Quantavious Jones v. State of Indiana

FILED
Oct 29 2020, 9:49 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian A. Karle Curtis T. Hill, Jr.
Ball Eggleston, PC Attorney General of Indiana
Lafayette, Indiana Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Quantavious Jones, October 29, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-202
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Shatrese M.
Appellee-Plaintiff Flowers, Judge
Trial Court Cause No.
49G02-1810-F2-37556

Weissmann, Judge.

Court of Appeals of Indiana | Opinion 20A-CR-202 | October 29, 2020 Page 1 of 23
[1] Quantavious Jones appeals his convictions for two counts of Level 3 Felony

Aggravated Battery Causing Serious Permanent Disfigurement, one count of

Level 5 Felony Kidnapping With Bodily Injury, one count of Level 2 Felony

Kidnapping For Ransom, and one count of Level 2 Felony Criminal

Confinement With Intent to Obtain Ransom.1 He argues that the convictions

were based on improperly admitted evidence and that they violate the

continuous crime doctrine. The State concedes that the criminal confinement

and Level 5 kidnapping convictions must be vacated. We agree, and remand

with instructions to vacate these convictions and resentence Jones accordingly.

In all other respects, we affirm.

Facts
[2] On October 23, 2018, Quantavious Jones asked A.C., with whom he was in a

relationship, if he could have a package delivered to her residence the next day.

She agreed. On October 24, Jones called A.C. to check on the package, but she

said it had not been delivered. He picked her up to investigate. They found the

UPS delivery man, who confirmed that he had delivered the package, but said

that he had not seen A.C.

[3] Jones then called Irving Madden. Jones told Madden that A.C. had lost his

package, and that he and A.C. were coming over to Madden’s house. A.C.

became suspicious on the ride over. She attempted to exit the moving vehicle,

1
Ind. Code § 35-42-2-1.5(1); I.C. § 35-42-3-2(b)(1)(C); I.C. § 35-42-3-2(b)(3)(A); I.C. § 35-42-3-3(b)(3)(A).

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 but Jones grabbed her and kept her in the car. When they arrived at Madden’s

house, A.C. refused to get out of the car. Madden pulled her from the vehicle

and dragged her into his house.

[4] Inside, Madden took A.C. to the basement and Jones handcuffed her to a pole

or a pipe. A.C. escaped the handcuffs and tried to grab a phone, but Jones took

the phone and choked her. He again handcuffed her to the pole. Then he

moved her and handcuffed her to a chair in the basement’s kitchen.

[5] Jones began questioning A.C. about the package. During the questioning,

Madden threw scalding hot water on her from behind. A.C. would later

describe the pain of being burned with hot water as “worse than ten.” Tr. Vol.

II p. 208. A.C. fell onto the floor, and Madden began beating her. Jones pulled

Madden away from A.C., who then went into the bathroom where she was

ordered to remove her clothes. She was alone for a moment before Madden

opened the door and threw more hot water on her naked body. Madden then

made A.C. get in the shower, turned on the hot water, and continued hitting

her.

[6] At some point, the three returned to the bar area. Madden asked if they should

kill A.C., but Jones said they should let her go. Madden found clothes for A.C.

and left to get gas. Jones began calling A.C.’s family and friends, asking about

the package and demanding $3,000 for A.C.’s release.

[7] When Madden returned, the three got in the car together. A.C. asked to be

released on the east side of Indianapolis, where her family lives. Jones drove

Court of Appeals of Indiana | Opinion 20A-CR-202 | October 29, 2020 Page 3 of 23
 east but let A.C. out in an unknown neighborhood. A.C. knocked on the door

of one of the houses and the woman that answered let A.C. use her phone.

[8] A.C.’s family picked her up and took her to the local hospital. There, she spoke

with a nurse and a detective about what happened. She was later transferred to

Eskenazi Hospital. She was put in a shock room, which is an area reserved for

“life-threatening things.” Tr. Vol. III p. 112. She was treated for abrasions on

her face and severe burns on her arms, chest, back, and legs.

