ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Victoria Ursulskis Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Christopher L. Lafuse
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
MICHAEL W. GATES, )
)
Appellant (Defendant Below), )
)
v. ) No. 49S00-0011-CR-633
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark Renner, Magistrate
Cause No. 49G04-9812-CF-189570
December 20, 2001
SHEPARD, Chief Justice.
Michael W. Gates was convicted and sentenced for rape, criminal
deviate conduct, and criminal confinement. He seeks relief from his
sentence for criminal confinement on both statutory and double jeopardy
grounds. We affirm.
Facts and Procedural History
Gates met F.T. while dating her mother. Following his break-up with
the mother, Gates lived briefly with F.T. and her boyfriend. Around 9 a.m.
on November 25, 1998, Gates went to F.T.’s home and asked to use the
telephone. F.T. had been sleeping. She let Gates in and returned to bed,
asking him to lock the door when he left.
F.T. awoke when Gates jumped onto her bed. Gates told F.T. he was
“drunk and pissed off and not to mess with him.” (R. at 252, 254.) F.T.
noticed Gates was holding a rope and a knife. Gates hit F.T.’s head
against the headboard a few times, tied her hands behind her back with the
twine, covered her mouth with a bandana, and removed her nightgown by
cutting the straps with the knife.
Gates put the knife to F.T.’s throat and compelled her to walk to
another bedroom in the house. In that bedroom, Gates made F.T. perform
oral sex. He then forced sexual intercourse. Gates also inserted the
handle of his knife and another object (F.T. believed it was a bottle of
baby oil) into her vagina.
The telephone rang while Gates and F.T. were in the back bedroom.
Gates held the knife to F.T.’s throat and forced her into the living room
to answer the phone. Gates threatened to kill her if she said anything.
After the call, Gates forced F.T. to perform oral sex while in the living
room. He then took her back into the bedroom where he again raped her
vaginally.
After this final assault, Gates became distraught. He cried and
apologized and told F.T. she could call the police. F.T. told him to
leave. She then called her boyfriend, who returned home and helped her
contact the police.
Gates was charged with one count of rape, a class A felony, three
counts of class A criminal deviate conduct, and one count of confinement, a
class B felony. The State also charged Gates with being an habitual
offender.
The jury convicted Gates of the rape, two counts of criminal deviate
conduct, and confinement. Gates admitted to being an habitual offender.
The court imposed sentences of fifty years for rape, adding thirty years
for the habitual finding; followed by concurrent terms of fifty years for
each deviate conduct conviction; and twenty years for confinement. (R. at
24, 551-53.) The total executed term is thus 130 years.[1] Id.
The Confinement Sentence
Gates argues the trial court violated Indiana Code § 35-38-1-6 and
Article I, § 14 of the Indiana Constitution when it sentenced him for
criminal confinement. (Appellant’s Br. at 5-6.) The code section in
question prohibits the court from entering judgment and sentencing on both
an offense and an included offense. Ind. Code Ann. § 35-38-1-6 (West
2000). Article I, § 14 of the Indiana Constitution ensures that “[n]o
person shall be put in jeopardy twice for the same offense.”
Certainly, one who commits rape or criminal deviate conduct
necessarily “confines” the victim at least long enough to complete such a
forcible crime. Without pausing to elaborate on the statutory or
constitutional frameworks, Gates’ entitlement to relief depends upon
whether the confinement exceeded the bounds of the force used to commit the
rape and criminal deviate conduct.
Gates’ specific contention is that the confinement was a means used
to commit the rape and criminal deviate conduct because F.T. was bound only
during the commission of the charged offenses. (Appellant’s Br. at 7.) He
relies on Griffin v. State, 583 N.E.2d 191 (Ind. Ct. App. 1991), and Harvey
v. State, 719 N.E.2d 406 (Ind. Ct. App. 1999).
In both Griffin and Harvey, the court found the confinement charge to
be a lesser included offense because it was confinement by force. In
Griffin, the defendant confined the victim by holding her on the ground
while he attempted to rape her, and that act was also charged as evidence
of the attempted rape. Griffin, 583 N.E.2d at 195. In Harvey, the
defendant was charged with confinement by detaining the clerk while he
robbed a liquor store. Harvey, 719 N.E.2d at 408, 412. In neither case
did the perpetrator attempt to confine the victim through any means or
actions beyond those inherent in the commission of the crime. In each of
these cases, neither the crime nor the attempt could have been accomplished
without employing the restrictive force charged.
In the instant case, despite a similar duration, Gates’ confinement
of F.T. was distinct and elevated from the restraint necessary to commit
the other charged crimes. The State charged that Gates tied F.T.’s hands
with twine while armed with a knife. (R. at 30.) The elements of
confinement and use of force were distinct in this case. See Harvey, 719
N.E.2d at 411. Gates threatened F.T. with the knife during the commission
of each crime with which he was charged.[2] The tying of F.T.’s hands was
not an essential element of the rape or criminal deviate conduct.
The State provided evidence that Gates approached F.T. while armed
with a knife and tied her hands behind her back with twine. (R. at 254-
55.) There was also testimony and photographic evidence showing marks on
F.T.’s wrists made by the twine, (R. at 351, 365, 380, 382-85, 458), and
showing that twine was found in a trash can in F.T.’s home after the rape,
(R. at 277, 460). Such evidence portrays the confinement as an independent
crime. The tying of F.T.’s hands was not a necessary part of the rape and
criminal deviate conduct. Such restriction is not integral to the force or
limitations inherent in those charges.
Because Gates used additional methods to restrict F.T.’s freedom, the
trial court properly sentenced him on the criminal confinement count.
Conclusion
The judgment of the trial court is affirmed.
Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J., concurs in result.
-----------------------
[1] I.e., eighty years for rape, plus fifty years for the deviate conduct
and confinement convictions.
[2] It is well established in Indiana that the use of a single deadly
weapon during the commission of separate offenses may enhance the level of
each offense. See White v. State, 544 N.E.2d 569, 570 (Ind. Ct. App.
1989); Carrington v. State, 678 N.E.2d 1143, 1147-48 (Ind. Ct. App. 1997).