MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jun 25 2019, 10:11 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stanley L. Campbell Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Courtney L. Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William E. Boyd, June 25, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-160
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable John F. Surbeck,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D06-1711-F5-332
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-160 | June 25, 2019 Page 1 of 10
Case Summary
[1] William E. Boyd (“Boyd”) was convicted of Criminal Confinement, as a Level
3 felony,1 Battery, as a Level 5 felony,2 and Sexual Battery, as a Level 6 felony.3
On appeal, he challenges the Criminal Confinement conviction. We affirm in
part, reverse in part, and remand with instructions to enter judgment upon the
Level 5 felony Battery as a Class B misdemeanor and resentence Boyd
accordingly.
Issues
[2] We address the following issues:
I. Whether the State presented sufficient evidence that Boyd
committed Criminal Confinement resulting in serious
bodily injury; and
II. Whether the Criminal Confinement enhancement and the
Battery enhancement were based upon the same facts.
Facts and Procedural History
[3] During the evening of November 13, 2017, Sheri Fincher (“Fincher”) visited
the home of her neighbor, Barbara Barnes (“Barnes”). Boyd was also a guest.
1
Ind. Code § 35-42-3-3.
2
I.C. § 35-42-2-1.
3
I.C. § 35-42-4-8.
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He was drinking heavily and became verbally and physically abusive toward
Fincher. Barnes told Boyd to leave, and Fincher also decided to leave despite
Barnes urging her to stay for her own safety. Fincher went back to her
apartment and was playing a game when Boyd knocked at her door. He asked
to wait in the apartment until his ride showed up and Fincher agreed that he
could do so.
[4] Fincher went back to her bedroom to continue playing her game and Boyd
followed. An intoxicated Boyd repeatedly questioned Fincher and demanded
that she listen to him. When Fincher continued to play her game and did not
answer all the questions, Boyd became angry and struck Fincher on the left side
of her face. Fincher was knocked unconscious; when she regained
consciousness, she became aware that she was bleeding from her mouth. At
first, she feared that her teeth had been knocked out.
[5] Boyd told Fincher to get up and clean herself up in the bathroom. Fincher
complied, with Boyd following closely behind her. As Fincher rinsed her
bloody mouth and washed her face, Boyd stood behind her. Fincher returned
to the bedroom, with Boyd following. He then struck her in the head three
more times, took his clothes off, threw Fincher onto the bed, and laid on top of
her. Boyd stated that it was his birthday and he “wanted to be with someone.”
Tr. Vol. I, pg. 39. Fincher responded that she did not want to be with Boyd and
that she was instead prepared to be killed.
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[6] Boyd passed out and fell against the bedroom wall. Seizing her opportunity to
escape, Fincher grabbed her shoes and ran outside. She ran to Barnes’s
apartment and awakened her by pounding on the window. Barnes called 9-1-1.
At around 3:00 a.m., responding police officers found Boyd in Fincher’s
bedroom, nude and apparently passed out. He was transported to a hospital
due to his extreme level of intoxication. Fincher received medical treatment for
her injuries a few days later. She had a ruptured eardrum, a red mark on her
neck, and abrasions. She later testified that she had experienced lingering back
pain and difficulty hearing.
[7] On October 24, 2018, Boyd was brought to trial before a jury on charges of
Criminal Confinement, Battery, Sexual Battery, and Strangulation. He was
acquitted of Strangulation and convicted of the remaining charges. He received
an aggregate sentence of nine years imprisonment (nine years for Criminal
Confinement and concurrent sentences of three years for Battery and one year
for Sexual Battery). He now appeals.
Discussion and Decision
Sufficiency of the Evidence
[8] Our standard of review for sufficiency of the evidence claims is well settled.
We consider only the probative evidence and reasonable inferences supporting
the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not
reweigh the evidence or judge witness credibility. Id. We will affirm the
conviction unless no reasonable fact finder could find the elements of the crime
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proven beyond a reasonable doubt. Id. The evidence is sufficient if an
inference may be reasonably drawn from it to support the verdict. Id. at 147.
[9] Pursuant to Indiana Code Section 35-42-3-3(a), a person who knowingly or
intentionally confines another person without the other person’s consent
commits criminal confinement, a Level 6 felony. There are two types of
criminal confinement, confinement by non-consensual physical restraint and by
forcible removal. State v. Greene, 16 N.E.3d 416, 420 (Ind. 2014). The offense is
a Level 3 felony if it results in serious bodily injury to a person other than the
confining person. I.C. § 35-42-3-3(b)(2)(B). Boyd challenges both the evidence
of confinement and the elevation of the offense.
[10] To “confine” a person means to “substantially interfere with the liberty of a
person.” I.C. § 35-42-3-1. “We have previously 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.” Kelley v. State, 2 N.E.3d 777,
787 (Ind. Ct. App. 2014). Fincher testified that, when she regained
consciousness after the initial blow to her head, Boyd ordered her to go into the
bathroom. He followed and “was standing right behind [her]” and when she
returned to the bedroom, he was “right behind [her]” as well. Tr. Vol. I, pg. 38.