[9] Janet Jackson worked with A.C. at Eskenazi as a forensic nurse examiner.

Nurse Jackson was trained in caring for victims of trauma, including how to

collect evidence. She was instructed to ask patients what happened to them “in

order to figure out the appropriate treatment.” Id. at 93. Nurse Jackson

interviewed A.C. several hours after the incident. During this interview, A.C.

was “shaking,” “shivering,” and “grimacing” from the pain. Id. at 95-96. A.C.

was also “scared” that Jones and Madden were “going to come and find her.”

Id. at 97.

[10] Based on the foregoing chain of events, Jones and Madden were both arrested.

On October 29, 2018, the State charged Jones with Level 2 felony robbery

resulting in serious bodily injury, Level 3 felony criminal confinement while

armed with a deadly weapon, three counts of Level 3 felony aggravated battery,

Level 5 felony kidnapping with bodily injury, Level 5 felony battery resulting in

serious bodily injury, and Level 6 felony strangulation. Later, the State added

Court of Appeals of Indiana | Opinion 20A-CR-202 | October 29, 2020 Page 4 of 23
 one count of Level 2 felony kidnapping for ransom and one count of Level 2

felony criminal confinement with intent to obtain ransom.

[11] Jones and Madden were co-defendants at a jury trial that started on December

8, 2019. Nurse Jackson testified extensively as to her interview with A.C.,

recounting A.C.’s description of events from the day before the incident

through A.C.’s arrival at Eskenazi. This testimony included an allegation that

Jones’s missing package contained heroin. Tr. Vol. III p. 106-107. Jones

objected to the nurse’ testimony on hearsay grounds. The trial court admitted

the testimony under two hearsay exceptions: that the statements were excited

utterances and that they were made for the purpose of medical diagnosis or

treatment.

[12] On December 11, 2019, Jones was convicted of two counts of Level 3 felony

aggravated battery, Level 2 felony kidnapping, Level 2 criminal confinement,

and Level 5 felony kidnapping. He was found not guilty of Level 3 felony

criminal confinement and Level 5 felony battery resulting in serious bodily

injury. The State dismissed the other charges before trial. On January 6, 2020,

the trial court sentenced Jones to ten years for each aggravated battery count, to

run consecutively to each other. The trial court also sentenced him to twenty

years for each Level 2 felony and four years for the kidnapping conviction, to be

served concurrently with each other and consecutively with the battery

convictions. Jones’ aggregate term of imprisonment is forty years. Jones now

appeals.

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 Discussion and Decision
I. Hearsay
[13] Jones argues that Nurse Jackson’s testimony regarding her interview with A.C.

was inadmissible hearsay, and that the admission of this testimony prejudiced

Jones. The trial court’s decision to admit evidence is discretionary and will be

reversed only for an abuse of that discretion. Lewis v. State, 34 N.E.3d 240, 247

(Ind. 2015).

[14] Hearsay—an out-of-court statement admitted for the truth of the matter

asserted—is generally inadmissible unless it falls under an exception. Ind. Evid.

R. 801(c), 802. The State defended admission of the testimony, arguing that

A.C.’s statements were excited utterances and that they were made for medical

diagnosis or treatment. Tr. Vol. III p. 101, 121. Jones disagreed on both

counts.

[15] Jones argues that A.C.’s statements to Nurse Jackson were too attenuated from

the stressful event to come in under the excited utterance exception. An excited

utterance is a “statement relating to a startling event or condition, made while

the declarant was under the stress of excitement that it caused.” Ind. Evid. R.

803(2). There are three elements that must be met for hearsay to be admitted

under the excited utterance exception: “(1) a ‘startling event or condition’ has

occurred; (2) the declarant made a statement while ‘under the stress or

excitement caused by the event or condition;’ (3) the statement was ‘related to

the event or condition.’” Ramsey v. State, 122 N.E.3d 1023, 1032 (Ind. Ct. App.

