S. testified that this incident occurred on the Saturday before the Super Bowl in 2017. We take judicial
notice of the fact that Super Bowl LI took place on Sunday, February 5, 2017. See
http://www.espn.com/nfl/game/_/gameId/400927752 (last visited Nov. 20, 2018).
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[5] A.S. went to the hospital the following day, February 6, 2017. Tests revealed
that A.S.’s leg had been broken in two separate places. When told by A.S. that
the injury occurred during “events that happened at home,” Tr. Vol. 2., p. 193,
the treating physician informed her that the emergency room was a safe place to
discuss domestic violence, but A.S. did not provide any further detail. The
physician placed a cast on A.S.’s leg and prescribed Norco, a narcotic analgesic.
[6] Mickens went to the pharmacy to pick up A.S.’s prescriptions, and A.S. stayed
at home with the children. When Mickens returned home, he argued with his
daughter, and A.S. made dinner. When she gave Mickens a plate of food, he
threw the plate at her face and called her a “bitch.” Id. at 235. This cut A.S.’s
mouth. Mickens took A.S.’s pain medication, refused to give it to her, and
stated that he was going to sell it. When E.S. came to the house, she could tell
that A.S. had been crying and told Mickens to stop being mean to A.S. This
request went unheeded.
[7] At approximately 11:00 p.m. that night, Mickens attacked A.S. He struck her
approximately eighteen times as he screamed at her. Mickens’s daughter sent
E.S. a message asking her to call the police because her father was attacking
A.S. Mickens saw this and took his daughter’s phone away and hid it. Mickens
told A.S. to leave, but A.S. responded that she was the one watching the
children. Furthermore, E.S. had told A.S. that the house belonged to her (E.S.)
and that Mickens could not make A.S. leave. Mickens and his teenaged son
began to throw A.S.’s belongings outside. Mickens even threw A.S.’s crutches
outside and grabbed A.S. by her hair and dragged her outside down three stairs
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onto the front lawn. Mickens then poured a can of beer on A.S. and stomped
on her already-broken leg over a dozen times. A neighbor saw A.S. and
attempted to help her but did not call the police for fear of becoming Mickens’s
next target. Mickens dragged A.S. back inside, where he had sex with her. A.S.
begged Mickens to call 911, but he refused.
[8] The following morning, A.S. crawled to the bathroom and realized that her leg
was so broken that a bone was almost protruding from her skin. Mickens agreed
that A.S. would have to go to the hospital but again refused to allow A.S. to call
911. When Mickens left the home later than morning, A.S. found the cell
phone that Mickens had hidden from his daughter and called for an ambulance.
[9] The paramedic and EMT who arrived with the ambulance saw A.S.’s
belongings still strewn on the front yard. When they reached A.S., her leg was
so broken it was “floppy,” and her foot was pointing in the wrong direction. Id.
at 122. They also observed that a bone had almost broken through her skin.
A.S. told the first responders that Mickens had stomped on her leg. The
ambulance took A.S. to the hospital, where she was treated by the same
physician who had seen her before. She noted that A.S.’s right ankle was
“grossly deformed” and that A.S. was in “excruciating pain.” Id. at 179. By this
time, a splintered piece of bone had punctured through A.S.’s skin, and her
ankle mortise, where the ankle bones come together, was “totally destroyed.”
Id. at 180. A.S. had to be anesthetized so that the physicians could perform a
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“joint reduction.”2 Id. at 182–83. Following this, A.S. underwent two surgeries
to repair the bones in her ankle and remained in the hospital for two weeks.
[10] On April 12, 2017, the State charged Mickens with two counts of Level 1 felony
rape, one count of Level 3 criminal confinement resulting in serious bodily
injury, one count of Level 5 battery resulting in serious bodily injury, two
counts of Class A misdemeanor battery resulting in bodily injury, one count of
Class A misdemeanor theft, one count of Class A misdemeanor interfering with
the reporting of a crime, and one count of Class A misdemeanor domestic
battery. A bench trial was held on January 25, 2018, and, on February 7, 2018,
the trial court entered an order finding Mickens guilty as charged, save the two
counts of rape. The trial court later entered an amended order finding Mickens
not guilty of interfering with the reporting of a crime.
[11] At a sentencing hearing held on March 6, 2018, the court entered judgments of
conviction for Level 3 felony criminal confinement, Class A misdemeanor
battery resulting in bodily injury, and Class A misdemeanor theft and “merged”
the remaining guilty findings, i.e., did not enter judgment of conviction on these
findings. The court imposed a sentence of fifteen years on the criminal
confinement conviction, and concurrent one-year sentences on the remaining
two convictions. Mickens now appeals.
2
Joint reduction is performed “when you got a broken bone and the bone is no longer in alignment with the
other portion of the bone. So generally you sedate the patient and you just pull it back into place, so that the
bone is actually aligned.” Id. at 183.
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Standard of Review
[12] On appeal, Mickens argues that the State presented insufficient evidence to
support his conviction for criminal confinement resulting in serious bodily
injury.3 Our standard of review on claims of insufficient evidence is well settled:
When reviewing a claim that the evidence is insufficient 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. We
consider only the probative evidence supporting the [judgment]
and any reasonable inferences which may be drawn from this
evidence. 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.
