ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Karen M. Freeman-Wilson
Public Defender of Indiana Attorney General of Indiana
Gregory L. Lewis Christopher L. Lafuse
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
In The
INDIANA SUPREME COURT
JOHN REDMAN )
Defendant-Appellant, )
)
v. ) 28S00-9909-CR-466
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE GREENE SUPERIOR COURT
The Honorable David Holt, Judge
Cause No. 28D01-9805-CF-244
________________________________________________
On Direct Appeal
March 9, 2001
DICKSON, Justice
The defendant, John Redman, was convicted of murder,[1] conspiracy to
commit murder, a class A felony,[2] criminal deviate conduct, a class A
felony,[3] and criminal confinement, a class B felony,[4] for a 1995
criminal episode in Linton, Indiana, that resulted in the death of Pamela
Foddrill.[5] Redman was sentenced to life imprisonment without parole for
the murder conviction. The trial court also imposed consecutive sentences
of fifty years for conspiracy to commit murder, fifty years for criminal
deviate conduct, and twenty years for criminal confinement.
In this appeal, Redman claims: (1) insufficient evidence of
resulting serious bodily injury to prove class B felony criminal
confinement; (2) insufficient evidence of threat to kill to prove class A
felony criminal deviate conduct; and (3) violation of the Indiana
Constitution's Double Jeopardy Clause by his convictions for criminal
confinement as a class B felony and murder and by his convictions for
conspiracy to commit murder and criminal confinement. We affirm the
convictions for murder and conspiracy to commit murder. As to the other
convictions and sentences, we modify the judgment as more fully explained
below.
1. Class B Felony Criminal Confinement
Redman contends that, while there was evidence that the victim
suffered fractured bones, there was no evidence that these injuries
resulted from her being forcefully removed from one place to another and
that, for this reason, there was insufficient evidence to prove the serious
bodily injury element of criminal confinement as a class B felony.
In reviewing a claim of insufficient evidence, we will affirm the
conviction unless, considering only the evidence and reasonable inferences
favorable to the judgment, and neither reweighing the evidence nor judging
the credibility of the witnesses, we conclude that no reasonable fact-
finder could find the elements of the crime proven beyond a reasonable
doubt. Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000); Webster v.
State, 699 N.E.2d 266, 268 (Ind. 1998); Hodge v. State, 688 N.E.2d 1246,
1247-48 (Ind. 1997). The State charged that Redman knowingly or
intentionally removed the victim by force from one place to another, which
resulted in serious bodily injury, namely fractured bones. The criminal
confinement statute reads as follows:
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, a Class D felony. However, the offense
is a Class C felony if the other person is less than fourteen (14)
years of age and is not the person's child, and a Class B felony if it
is committed while armed with a deadly weapon or results in serious
bodily injury to another person.
Ind.Code § 35-42-3-3. This statute defines two separate criminal offenses:
confinement by non-consensual restraint in place and confinement by
removal from one place to another. Kelly v. State, 535 N.E.2d 140, 140-41
(Ind. 1989). The State charged Redman only with the victim's removal, but
not with her restraint in place.
Criminal confinement is a class B felony if it "results in serious
bodily injury to another person." Ind.Code § 35-42-3-3. Redman contends
that there was no evidence that the victim's fractured bones resulted from
the criminal offense of removal from one place to another. The State does
not respond to this contention, but rather argues only that Redman held the
victim captive in an attic for several days and that the victim's injuries
resulted "during the course of her confinement." Br. of Appellee at 8.
The State does not identify any evidence tending to show that the victim's
broken bones resulted from Redman's removal of her from one place to
another. Because we conclude that there was insufficient evidence to
permit a jury to find beyond a reasonable doubt that the victim's injuries
resulted from the charged criminal offense of criminal confinement by
removing the victim from one place to another, we vacate the conviction as
a class B felony and impose it as a class D felony.
Rather than remand this matter to the trial court for the purpose of
determining the appropriate sentence for criminal confinement as a class D
felony, we will make the determination, "mindful of the penal consequences
that the trial court found appropriate." Richardson v. State, 717 N.E.2d
32, 54 (Ind. 1999). Finding that the four aggravating circumstances
outweighed one mitigating circumstance, the trial court imposed the maximum
enhancement of the offense as a class B felony. We likewise impose the
maximum enhancement of the offense as a class D felony, sentencing Redman
to three years on this count, to run consecutively to his other sentences
in this case.
2. Class A Felony Criminal Deviate Conduct
Redman contends that there was insufficient evidence of deadly force
to prove criminal deviate conduct as a class A felony. He requests that
his conviction on this count be reduced to a class B felony.