Court of Appeals of Indiana | Opinion 20A-CR-202 | October 29, 2020 Page 6 of 23
 2019). Excited utterances are thought to be more trustworthy because “the

declarant was incapable of thoughtful reflection.” Yamobi v. State, 672 N.E.2d

1344, 1346 (Ind. 1996).

[16] The passage of time reduces the likelihood that an utterance is spontaneous.

Chambless v. State, 119 N.E.3d 182 (Ind. Ct. App. 2019). However, “continuing

trauma” can “render[] the declarant more reliable.” Jenkins v. State, 725 N.E.2d

66, 69 (Ind. 2000). For example, our Supreme Court held in Yamobi that it was

reasonable to conclude that a shooting victim’s statements were reliable despite

being made up to an hour after the shooting, because he “lay on his back

bleeding and in pain” during that time and was perhaps incapable of reflection

and deliberation. 672 N.E.2d at 1347.

[17] Jones argues that A.C.’s statements did not satisfy the second element because

several hours passed between A.C.’s ordeal and her interview with Nurse

Jackson. He suggests that the time that passed and the number of people A.C.

spoke with allowed her story to become rehearsed.

[18] However, there is substantial evidence that A.C. suffered “continuing trauma”

between the time of the attack and the time Nurse Jackson interviewed her.

A.C. testified that the pain she experienced was “worse than ten.” Tr. Vol. II p.

208. The woman who helped A.C. call for help testified that A.C. was scared,

that “she was crying, her face was busted,” and that “her skin was a bubble.”

Tr. Vol. III p. 26-28. One of the police officers who spoke with A.C. at

Eskenazi Hospital testified that A.C.’s injuries were “some of the worst injuries

Court of Appeals of Indiana | Opinion 20A-CR-202 | October 29, 2020 Page 7 of 23
 I’ve seen next to death.” Id. at 85. Nurse Jackson testified that when she spoke

with A.C. hours after the incident, A.C. was still “shaking,” “shivering,” and

“grimacing” from the pain. Id. at 95-96.

[19] Given A.C.’s medical condition and her intense pain, it was not against the

logic and effect of the facts and circumstances before the trial court to find that

A.C. was still under the stress of the event when she spoke with Nurse Jackson,

even though it was hours later. Under these circumstances, the trial court did

not abuse its discretion by finding that Nurse Jackson’s testimony was

admissible under the excited utterance exception to the hearsay rule. 2

II. Double Jeopardy
[20] Jones argues that this Court should vacate one of his two aggravated battery

convictions and both of his kidnapping convictions because they violate the

continuous crime doctrine.

[21] While briefs were being filed in this case, our Supreme Court issued two

decisions that call into question whether common law double jeopardy

2
Because we find that the testimony was admissible under the excited utterance exception to the hearsay
rule, we need not and will not consider whether the statements were also admissible as statements made for
the purpose of medical diagnosis or treatment. Moreover, Jones is particularly concerned with Nurse
Jackson’s statement that the missing package may have contained heroin. Because the trial did not consider
any drug offenses, there is little likelihood that the heroin allegation contributed to the verdict.

Court of Appeals of Indiana | Opinion 20A-CR-202 | October 29, 2020 Page 8 of 23
 doctrines such as the continuing crime doctrine still act as independent sources

of relief. As we recently stated:

our Supreme Court . . . significantly altered the approach to
claims of double jeopardy that—like the one here—are based on
multiple convictions in a single prosecution. See Wadle v. State,
[151 N.E.3d 227 (Ind. 2020)] and Powell v. State, [151 N.E.3d 256
(Ind. 2020)]. The Court distinguished these claims of
“substantive double jeopardy” from claims of “procedural double
jeopardy”—where a defendant is charged with the same offense
in successive prosecutions.

Hill v. State, ---N.E.3d---, No. 49G01-1807-F5-21906, slip op. at 3-4 (Ind. Ct.

App. Oct. 2, 2020). Before Wadle and Powell, we reviewed substantive double

jeopardy claims under the constitutional tests set out in Richardson, or under

various common law and statutory rules, like the continuous crime doctrine.