Fincher testified that she could not leave after Boyd entered her bedroom
because “he would not move from in front of me.” Id. at 36. The evidence is
sufficient to permit a reasonable fact finder to conclude that – apart from
striking Fincher in the commission of Battery and holding Fincher down in the
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commission of Sexual Battery – Boyd repeatedly blocked Fincher’s movements,
thereby substantially interfering with her liberty.
[11] The charged offense was elevated to a Level 3 felony because of Fincher’s
serious bodily injury.4 Boyd concedes that Fincher was injured and that a fact
finder could have found that she sustained serious bodily injury. However, he
contends that the State presented no evidence that Fincher was injured as a
result of the confinement. The State responds that Boyd’s act of knocking
Fincher unconscious facilitated her confinement, and thus there was a temporal
link between the injury and confinement such that they constituted one
incident.
[12] The State directs our attention to Greene, 16 N.E.3d at 416. Greene had been
convicted of Class B felony criminal confinement stemming from a two-day
incident in which he held his girlfriend captive. Greene had strangled his
girlfriend, and rendered her unconscious; when she regained consciousness, she
was in another room of the house. Greene was charged with criminal
confinement by removal. On transfer following the denial of post-conviction
relief, Greene argued that his trial counsel had been ineffective for failing to
argue that Greene was entitled to relief under Long v. State, 743 N.E.2d 253
(Ind. 2001).
4
“Serious bodily injury” is “bodily injury that creates a substantial risk of death or that causes serious
permanent disfigurement, unconsciousness, extreme pain, permanent or protracted loss or impairment of the
function of a bodily member or organ, or loss of a fetus.” I.C. § 35-31.5-2-292.
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[13] The Greene Court summarized the holding in Long:
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
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).
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[14] After examining the Long decision, the Greene Court found it factually
distinguishable. Greene’s victim had testified that Greene strangled her to
unconsciousness. As such, “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 Court recognized that there must be a “temporal link” between
inducement and removal “so as to constitute one incident” but did not “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. It 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.
[15] Here, Boyd was charged with confinement by restraint as opposed to
confinement by removal. Nonetheless, we agree with the State that there is a
temporal link here between the force and restraint employed – Boyd gained
control of Fincher by rendering her unconscious and when she regained
consciousness, he directed her movements and impeded her escape. The jury
could reasonably conclude that Boyd’s confinement of Fincher resulted in
serious bodily injury. However, we proceed to determine whether Boyd has
incurred multiple penal consequences for the same serious bodily injury.
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Double Jeopardy – Elevation of Offense
[16] Frequently discussed under the general rubric of Indiana double jeopardy
jurisprudence, we recognize rules of statutory construction and common law
that are in addition to the protections afforded by the Indiana Double Jeopardy
Clause. Zieman v. State, 990 N.E.2d 53, 61 9Ind. Ct. App. 2013). One
prohibition is against “conviction and punishment for an enhancement of a
crime where the enhancement is imposed for the very same behavior or harm as
another crime for which the defendant has been convicted and punished.”
Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002).
[17] Here, the charging information stated the elements of the crimes but did not
include details to indicate which facts supported the individual charges. The
State alleged and demonstrated that Fincher had sustained serious bodily injury
but did not, in closing argument, attempt to attribute a specific injury to a
specific crime. Our review of the evidence discloses the following. Boyd struck
Fincher in the head four times; she suffered a ruptured eardrum and
impairment of her hearing. She experienced lingering back pain (and this
appears from her testimony to be attributed to her being held down with the
force of Boyd’s weight during the commission of Sexual Battery). The
elevation of the Criminal Confinement offense and the elevation of the Battery
offense are based upon evidence that Fincher sustained serious bodily injury
from Boyd striking her on her head. Multiple enhancements based upon the
same facts cannot stand, and we may reduce one of the offenses to obviate
double jeopardy concerns. Caldwell v. State, 43 N.E.3d 258, 269 (Ind. Ct. App.
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2015). As Battery is the offense having lesser penal consequences, we elect to
revise the Battery offense to a Class B misdemeanor. 5 See Thompson v. State, 82
N.E.3d 376, 383 (Ind. Ct.App. 2017) (recognizing that a reviewing court may
remedy a violation by reducing either conviction to a less serious form of the
same offense if doing so will eliminate the violation).
Conclusion
[18] There is sufficient evidence to support Boyd’s conviction of Criminal
Confinement, as a Level 3 felony. However, to obviate double jeopardy
concerns, we reduce the Battery conviction to a Class B misdemeanor.
[19] Affirmed in part, reversed in part, and remanded.
Riley, J., and Pyle, J., concur.
5
Battery, as a Class B misdemeanor, is committed when a person knowingly or intentionally touches another
person in a rude, insolent, or angry manner. I.C. § 35-42-2-1(c)(1).
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William E. Boyd v. State of Indiana (mem. dec.)
Combined Opinion