Harrison v. State, 32 N.E.3d 240, 247 (Ind. Ct. App. 2015), trans. denied (citing
McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)).
Discussion and Decision
[13] A person who “knowingly or intentionally confines another person without the
other person’s consent” commits the crime of criminal confinement. Ind. Code
§ 35-42-3-3(a). The word “confine” is defined to mean to “substantially interfere
with the liberty of a person.” Ind. Code § 35-42-3-1. Criminal confinement is a
Level 3 felony if “it results in serious bodily injury to a person other than the
confining person.” Id. at § 3(b)(2)(B). “Serious bodily injury” is defined by
3
Mickens does not challenge the sufficiency of the evidence to support his convictions for battery or theft.
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statute to mean “bodily injury that creates a substantial risk of death or that
causes: . . . (3) extreme pain; [or] (4) permanent or protracted loss or
impairment of the function of a bodily member or organ[.]” Ind. Code § 35-
31.5-2-292.
[14] Here, in its charging information, the State tracked this statutory language and
alleged that Mickens “did knowingly or intentionally confine [A.S.] without the
consent of [A.S.], said act resulting in serious bodily injury to [A.S.], to wit:
extreme pain and/or unconsciousness.” Appellant’s Confidential App. p. 47.
[15] Mickens argues the evidence of injury to A.S. does not give rise to an inference
of confinement. Mickens acknowledges that there was evidence that he
committed a battery but argues that A.S.’s injuries were not the result of any
confinement, writing “Mickens did not cause [A.S.]’s second set of fractures by
ejecting her from the house and dragging her into the front yard, but by the
battery he committed once she was there.” Appellant’s Br. at 16.
[16] Mickens appears to argue that there was insufficient evidence to show that he
confined A.S. and that there was insufficient evidence to show that any
confinement resulted in serious bodily injury to A.S. To the extent that Mickens
argues that there was no evidence that he confined A.S., he is mistaken.
[17] Mickens cites McFadden v. State, 25 N.E.3d 1271 (Ind. Ct. App. 2015), in
support of his argument. In that case, the victim was standing outside an
apartment complex talking with a resident when the defendant’s stepfather
approached him and hit him in the head. Id. at 1272. The stepfather also pulled
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the victim’s hair and struck him in the face, at which point the victim fell to the
ground. Id. The defendant and another man then approached and began to
push, hit, and kick the victim. Id. The defendant also grabbed the victim’s hair.
Id. at 1272–73. The defendant was convicted of Class B felony criminal
confinement and Class B felony battery.
[18] McFadden argued on appeal that the evidence was insufficient to support his
conviction because, he claimed, there was no evidence that he forcibly removed
the defendant from one place to another. At the time McFadden committed his
offenses, the confinement statute provided that the offense could be committed
by either confining a person against his or her will, or by “remov[ing] another
person, by fraud, enticement, force, or threat of force, from one (1) place to
another[.]” Ind. Code § 35-42-3-3(a)(2) (2012). The McFadden court noted that
Indiana courts had held that “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.” 25 N.E.3d at 1274 (citations
omitted). The McFadden court then held:
Our review of the record reveals no independent evidence
beyond McFadden’s battery of [the victim]—which was
established by evidence that McFadden pushed, hit, and kicked
[the victim] and pulled his hair—that would support a conviction
for criminal confinement. Not only is there no direct evidence of
confinement, [the victim] never testified that he felt confined.
And the mere fact that [the victim] was injured during the battery
does not mean that he was confined.
Id. at 1275.
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[19] Mickens argues that the same is true here, i.e., that the fact that there was
evidence that he stomped on A.S.’s leg does not support a finding of
confinement. We do not think that McFadden is controlling here.
[20] First, the criminal confinement statute has been amended to remove the
“removal” subsection, and Mickens was charged with “confining” A.S. without
her consent, not removing her from one place to another. The holding in
McFadden is distinguishable for this reason alone. More importantly, however,
here there was evidence other than the battery that Mickens confined A.S.
Specifically, there was evidence that Mickens threw a plate at A.S. and told her
to leave the house. She refused because she was watching the children and
because E.S. had informed her that Mickens could not make her leave. Mickens
responded by throwing A.S.’s belongings on the front lawn, grabbing her by the
hair, and dragging her outside onto the lawn. After pouring a beer on her and
stomping on her already-broken leg, Mickens then grabbed A.S. and dragged
her back to the front door. From this evidence, and not merely the act of
stomping on A.S.’s leg, the trial court, acting as the trier of fact, could
reasonably conclude that Mickens substantially interfered with A.S.’s liberty
without her consent.4
[21] To the extent that Mickens argues that the evidence was insufficient to show
that his confinement of A.S. resulted in serious bodily injury to A.S., we again
4
The fact that the State argued at trial that the confinement consisted of Mickens’s act of stomping on A.S.’s
leg did not limit the trial court’s ability to find Mickens guilty for any reason supported by the evidence.