717 N.E.2d 32; see also Pierce, 761 N.E.2d at 830. “In Wadle, however, the Court

overruled the Richardson constitutional tests as they apply to claims of

substantive double jeopardy. See Wadle, [151 N.E.3d at 235]. The Court then

set forth two new tests that start with statutory interpretation but that also

incorporate, where appropriate, the common-law continuous-crime doctrine.”

Wadle, [151 N.E.3d at 247-49]; Powell, [151 N.E.3d at 263-65].” Hill, slip op. at

4 (footnote omitted).

[22] Jones argues that this change has nothing to do with his continuous crime

doctrine claims and those claims still act as an independent source of review.

We disagree. Wadle and Powell not only overruled the constitutional

substantive double jeopardy test in Richardson, they also swallowed statutory

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 and common law to create one unified framework for substantive double

jeopardy claims—including the continuous crime doctrine.

[23] With Wadle and Powell, our Supreme Court intended to end so-called “double

jeopardy double talk.” Wadle, 151 N.E.3d at 244 (quoting Akhil Reed Amar,

Double Jeopardy Law Made Simple, 106 YALE L.J. 1807, 1807 (1997)). The

Court took issue with Richardson for “failing to resolve all double-jeopardy

claims under a ‘single comprehensive rule,’” causing inconsistent reliance on its

constitutional test and “rules of statutory construction and common law.” Id.

at 243. These “separate” and “additional” protections “generat[ed] confusion”

and a “patchwork of conflicting precedent.” Id. at 243-44. The Court did not

recite these criticisms only to repeat the confusion inadvertently launched by

Richardson, “Reading Wadle in its entirety, along with Powell, it becomes clear

that the Court’s intent was to do away with all existing rules and tests for

substantive double jeopardy, including . . . the Richardson constitutional tests . .

. and start from scratch with new tests.” Hill, slip. op. at 6-7. Put simply, if the

old substantive double jeopardy analysis was like baking a cake from scratch by

using numerous ingredients pulled from common law and statutory rules,

Wadle and Powell are like using a cake mix: the new test allows for more

consistent results more efficiently, without having to account for all of the

discrete ingredients that may or may not be hiding in the back of the cupboard.

[24] These new tests incorporate principles of statutory interpretation and common

law, supplanting both. Wadle and Powell first require an analysis of the

statutory offenses charged. Wadle, 151 N.E.3d at 248; Powell, 151 N.E.3d at

Court of Appeals of Indiana | Opinion 20A-CR-202 | October 29, 2020 Page 10 of 23
 264. Second, they require an examination of the underlying facts. Wadle, 151

N.E.3d at 249; Powell, 151 N.E.3d at 264. Pertinent to the case at hand, this

second tier of analysis includes the continuous crime test verbatim: the court

asks “whether the defendant’s actions were ‘so compressed in terms of time,

place, singleness of purpose, and continuity of action as to constitute a single

transaction.’” Id. (quoting Walker, 932 N.E.2d at 735). The Court quoted

Walker, a continuous crime case, and included a footnote explaining the

applicability of the continuous crime doctrine to multiplicity claims. Wadle, 151

N.E.3d n.26. The Court did not simply borrow useful language; it incorporated

the continuous crime doctrine into its uniform substantive double jeopardy

framework.

[25] In light of this, Jones’s assertion that “the Powell decision did not profess to

apply the continuous crime doctrine, let alone overrule or displace Indiana law

in that area” is mistaken. Appellant’s Reply Brief p. 8. The test under Wadle

and Powell applies to Jones’s multiplicity claim. And even if it did not, the

result would be the same. Under both the old continuous crime doctrine test

and the new uniform substantive double jeopardy test, Jones’s battery

convictions survive, but his Level 5 felony kidnapping and Level 2 felony

criminal confinement convictions must fall.3

3
We analyze Jones’s claim under both the common law continuous crime doctrine test and the new Wadle
and Powell framework to avoid the potentially sticky question of Wadle and Powell’s retroactivity.