The relevant portions of the statute defining the criminal offense of
criminal deviate conduct provide: "A person who knowingly or intentionally
causes another person to perform or submit to deviate sexual conduct when
the other person is compelled by force or imminent threat of force . . .
commits criminal deviate conduct, a Class B felony. An offense . . . is a
Class A felony if it is committed by using or threatening the use of deadly
force . . . ." Ind.Code § 35-42-4-2.
Redman does not dispute that the evidence was sufficient to establish
that the victim was compelled by force or imminent threat of force to
perform or submit to deviate sexual conduct, thus supporting the conviction
as a class B felony. He argues, rather, that the evidence was not
sufficient to prove that the proscribed conduct was committed by using or
threatening to use deadly force, as required for conviction as a class A
felony. To justify the enhanced penal consequences that result from the
class A felony designation, the force used must be of such a nature that it
meets the statutory definition of "deadly force," which the code defines as
that which "creates a substantial risk of serious bodily injury." Ind.Code
§ 35-41-1-7.
The State responds by arguing that Redman and two accomplices held
the victim captive in inhumane conditions in an attic for several days
during which Redman and three other people committed several episodes of
deviate sexual conduct, and that before the end of the captivity Redman and
his accomplices decided to kill the victim. After a final incident of
Redman and Long engaging in intercourse with the victim, the two men beat
the victim with a baseball bat and stabbed her with a knife, killing her to
"keep her mouth shut." Record at 2037. The State argues that this
evidence was sufficient to permit the jury to infer that Redman threatened
to kill the victim while he engaged in intercourse with her.
The State does not, however, identify any evidence indicating the
nature of the force or threat of force used by the assailants to accomplish
their criminal deviate conduct. While the victim's submission was clearly
compelled by force, we find no evidence from which it can be reasonably
inferred that the force used for the deviate conduct was "deadly." We
conclude that there was insufficient evidence to establish that Redman
employed deadly force when he compelled the victim to perform or submit to
deviate sexual conduct.
As in the conviction for criminal confinement discussed above, we
find no need to remand for resentencing. For the same reasons previously
discussed, Redman's conviction for criminal deviate conduct is modified
from a class A to a class B felony, and we impose the maximum enhancement
resulting in a sentence of twenty years, to run consecutively to his other
sentences.
3. Double Jeopardy
Redman contends that the Double Jeopardy Clause of the Indiana
Constitution[6] requires that we vacate his conviction for criminal
confinement.[7] He argues that there is a reasonable possibility that the
jury used the evidence of the victim's abduction in establishing both the
offense of conspiracy to commit murder and that of criminal confinement.
To establish that two challenged offenses constitute the same offense
under the actual evidence test and thus violate the Indiana Double Jeopardy
Clause, the defendant must demonstrate a reasonable possibility that the
evidentiary facts used by the fact-finder to establish the essential
elements of one offense may also have been used to establish the essential
elements of a second challenged offense. Richardson, 717 N.E.2d at 53.
The essential elements of the offense of conspiracy to commit murder
are: (1) the defendant (2) agreed with one or more other persons to commit
the crime of murder (3) with the intent to commit murder and (4) the
defendant or one of the persons to the agreement performed an overt act in
furtherance of the agreement. Ind.Code § 35-41-5-2. The essential
elements of the charged offense of criminal confinement in this case are:
(1) the defendant (2) knowingly or intentionally (3) removed the victim by
force from one place to another. Ind.Code § 35-42-3-3.
The charging information identified four alternative overt acts:
abduction, confinement, rape, and disposing of the body. Redman points to
the language of the conspiracy charge that permitted the victim's abduction
to constitute the overt act element, and argues that the State's voir dire,
opening statement, testimony of a witness, and closing statement described
the initial abduction evidence as the basis for the criminal confinement
count. He argues that there is a "reasonable possibility that the
evidentiary facts used by the jury to establish the overt act of
'abduction' in the conspiracy charge may have also been used to establish
the essential element of forceful removal in the criminal confinement
charge." Br. of Appellant at 29.
In response, the State first argues that there is no reasonable
possibility that the jury relied on the same evidentiary facts to prove
both the confinement and the conspiracy charges. The State notes that the
charged alternative overt acts are supported by separate evidence. It
emphasizes the separate evidence of the continuous captivity, the repeated
rapes of the victim during several days, and the disposal of her body after
the murder. Alternatively, the State argues that the issue should be
remanded to the trial court for factual findings regarding the evidence
used by the jury as to each conviction.
