Cornelius Hines v. State of Indiana ( 2014 )


Menu:
  • Pursuant to Ind.Appellate Rule 65(D),
    this Memorandum Decision shall not be
    regarded as precedent or cited before any                Jun 17 2014, 10:07 am
    court except for the purpose of
    establishing the defense of res judicata,
    collateral estoppel, or the law of the case.
    
       ATTORNEY FOR APPELLANT:                               ATTORNEYS FOR APPELLEE:
    
       STACY R. ULIANA                                       GREGORY F. ZOELLER
       Bargersville, Indiana                                 Attorney General of Indiana
    
                                                             JOSEPH Y. HO
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana
    
    
                                       IN THE
                             COURT OF APPEALS OF INDIANA
    
       CORNELIUS HINES,                                      )
                                                             )
               Appellant-Defendant,                          )
                                                             )
                       vs.                                   )      No.52A05-1312-CR-594
                                                             )
       STATE OF INDIANA,                                     )
                                                             )
               Appellee-Plaintiff.                           )
    
    
                              APPEAL FROM THE MIAMI SUPERIOR COURT
                                  The Honorable Daniel C. Banina, Judge
                                     Cause No. 52D02-1209-FC-236
    
    
                                                   June 17, 2014
    
                        MEMORANDUM DECISION - NOT FOR PUBLICATION
    
       FRIEDLANDER, Judge
           Following a jury trial, Cornelius Hines was convicted of Count 1, Criminal
    
    Confinement1 as a class C felony, and Count 2, Battery2 as a class D felony. Hines now
    
    appeals, presenting two issues for our review:
    
           1. Do Hines’s convictions for battery and criminal confinement violate Indiana’s
              double-jeopardy protections?
    
           2. Is the sentence imposed inappropriate?
    
           We affirm.
    
           On August 28, 2012, while incarcerated at the Miami Correctional Facility, Hines
    
    attacked Regina Bougher, a correctional officer at the facility. Hines charged at Officer
    
    Bougher with his head and shoulder, striking her in the ribs. This action caused bruising
    
    and pain in Officer Bougher’s ribs. Hines then restrained Officer Bougher by pinning her
    
    right arm to the wall, grabbing her face with his other hand, and using the weight of his
    
    body to immobilize her. The attack was subsequently broken up when Officer Bougher
    
    was able to radio for help.       Following the incident, Officer Bougher was medically
    
    unable to return to work for a number of months.
    
           On September 26, 2012, the State charged Hines with criminal confinement and
    
    battery. Following a jury trial, Hines was found guilty as charged. The trial court
    
    sentenced him to concurrent terms of eight years on the confinement conviction and three
    
    years on the battery conviction. Hines now appeals.
    
                                                    1.
    
    1
      Ind. Code Ann. § 35-42-3-3 (West, Westlaw current with all legislation of the Second Regular
    Session of the 118th General Assembly (2014) with effective dates through May 1, 2014).
    2
      I.C. § 35-42-2-1 (West, Westlaw current with all legislation of the Second Regular Session of
    the 118th General Assembly (2014) with effective dates through May 1, 2014).
                                                   2
           Hines argues that his convictions for criminal confinement and battery violate the
    
    Indiana double jeopardy clause. Specifically, Hines argues that the convictions violate
    
    the actual-evidence test of the double jeopardy clause.
    
           Double-jeopardy claims arising under the Indiana Constitution are evaluated
    
    utilizing a two-part test, pursuant to which multiple offenses are the same offense in
    
    violation of article 1, section 14, “if, with respect to either the statutory elements of the
    
    challenged crimes or the actual evidence used to convict, the essential elements of one
    
    challenged offense also establish the essential elements of another challenged offense.”
    
    Richardson v. State, 
    717 N.E.2d 32
    , 49 (Ind. 1999). To prevail under the actual-evidence
    
    test, Hines must demonstrate that there is a reasonable possibility that the evidentiary
    
    facts used by the jury to establish the essential elements of one of his offenses may also
    
    have been used to establish all the essential elements of the other. See Davis v. State, 
    770 N.E.2d 319
     (Ind. 2002). In applying the actual-evidence test, we must ‘“identify the
    
    essential elements of each of the challenged crimes and … evaluate the evidence from the
    
    jury’s perspective.”’ Lee v. State, 
    892 N.E.2d 1231
    , 1234 (Ind. 2008) (quoting Spivey v.
    