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[26] “Substantive double jeopardy claims principally arise in one of two situations:

(1) when a single criminal act or transaction violates multiple statutes with

common elements, or (2) when a single criminal act or transaction violates a

single statute and results in multiple injuries.” Powell, 151 N.E.3d at 263.

Jones’s battery convictions are in the latter category and follow Powell; 4 his

kidnapping and criminal confinement convictions are in the former category

and follow Wadle.

A. Powell: Single Act, Multiple Injuries
[27] For acts that violate a single statute but result in multiple injuries, we engage in

a two-step process. First, we review the text of the statute to identify the

appropriate “unit of prosecution.” Id. at 265. The unit of prosecution is the

minimum action required to commit a new and independent violation of a

criminal statute. Barrozo v. State, --- N.E.3d ---, No. 19A-CR-2037, slip op. at p

4 (Ind. Ct. App. Sept. 24, 2020) (quoting United States v. Rentz, 777 F.3d 1105,

1117 (10th Cir. 2015)). If the unit of prosecution is clear, “we follow the

legislature’s guidance and our analysis is complete.” Powell, 151 N.E.3d at 264.

If the statute is ambiguous, we must then examine the facts to determine

4
Jones argues that Powell is inapplicable to his battery convictions because it deals with offenses resulting in
the injury or death of multiple victims, rather than multiple injuries of one victim. Appellant’s Reply Brief p.
8. Powell is not so limited. In its introduction, Powell asks, “Does every punch thrown upon a single victim
amount to a separate act of battery?” 151 N.E.3d at 261. What follows is clearly intended to answer that
question. “[W]e ask whether ‘the same act may be twice punished,’ as ‘two counts of the same offense.’” Id.
at 263. Although Wadle limits Powell’s scope to “when a single criminal act or transaction violates a single
statute but harms multiple victims,” Wadle, 151 N.E.3d at 247 (emphasis added), Powell describes itself as
applying “when a single criminal act or transaction violates a single statute and results in multiple injuries,”
Powell, 151 N.E.3d at 263 (emphasis added). Powell provides the more precise description of its own content.

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 whether the defendant’s actions are “so compressed in terms of time, place,

singleness of purpose and continuity of action as to constitute a single

transaction.” Id. (citing Walker, 932 N.E.2d at 735). We review questions of

statutory law de novo. Id. at 262.

[28] To assist in determining the unit of prosecution, Powell distinguished conduct-

based statutes from result-based statutes:

A conduct-based statute . . . consists of an offense defined by
certain actions or behavior (e.g., operating a vehicle) and the
presence of an attendant circumstance (e.g., intoxication). . . . A
result-based statute, on the other hand, consists of an offense
defined by the defendant’s actions and the results or
consequences of those actions.

Id. at 265-66 (emphases original). Examples of result-based statutes include

murder, manslaughter, reckless homicide, and battery. Id.

1. Battery Convictions
[29] First, we consider Jones’s two aggravated battery convictions. “A person who

knowingly or intentionally inflicts injury on a person that creates a substantial

risk of death or causes: (1) serious permanent disfigurement . . . commits

aggravated battery, a Level 3 felony.” Ind. Code 35-42-2-1.5(1). This is a

result-based statute, because the result—injury that creates a substantial risk of

death or causes serious permanent disfigurement—“is part of the definition of

the crime.” Powell, 151 N.E.3d at 266 (quoting Kelly v. State, 527 N.E.2d 1148

(Ind. Ct. App. 1988). “‘Where several . . . injuries occur in the course of a

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 single incident,’ the prohibited offense has been perpetrated ‘several times

over.’” Id. (quoting Kelly, 527 N.E.2d 1148).5 Accordingly, each time Madden

threw hot water on A.C. could support a separate battery claim. However, how

this result-based statute applies when there is a single victim who suffered

multiple, substantially similar injuries because of multiple instances of the same

act is ambiguous.