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disagree. In support of this argument, Mickens cites State v. Greene, 16 N.E.3d
416 (Ind. 2014), an appeal from the grant of post-conviction relief.
[22] In Greene, the petitioner argued that he had received ineffective assistance of
counsel because his trial and appellate counsel had failed to cite what he
believed to be controlling precedent that would establish that the evidence was
insufficient as a matter of law to support his conviction for criminal
confinement. Greene had been convicted of inter alia Class B felony criminal
confinement for a prolonged incident spanning two days during which he
terrorized his girlfriend and held her captive in their shared apartment. While in
their bedroom, Greene strangled his victim until she lost consciousness, and
when she regained consciousness, she was on a couch in their living room.
After his convictions were affirmed on direct appeal, Greene successfully
sought post-conviction relief, and the State appealed.
[23] On transfer to our supreme court, Greene argued that he was entitled to relief
under Long v. State, 743 N.E.2d 253 (Ind. 2001). The Greene court summarized
the holding in Long as follows:
Long insisted that although there was evidence that his victim []
suffered fractured facial bones, there was no evidence that these
injuries resulted from her being forcefully removed from one
place to another. Without such evidence, he reasoned, there was
insufficient evidence to establish the serious bodily injury
enhancement. The State countered that “the jury could have
inferred that [the victim]’s injuries to her nose and eye socket
were caused during her movement from one place to another”
but did not identify any evidence as proof. On review, we found
that “the evidence was insufficient to establish that the conduct
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constituting the charged offense of criminal confinement resulted in
serious bodily injury.”
Crucially, “the charged offense” was that (1) Long (2) knowingly
or intentionally (3) removed the victim from one place to another
(4) by force. Ind. Code § 35-42-3-3. At issue were elements three
and four, and without identifying the circumstances under which
[the victim] sustained facial fractures, the State could not
establish beyond a reasonable doubt that [the victim]’s serious
bodily injury occurred during her forcible removal from one place
to another. This was likely attributable to the facts of the case:
Long and two others confined [the victim] for possibly longer
than one week in an attic, and in the course of her captivity and
murder, inflicted numerous injuries upon her. Under these
circumstances, the State was likely unable to isolate precisely
when [the victim] sustained her fractures. Thus, the jury was
unable to find that serious bodily injury resulted from her forcible
removal.
16 N.E.3d at 420 (citing Long, 743 N.E.2d at 259–60, 262) (emphasis added in
Greene).
[24] The Greene court found Long to be factually distinguishable because the victim
in Greene’s trial testified that Greene strangled her until she was unconscious.
Thus, “the jury could have reasonably inferred that Greene’s act of force,
strangulation, both facilitated his removal of [the victim] from their bedroom to
their living room and resulted in serious bodily injury to her.” Id. The Greene
court held that, unlike in Long, the evidence here supported the State’s
contention that the defendant’s knowing or intentional removal of the victim
from one place to another by force resulted in serious bodily injury to the
victim. Id. at 420–21.
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[25] The Greene court further rejected Greene’s claim that Long held that the State
was required to prove that the victim’s serious bodily injury was caused during
the victim’s movement from one place to another.5 Instead, the court held that,
although there must be a “temporal link” between the inducement and the
removal “so as to constitute one incident,” the court did not interpret the
confinement statute so narrowly as to “require the serious bodily injury to be
suffered by the victim during the actual act of removal from one place to
another.” Id. at 421 (emphasis added). After reviewing Long and a similar case,
the Greene court ultimately held that “serious bodily injury to the victim must be
sustained during the charged offense of criminal confinement . . . . Thus, the
victim must suffer serious bodily injury as the result of the act of forcible
removal, whether or not the act of force occurs simultaneously with the act of
removal.” Id. at 423.
[26] In the present case, the evidence presented at trial shows that Mickens dragged
A.S. by her hair to the front yard, thereby confining her, repeatedly stomped on
her already-broken leg, and then dragged her back to the front door, again
confining her. Thus, there was, in the words of the Greene court, a “temporal
link” between the injury and the confinement such that they constituted one
incident. Indeed, here, the order of events could be viewed as confinement,
injury, and additional confinement. Thus, the injury did occur during the
incident of confinement, and the evidence is sufficient to support Mickens’s
5
As in McFadden, Greene’s acts of confinement took place when the confinement statute contained the
“removal” subsection.
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conviction for Level 3 felony criminal confinement resulting in serious bodily
injury.
Conclusion
[27] We hold that the evidence was sufficient to support Mickens’s conviction for
confinement resulting in serious bodily injury. First, Mickens grabbed A.S. by
the hair and dragged her onto the front lawn, where he poured beer on her and
stomped on her broken leg, and eventually dragged her back to the front door.
Thus, Mickens substantially interfered with A.S.’s liberty without her consent.
Furthermore, the evidence showed that during this incident of confinement,
Mickens seriously injured A.S.’s already-broken leg by repeatedly stomping on
it. Thus, the State adequately proved that the criminal confinement resulted in
serious bodily injury to A.S. We therefore affirm the judgment of the trial court.
[28] Affirmed.
Bailey, J., and Bradford, J., concur.
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