Contrary to Redman's claim, to establish a violation of the Indiana
Double Jeopardy Clause under the actual evidence test, it is not sufficient
merely to show that the same evidence may have been used to prove a single
element of two criminal offenses. Rather, it is necessary to show a
possibility that the same evidentiary facts were used to prove the body of
essential elements that comprise each of two or more of the offenses
resulting in convictions. See Richardson, 717 N.E.2d at 53.
If the jury found Redman guilty of conspiracy to commit murder based
upon the single overt act of Redman's knowing or intentional removal of the
victim from one place to another, the convictions for both conspiracy and
criminal confinement would have been based on the same evidence and thus
would violate the Indiana Double Jeopardy Clause. The issue before us,
however, is not merely whether it is possible that this occurred, but
rather whether the likelihood of this occurrence is sufficiently
substantial for us to conclude that it is reasonably possible that this
occurred.
In Griffin v. State, 717 N.E.2d 73 (Ind. 1999), we were confronted
with a similar issue. The jury was instructed that the charge of
conspiracy to commit robbery could be established by various alleged overt
acts, one of which was the completed robbery itself. Noting the extensive
evidence of the other alleged overt acts, we rejected the claim of double
jeopardy and emphasized: "To establish that two offenses are the same
offense under the actual evidence test, the possibility must be reasonable,
not speculative or remote." Id. at 89.
In the present case, the evidence indicated that Redman and others
forcibly abducted the victim, a mentally retarded woman, and took her to a
residential attic where they confined her for several days, possibly more
than a week, during which they compelled her to engage in multiple acts of
oral, anal, and vaginal intercourse. After killing her, her assailants
left her body in the attic for several days, then moved it to a nearby
shed, and then removed it to a rural wooded site in Illinois.
In argument to the jury, the State did not restrict itself to the
abduction as the overt act for conspiracy. The prosecutor argued that
Redman and his accomplices "performed one or more of the overt acts, either
the abduction, the confinement, the rape or the disposal of the body. Of
course, we submit that all of them occurred, but if you only believed one
of them occur[red] and not the others, that's sufficient to convict."
Record at 2488.
The trial court's final Instruction No. 6, in part advised the jury
that the State "must allege and prove that either the person or the person
with whom he agreed performed an overt act in furtherance of the
agreement." Record at 428. The court's Instruction No. 7, enumerating the
elements of the offense of conspiracy to commit murder as charged in this
case, included its advisement that, to convict Redman of conspiracy to
commit murder, the State must have proved that he agreed with another
person to commit murder, that he did so with the intent to commit murder,
and that Redman or one of the other persons to the agreement "performed an
overt act in furtherance of the agreement by either abducting, or
confining, or raping, or disposing of the body of [the victim]." Id. at
430, 2530. As to the charge of criminal confinement, the court's
Instruction No. 9 authorized conviction upon finding proof beyond a
reasonable doubt that Redman knowingly or intentionally removed the victim
by force from one place to another. Id. at 432, 2531.
In view of the extensive evidence of the protracted criminal episode,
the State's closing argument, and the court's instructions which clearly
authorized any one of several bases for finding the overt act element, we
find no sufficiently substantial likelihood that the jury relied on the
evidence of the abduction by removal to establish the overt act element of
the conspiracy charge. The possibility is remote and speculative and
therefore not reasonable. Because there is no reasonable possibility that
the jury used the same evidentiary facts to establish the essential
elements of both criminal confinement and conspiracy to commit murder, we
reject Redman's claim that his convictions on these counts violated the
Indiana Double Jeopardy Clause.
Conclusion
We affirm Redman's convictions for murder and conspiracy to commit
murder. As to criminal confinement, we modify the judgment from a class B
felony to a class D felony and impose a sentence of three years, to be
served consecutively. As to criminal deviate conduct, we modify the
judgment from a class A felony to a class B felony and impose a sentence of
twenty years, to be served consecutively.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind.Code § 35-42-1-1.
[2] Ind.Code § 35-41-5-2; Ind.Code § 35-42-1-1.
[3] Ind.Code § 35-42-4-2(b).
[4] Ind.Code § 35-42-3-3(2).
[5] Today, we also decide the cases of Redman's companions, Roger Long
and Jerry Russell, who were each separately tried for their roles in these
crimes. Long v. State, --- N.E.2d --- (Ind. 2001); Russell v. State, ---
N.E.2d --- (Ind. 2001).
[6] Ind. Const. art. 1, § 14.
[7] In the alternative, he argues that the Double Jeopardy Clause at
least requires that his criminal confinement conviction be reduced to a
class D felony. We do not address this claim because we have already found
that the evidence is sufficient only for the conviction as a class D
felony.