[30] Because of this ambiguity, we move onto the second step in the Powell analysis

and examine whether the acts were “so compressed in terms of time, place,

singleness of purpose and continuity of action as to constitute a single

transaction.” Powell, 151 N.E.3d at 264. Importantly, this step is the same as

the continuous crime doctrine analysis. If the acts will bear separate charges

under this prong of Powell, they will also bear separate charges under the

continuous crime doctrine.

[31] The two acts of throwing hot water on A.C. did not constitute a single

transaction. First, they did not occur at the same time. A.C. testified that after

the first act, she fell to the floor, crawled away from her attackers, was beaten,

went to the bathroom, started taking off her clothes, and was alone for a

moment before more hot water was thrown on her. Second, Madden did not

fling scalding hot water on A.C. in the same place. The first act happened near

5
Although Powell and its primary citing authority for this proposition, Kelly, involve multiple victims, it
follows that when the unit of prosecution is intentionally-inflicted injury, as in battery, and a single victim
suffers multiple intentionally-inflicted injuries, the offense has potentially been committed multiple times,
depending on how the offenses were charged and the facts adduced at trial.

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 the kitchen, and the second act happened in the bathroom. Third, the acts did

not share a purpose. The first act was part of an interrogation; the second act

was punitive. Because one battery occurred while A.C. was clothed, and one

while she was not, it would be reasonable to infer that they resulted in different

injuries.

[32] Jones argues that Gomez v. State, 56 N.E.3d 697 (Ind. Ct. App. 2016), in which

this Court applied the continuous crime doctrine to reverse two of the

defendant’s domestic battery convictions, requires reversal here. However,

unlike Gomez, where the defendant engaged in a continuous, three-minute-long

battery to remove his ex-wife from his property, the facts in this case indicate

that Madden’s acts were not part of a continuous attack, but a punctuated one.

Gomez v. State, 56 N.E.3d 697 (Ind. Ct. App. 2016). Accordingly, we affirm

Jones’s conviction on two counts of aggravated battery.

2. Kidnapping Convictions
[33] Next, we consider Jones’s kidnapping convictions, one for Level 5 felony

kidnapping and one for Level 2 felony kidnapping. The State concedes that

both convictions cannot stand. We elect to evaluate these convictions

notwithstanding the State’s concession, because Powell substantially altered the

relevant analysis.

[34] “A person who knowingly or intentionally removes another person, by fraud,

enticement, force, or threat of force, from one place to another, commits

kidnapping.” Ind. Code § 35-42-3-2(a). One of Jones’s charges was elevated to

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 a Level 5 felony because the kidnapping resulted in “bodily injury to a person

other than the removing person,” and the other was elevated to a Level 2 felony

because it was committed “with intent to obtain ransom.” §35-42-3-a(b)(2),

(b)(4). Unlike battery, kidnapping is a conduct-based crime defined by the

defendant’s actions, rather than the result of those actions. The gravamen of

the offense is removal; a particular result or motive can elevate the offense, but

does not form the basis of a second, discrete offense. See, e.g., Barrozo, ---, No.

19A-CR-2037, slip op. at p 6 (holding that the result of an act of reckless driving

offense can elevate the offense, but does not constitute a separate offense).

[35] Jones’s actions only constituted one kidnapping offense under the statute. In its

charging information, the State described only one removal, “from a car into a

house.” App. Vol II p. 136. The only things that distinguish the Level 2

conviction (injury) from the Level 5 conviction (ransom) are result and motive.

These are not the units of prosecution for kidnapping. Because only one

kidnapping offense was committed, only one can stand.

[36] The State concedes that the Level 5 felony conviction should be vacated. We

agree. As the State satisfied its burden for both felonies, the lesser felony should

fall. See, e.g., Moala v. State, 969 N.E.2d 1061, 1065 (Ind. Ct. App. 2012)

(observing that generally, “when a double jeopardy violation is found, the

reviewing court simply orders the conviction that is the lower class of crime to

be vacated”). Accordingly, we remand with instructions to vacate the Level 5

felony kidnapping conviction and resentence Jones accordingly.

