dissenting.
I respectfully dissent on Issue III. The robbery and attempted robbery convictions coupled with the confinement convictions violate the federal and state protections against double jeopardy. Here, the force necessary for the commission of the robbery was coexistent with the confinement of the victims in the apartment. I would remand to the trial court for resentencing and order the court to vacate the convictions for confinement.
Austin entered the apartment and declared his intentions to rob the occupants. Accordingly, he assumed control of the occupants, took items of value, and escaped. The majority upholds seven counts of confinement on the grounds that "[the victims'] personal liberties were interfered with prior to and immediately after being robbed by Defendant,1 At 174, (emphasis added). This statement, in light of the *175facts of this case, indicates a fundamental misunderstanding of what constitutes the offense of robbery. Robbery is more than the mere act of taking. Robbery is a taking from the victim or his presence by force or threat of force. In order to obtain a conviction for robbery, the State must prove that the taking of property was effectuated by: 1) using or threatening to use force; or 2) putting the other person in fear. Ind.Code 35-42-5-1. Robbery is larceny by violence. Cooper v. State (1972), 14 Md.App. 106, 286 A.2d 579. The offense of robbery is an aggravated form of theft. Thomas v. State (1959), 168 Tex.Crim. 225, 324 S.W.2d 869.
It is true that the victim's liberties were interfered with before and after the actual taking. However, the interference with the victims' liberties was that only necessary to commit the robbery. If we were to hold otherwise, then force which would constrain a victim's liberty at any other time except the period contemporaneous with the actual taking of the money or property would constitute the crime of confinement.
After the taking, Austin instructed the occupants to remain in the apartment until he was gone. The escape was part and parcel to the accomplishment of a successful robbery. In People v. Estes (1983), 147 Cal.App.3d 23, 194 Cal.Rptr. 909, the court observed:
A robbery is not completed at the moment the robber obtains possession of the stolen property. The crime of robbery includes the elements of asportation, the robbers escape with the loot being considered as important as gaining possession of the property.... The crime of robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety.... The crime is not divisible into a series of separate acts. Defendant's guilt is not to be weighed at each step of the robbery as it unfolds. The events constituting the crime of robbery, although they may extend over large distances and may take some time to complete, are linked by a single-mindedness of purpose.
As I stated in my dissent in Polk v. State (1991), Ind.App., 578 N.E.2d 687, 693 (where the majority held that a robbery was completed when the valuables were taken), "(ilt is logical to assume any robber worth his salt would, in attempting to escape, tell his vietim not to move until he is away from the area. The escape is just as much of a part of the successful completion of the crime as taking the money from the victim." Robbery "includes the element of asportation, and this taking away is a transaction which continues as the perpetrators depart from the place where the property was seized." People v. Beghtel (1958), 164 Cal.App.2d 294, 330 P.2d 444, aff'd. 239 Cal.App.2d 692, 49 Cal.Rptr. 285 (Robbery conviction for driver of get-a-way car upheld).2
I do not disagree with the majority's statement, "If a robber approaches a group of people, but only robs one while instructing the others not to move, he has confined the others in addition to robbing the one.3 At 174.3 I believe this is a correct state*176ment of the law; because if a robber confronts two victims, robs Victim 1, and holds Victim 2 at bay, he is guilty of the robbery of Victim 1 (the confinement merges into the robbery), and the confinement of Vice-tim 2 (the confinement of Victim 2 has no robbery in which to merge).
As noted earlier, robbery is defined as taking property from another person or from the presence of another person by either the use or threat of force or by putting the victim in fear. I.C. 85-42-5-1. Thus, in a situation where two people or more are robbed, the robber must hold Victim 2 at bay while taking valuables from Victim 1 in order to keep Victim 2 accessible for a robbery. If the robber ignores Victim 2 who then wanders off, he cannot rob Victim 2 because that victim is no longer in the presence of the robber. It stretches logic and good common sense to state that holding a person at bay in these circumstances is not necessary to commit the robbery. Perhaps the confusion by the majority is caused by the fact that when two people or more are robbed, the force is different than if one person is robbed-but it's still the force necessary to get the job done.
I believe my position in this case is fully supported by Bowling v. State (1990), Ind., 560 N.E.2d 658; Stwalley v. State (1989), Ind., 534 N.E.2d 229; Kizer v. State (1986), Ind., 488 N.E.2d 704. In analyzing these cases, Judge Conover stated in Wright v. State (1992), Ind.App., 590 N.E.2d 650, 651:
Thus, it is clear, convictions on two or more counts of criminal conduct arising from "a single confrontation" per Bowling, the "same short span of time" per Stwalley and Kizer, and the defendant's "singular act" per Hansford v. State (1986), Ind., 490 N.E.2d 1083, 1089, violate a sexual attacker's double jeopardy rights.
Accordingly, the seven counts of confinement should be vacated.
. The majority strains to dissect the robbery into three distinct periods of time-1) the approach, 2) the physical taking of the property, and 3) the retreat-in order to uphold the confinement convictions. It seems to me that no matter how one slices it, we are concerned with one event-a robbery. Dividing the event as the majority suggests supports twenty.one (21) counts of confinement of which seven (7) merge into the crime of robbery. The majority supports its determination that the defendant was properly convicted of seven (7) counts of confinement by stating that the victims were constrained both before and after the robbery. That rationale supports fourteen (14) counts of confinement.
Hypothetically, and under the majority's artificial "before and after confinement theory," a robber could be charged with one count of Robbery, a class B felony (armed with a deadly weapon), plus two counts of Confinement, class B felonies (armed with a deadly weapon), for the approach and retreat from a single victim. The maximum sentence for a class B robbery is twenty (20) years. The class B confinement convictions would enhance this maximum by an additional forty (40) years for a total of sixty (60) years-and violate the clear intent of the legislature that the maximum penalty for armed robbery should be twenty (20) years. "[The Double Jeopardy Clause does no more than prevent the sentencing court from prescribing a greater punishment than the legislature intended." Missouri v. Hunter (1983), 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535.
. I also observe that the jury was given incorrect instructions with regard to the confinement charges. They were told that a class D confinement was an included offense of the class B confinement (deadly weapon) charge. However, they were instructed that a class C robbery was the only included offense of armed robbery, although class D confinement is an inherently included offense. Consequently, the jury's general verdicts of confinement of each of the victims could have been based upon the confinements which merged with the robberies and attempted robberies and not, under the majority's before and after theory, upon the confinements before and after the robbery.
. The majority's statement conflicts with its "before and after theory" language which it also relies upon to uphold the confinement convictions. In a typical robbery, under the majority's "after theory," the robber is not just guilty of robbing Victim 1 but, rather, guilty of robbing and confining Victim 1 when he holds the victim at bay while escaping. As to the other members of the group present during the robbery of Victim 1, according to the "after theory" in this case and in Polk, supra, since the physical taking of the money ends the robbery, the robber is guilty of two confinements, not just one, against the others; i.e., confinement during the robbery of Victim 1 and confinement as the robber makes his retreat.