    State, 
    761 N.E.2d 831
    , 832 (Ind. 2002)). The “reasonable possibility” standard “requires
    
    substantially more than a logical possibility” and “turns on a practical assessment of
    
    whether the jury may have latched on to exactly the same facts for both convictions.” Id.
    
    at 1236. “In determining what facts were used to support each conviction, we will
    
    consider the evidence, charging information, final jury instructions, and arguments of
    
    counsel.” Cole v. State, 
    967 N.E.2d 1044
    , 1050-1051 (Ind. Ct. App. 2012).
    
    
    
                                                 3
           Here, the evidentiary facts used to establish the confinement conviction were
    
    separate and distinct from those used to establish the battery conviction. To establish the
    
    battery conviction, the State presented evidence that Hines lunged toward Officer
    
    Bougher, striking her in the ribs with his head and shoulder.            Officer Bougher
    
    experienced pain and bruising in her ribs.        To establish the criminal-confinement
    
    conviction, the State presented evidence that Hines pinned Officer Bougher against the
    
    wall with the use of his arms and body. Officer Bougher testified in detail about how
    
    Hines pinned her right arm to the wall and she was not able to move. She received
    
    bruising on her right arm from the confinement.
    
           Moreover, in the State’s opening statement, the State described the incident saying
    
    that Hines
    
           [t]hen lunges at Officer Bougher putting his shoulder and head into her
           ribcage causing pain. He continues on with his violent act and pins her up
           against a concrete wall where he restrains her right arm, secures her left
           arm and puts another hand over her face where she cannot move and then
           strikes her head at least two times against a concrete wall.
    
    Transcript at 125. In its closing argument, the State again made a distinction in the
    
    evidence, noting that,
    
           [Hines] did so by lunging and initially striking [Officer Bougher] in the
           ribcage with his head and shoulder…. The assault continued whereby he
           pins her up against the wall placing one of her arms up against the wall,
           taking his other arm and ultimately having it across her face, pressing his
           body against hers, making her immobile as he bangs her head on the
           concrete wall.
    
    Id. at 195-96.
    
    
    
    
                                                4
             Based on the evidence as presented by the State, we find there is no reasonable
    
    possibility the jury relied on the same evidence to convict Hines of both offenses. We
    
    therefore conclude that double-jeopardy protections were not violated when the trial court
    
    convicted Hines of both criminal confinement and battery.
    
             Hines next argues that the convictions for criminal confinement and battery cannot
    
    stand under the continuing crime doctrine, which is a category of Indiana’s prohibition
    
    against double jeopardy. “The continuing crime doctrine essentially provides that actions
    
    that are sufficient in themselves to constitute separate criminal offenses may be so
    
    compressed in terms of time, place, singleness of purpose, and continuity of action as to
    
    constitute a single transaction.” Walker v. State, 
    932 N.E.2d 733
    , 735 (Ind. Ct. App.
    
    2010).     The continuing crime doctrine is applicable in two situations: (1) when a
    
    defendant is charged multiple times with the same offense, see Haggard v. State, 
    445 N.E.2d 969
     (Ind. 1983) (multiple convictions of criminal confinement); or (2) when a
    
    defendant is charged with an offense and a lesser included offense, see Taylor v. State,
    
    
    879 N.E.2d 1198
     (Ind. Ct. App. 2008).
    
             The facts do not place this case in either category to which the continuous crime
    
    doctrine applies. Hines was not convicted of multiple charges of criminal confinement or
    
    battery, nor is criminal confinement a lesser included offense of battery, or vice versa.
    
    Battery and confinement were two distinct chargeable crimes that occurred at different
    
    times. Battery occurred the moment Hines lunged toward Officer Bougher and hit her in
    
    the ribs with his head and shoulder. The confinement occurred when Hines thereafter
    
    
    
                                                  5
    pinned Officer Bougher with his arms and body against the wall and prevented her from
    
    moving. Thus, the continuing crime doctrine is not applicable.
    
          Finally, Hines argues that his convictions violate double-jeopardy protections
    
    because both the enhancement of battery to a class D felony and the enhancement of
    
    confinement to a class C felony are supported by the same bodily injury, i.e., Officer
    
    Bougher’s pain.
    
          The crime of criminal confinement is enhanced to a class C felony if “it results in
    
    bodily injury to a person other than confining or removing person.” I.C. § 35-42-3-
    
    3(b)(1). The crime of battery is enhanced to a class D felony if there is bodily injury to
    
    “an employee of a penal facility or a juvenile detention facility while the employee is
    
    engaged in the execution of the employee’s official duty.” I.C. § 35-42-2-1(a)(2)(J).
    
    Bodily injury is defined as “any impairment of physical condition, including physical
    
    pain.” Ind. Code Ann. § 35-31.5-2-29 (West, Westlaw current with all legislation of the
    
    Second Regular Session of the 118th General Assembly (2014) with effective dates
    
    through May 1, 2014).
    