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 B. Wadle: Single Act, Multiple Statutes
[37] Having determined that the Level 5 felony kidnapping conviction cannot stand,

we turn to the Level 2 felony kidnapping and criminal confinement convictions.

The State concedes that the acts underlying these convictions were continuous,

and that the criminal confinement conviction must fall. We agree. Still, we

review these convictions notwithstanding the State’s concession because Wadle

significantly altered the relevant analysis.

[38] Wadle’s two-part inquiry applies when a single act or transaction implicates

multiple statutes. Wadle, 151 N.E.3d at 235. First, we look to the statutes

under which the defendant was charged.

If either statute clearly permits multiple punishment, whether
expressly or by unmistakable implication, the court’s inquiry
comes to an end and there is no violation of substantive double
jeopardy. But if the statutory language is not clear, then a court
must apply our included-offense statutes to determine whether
the charged offenses are the same. See I.C. § 35-31.5-2-168. If
neither offense is an included offense of the other (either
inherently or as charged), there is no violation of double
jeopardy.

Id. at 253. If one offense is included in the other, we move onto the
second step of our analysis and examine the underlying facts.

If, based on these facts, the defendant's actions were “so
compressed in terms of time, place, singleness of purpose, and
continuity of action as to constitute a single transaction,” then
the prosecutor may charge the offenses as alternative sanctions

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 only. But if the defendant's actions prove otherwise, a court may
convict on each charged offense.

Id.

[39] Here, we consider Jones’s criminal confinement and kidnapping convictions.

“A person who knowingly or intentionally removes another person by fraud,

enticement, force, or threat of force, from one place to another commits

kidnapping.” Ind. Code 35-42-3-2(a). “A person who knowingly or

intentionally confines another person without the person’s consent commits

criminal confinement.” Ind. Code 35-42-3-3(a). Neither statute by its text

permits multiple punishment.

[40] Next, we turn to our included offense statutes. “Whenever: (1) a defendant is

charged with an offense and an included offense in separate counts; and (2) the

defendant is found guilty of both counts; judgment and sentence may not be

entered against the defendant for the included offense.” Ind. Code § 35-38-1-6.

An “included offense” is one that:

(1) is established by proof of the same material elements or less
than all the material elements required to establish the
commission of the offense charged;

(2) consists of an attempt to commit the offense charged or an
offense otherwise included therein; or

(3) differs from the offense charged only in the respect that a less
serious harm or risk of harm to the same person, property, or

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 public interest, or a lesser kind of culpability, is required to
establish its commission.

Ind. Code § 35-31.5-2-168. If neither offense is included in the other, there is no

double jeopardy violation. Wadle, 151 N.E.3d at 248.

[41] Criminal confinement requires proof of the same but fewer criminal elements as

kidnapping.6 A kidnapper must act “by fraud, enticement, force, or threat of

force,” whereas criminal confinement must be done without consent. Consent

is a “voluntary yielding to what another proposes or desires.” Consent, Black’s

Law Dictionary (11th ed. 2019). Non-consent is established by the methods

noted in the statute of “fraud, enticement, force, or threat of force.”

Kidnapping requires removal from one place to another, while criminal

confinement requires an act of confinement. In removing someone from one

place to another, a kidnapper has confined that person to those places. The

element of confinement is a necessary part of forced removal. As such,

confinement is a lesser included offense of kidnapping.

[42] The enhancements are also identical. Jones was convicted of Level 2 felony

kidnapping due to his “intent to obtain ransom.” Ind. Code § 35-42-3-

6
Prior to 2013, this proposition was well-established in Indiana law. See, e.g., Koch v. State, 952 N.E.2d 359
(Ind. Ct. App. 2011); Taylor v. State, 879 N.E.2d 1198 (Ind. Ct. App. 2008). A 2013 amendment to the
kidnapping statute that eliminated the language that “[a] person who knowingly or intentionally confines
another person: (1) with intent to obtain a ransom . . . commits kidnapping . . .” requires that we re-evaluate
the relationship between these two statutes. H.B. 1006, 118th Gen. Assemb., 1st Reg. Sess. (Ind. 2013).

Court of Appeals of Indiana | Opinion 20A-CR-202 | October 29, 2020 Page 19 of 23
 3(b)(4)(A). His intent to obtain a ransom also elevated the criminal

confinement conviction to a Level 2 felony. Ind. Code § 35-42-3-3(b)(4)(A).

[43] Because criminal confinement is included in kidnapping as charged, we must

move to the second step of the Wadle analysis. If Jones’s actions were “so

compressed in terms of time, place, singleness of purpose, and continuity of

action as to constitute a single transaction,” then Jones’s convictions for both

criminal confinement and kidnapping violate double jeopardy. Again, this is

the same analysis that is required under the continuous crime doctrine. See, e.g.,

Walker, 932 N.E.2d 733.

[44] The facts that prove confinement are identical to the facts that prove

kidnapping. A.C. was forced out of the car into the basement where she was

handcuffed. This single transaction satisfied the elements of both crimes. Both

charges were then elevated because she was taken with intent to collect a

ransom. The defendant’s actions were compressed in terms of time, place,

singleness of purpose and continuity of action because they were the same

actions. Convicting Jones of both kidnapping and criminal confinement

therefore violated the prohibition on substantive double jeopardy. We remand

with instructions to vacate the criminal confinement conviction in line with the

included offense statute and to resentence accordingly. Ind. Code § 35-38-1-6.

Court of Appeals of Indiana | Opinion 20A-CR-202 | October 29, 2020 Page 20 of 23
[45] The judgment of the trial court is remanded with instructions to vacate the

Level 2 felony criminal confinement and Level 5 felony kidnapping convictions

and resentence Jones accordingly. In all other respects, we affirm.

Bailey, J., concurs.
Vaidik, J., concurs with a separate opinion.

Court of Appeals of Indiana | Opinion 20A-CR-202 | October 29, 2020 Page 21 of 23
 IN THE
COURT OF APPEALS OF INDIANA

Quantavious Jones, Court of Appeals Case No.
20A-CR-202
Appellant-Defendant,

v.

State of Indiana,
Appellee-Plaintiff

Vaidik, J., concurring.

[46] I concur in full with the well-reasoned lead opinion, but I write separately to

add an observation about applying Wadle and Powell to future cases. Because

the ground recently shifted in double-jeopardy analysis, our Court and the trial

courts will be asked to sort out scenarios we can only now imagine. It is

attractive, yet unrealistic, to believe that these two tests can be superimposed on

any future contingencies and provide the answer to all our double-jeopardy

queries. Neither test may provide the perfect fit. Instead of trying to cram each

possibility into the Wadle bucket or the Powell bucket, we should be guided by

the principles expounded in the two cases.

Court of Appeals of Indiana | Opinion 20A-CR-202 | October 29, 2020 Page 22 of 23
[47] Neither the Wadle test nor the Powell test applies neatly to Jones’s two

kidnapping convictions: a defendant convicted multiple times under a single

statute for a single criminal act against a single victim where multiple enhancing

circumstances under the statute are present. However, a controlling principle

can be distilled from Powell: there can never be multiple convictions under a

single statute unless there are multiple victims or multiple criminal acts, or both.

Because Jones’s two kidnapping convictions are based on a single criminal act

(one act of kidnapping) against a single victim (A.C.), only one conviction may

stand. Tacking multiple enhancing circumstances on a single criminal act does

not alter that conclusion. The underlying crime has still been committed only

once. See Powell, 151 N.E.3d at 266 (“To be sure, a specific result or

consequence (e.g., death or serious bodily injury) may enhance the penalty

imposed. But multiple consequences do not establish multiple crimes, since the

crime may still be committed without the consequence.” (cleaned up)). As such,

I concur that one of Jones’s kidnapping convictions must be vacated.

Court of Appeals of Indiana | Opinion 20A-CR-202 | October 29, 2020 Page 23 of 23