          Hines’s battery conviction is based on his actions when he lunged at Officer
    
    Bougher with his head and shoulder, causing pain and bruising in her ribs. In order to
    
    confine Officer Bougher, Hines used both his hands and body to pin her body to the wall,
    
    causing pain and bruising to Officer Bougher’s right arm. The enhancements of each
    
    conviction are based on separate injuries and thus there is no violation of double
    
    jeopardy.
    
                                                 2.
    
                                                6
           Finally, Hines argues that his sentence of eight years for criminal confinement and
    
    three years for battery is inappropriate in light of the nature of the offense and his
    
    character. Article 7, section 4 of the Indiana Constitution grants our Supreme Court the
    
    power to review and revise criminal sentences. Pursuant to App. R. 7, the Supreme Court
    
    authorized this court to perform the same task. Cardwell v. State, 
    895 N.E.2d 1219
     (Ind.
    
    2008). Per App. R. 7(B), we may revise a sentence “if, after due consideration of the trial
    
    court’s decision, the Court finds that the sentence is inappropriate in light of the nature of
    
    the offense and the character of the offender.” Wilkes v. State, 
    917 N.E.2d 675
    , 693 (Ind.
    
    2009). Nevertheless, “we must and should exercise deference to a trial court’s sentencing
    
    decision, both because Rule 7(B) requires us to give ‘due consideration’ to that decision
    
    and because we understand and recognize the unique perspective a trial court brings to its
    
    sentencing decisions.” Stewart v. State, 
    866 N.E.2d 858
    , 866 (Ind. Ct. App. 2007).
    
           Whether we regard a sentence as inappropriate “turns on our sense of the
    
    culpability of the defendant, the severity of the crime, the damage done to others, and
    
    myriad other factors that come to light in a given case.” Cardwell v. State, 
    895 N.E.2d 1219
    , 1224 (Ind. 2008). Furthermore, “[t]he principal role of appellate review should be
    
    to attempt to leaven the outliers, and identify some guiding principles for trial courts and
    
    those charged with improvement of the sentencing statutes, but not to achieve a perceived
    
    ‘correct’ result in each case.” Id. at 1225. Accordingly, “the question under Appellate
    
    Rule 7(B) is not whether another sentence is more appropriate; rather, the question is
    
    whether the sentence imposed is inappropriate.” King v. State, 
    894 N.E.2d 265
    , 268 (Ind.
    
    Ct. App. 2008) (emphasis in original).
    
                                                  7
           Hines was convicted of a class D felony battery, for which the sentencing range is
    
    half a year to three years, with an advisory sentence of one and a-half years. See Ind.
    
    Code. Ann. § 35-50-2-6 (West, Westlaw current with all legislation of the Second
    
    Regular Session of the 118th General Assembly (2014) with effective dates through May
    
    1, 2014). Hines received a maximum three-year sentence for battery. In addition, Hines
    
    was convicted of a class C felony criminal confinement, for which the sentencing range is
    
    two to eight years, with an advisory sentence of four years. See I.C. § 35-50-2-7 (West,
    
    Westlaw current with all legislation of the Second Regular Session of the 118th General
    
    Assembly (2014) with effective dates through May 1, 2014). Hines was sentenced to
    
    concurrent, maximum terms of three years for battery and eight years for criminal
    
    confinement, for a total aggregate sentence of eight years.
    
           Considering the nature of the offense, we note that Hines, a six-foot, fully-grown
    
    male, attacked Officer Bougher, a five-foot female, while incarcerated at the Miami
    
    Correctional Facility. Without warning, he lunged at the officer, hitting her in the ribs,
    
    and then he pinned her against the wall with the weight of his whole body. As to the
    
    character of the offender, Hines argues that his abusive childhood and mental-health
    
    issues should be considered mitigating factors in his sentencing. Although we recognize
    
    Hines’s past of mental-health issues and self-reported history of physical and mental
    
    abuse as a child in the foster care system, we also note Hines’s previous criminal record
    
    includes a conviction for rape. The present offenses also demonstrate his violent nature.
    
    Moreover, he continues to reoffend while incarcerated and was on probation at the time
    
    of his offenses.
    
                                                 8
          The trial court concluded, “in weighing the two together I think that the prior
    
    criminal record and the type of offenses he’s committed outweigh any mitigating factor.”
    
    Transcript at 213. We agree with the trial court’s analysis. Hines’s sentence is not
    
    inappropriate.
    
          Judgment affirmed.
    
    MATHIAS, J., and PYLE, J., concur.
    
    
    
    
                                               9