Martize Sevion v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose Apr 09 2013, 8:48 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK SMALL GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARTIZE SEVION, )
)
Appellant-Defendant, )
)
vs. ) No. 18A04-1207-CR-384
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable Thomas A. Cannon, Judge
Cause No. 18C05-0908-FB-11
April 9, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Martize Sevion appeals his convictions for two counts of Class B felony criminal
confinement, two counts of Class C felony intimidation, and one count of Class D felony
pointing a firearm, as well as the finding that he is an habitual offender. We affirm in
part and reverse in part.
Issues
The issues before us are:
I. whether the trial court properly granted Sevion
permission to pursue this belated appeal;
II. whether the trial court properly refused to rule on a pro
se “Request for Treatment” that he filed or to sua
sponte order an assessment of competency;
III. whether his request for a early trial under Indiana
Criminal Rule 4(B) was violated;
IV. whether his multiple convictions for confinement,
intimidation, and pointing a firearm violate double
jeopardy protections;
V. whether there was sufficient evidence to support his
convictions;
VI. whether the trial court properly entered judgments of
conviction against him for two counts of Class B
felony confinement and two counts of Class C felony
intimidation; and
VII. whether he waived his right to have a jury decide
whether he is an habitual offender.
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Facts
In Sevion’s first appeal, we related the facts behind his convictions as follows:
In the summer of 2008, Bryan Carrier (Carrier) and
Angela Brotherton (Brotherton) were addicted to drugs,
including cocaine, methadone, and opiates. Brotherton had a
bad back and began taking medication for the pain; gradually,
both she and Carrier became drug users. They would usually
purchase drugs from Sevion, Mustafa Sevion (Mustafa), who
was Sevion’s brother, and Charles Bruce, a.k.a. Booboo.
When Brotherton got arrested for shoplifting, she agreed to
buy drugs from Mustafa as an undercover informant for the
police department. As a result of Brotherton’s undercover
work, law enforcement officers arrested Mustafa on
September 24, 2008.
The following day, September 25, 2008, Carrier and
Brotherton took their daily doses of methadone. At
approximately 8 p.m. that day, Carrier, Brotherton, and
Sevion got together at the Imperial Apartments on Mulberry
Street, in Muncie, Indiana. Sevion, who was on the phone,
met with Carrier, as Carrier drove up. Carrier could see
Booboo, Marcel Sevion (Marcel), another of Sevion’s
brothers, and James Crawford (Crawford) standing around a
makeshift campfire.
Sevion walked up to Carrier’s truck and told him to get
out of the car. Carrier and Sevion went in the alley, behind
one of the apartment buildings. Sevion finished his phone
call and told Carrier that he wanted to check him for a wire.
Carrier lifted up his shirt. Seeing no wire, Sevion walked
back to Carrier’s truck to fetch Brotherton. As Sevion
approached the truck, both Carrier and Brotherton noticed
Sevion take something off the top of a blue car. Sevion told
Brotherton, “[Carrier] wants you to come over here with us.”
Brotherton could see Carrier shake his head “no,” but
Brotherton nevertheless followed Sevion into the alley.
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When Sevion stopped walking, he told them that he
wanted to check them both for a wire and told them to take
off their clothes. Brotherton asked why, to which Sevion
replied “you know why.” As Carrier became upset at Sevion
forcing Brotherton to strip, Sevion showed them his semi-
automatic handgun, pulling back the slide so a bullet fell out.
Brotherton stripped down to her underpants and Carrier took
off all his clothes.
Sevion told Brotherton and Carrier to follow him.
Carrier demanded to know what Sevion was planning and
whether he was going to kill them. Sevion instructed them to
cooperate and to do as he ordered. Sevion led them out of the
alley, back to the blue car. Booboo, Marcel, and Crawford
gathered around them. Sevion ordered Carrier and Brotherton
to get into the trunk of the car. When Brotherton asked why,
Sevion told her that he was “going to take [her] out in the
country and kill [her].” When Carrier started to get into the
trunk, Brotherton took off running. At that point, Carrier also
started running toward a nearby field.
Terrified to be shot in the back, Brotherton ran into a
nearby apartment. Jerome Barnes (Barnes), the apartment’s
tenant, saw her run screaming into his apartment, clad only in
her underpants, while he sat outside eating popcorn. Noticing
Barnes’ cell phone on the coffee table, Brotherton grabbed it
and barricaded herself in the bathroom where she dialed 9–1–
1. Barnes followed her into his apartment, and Sevion
followed as well. As Brotherton was talking to the 9–1–1
operator, she could feel Sevion pushing against the bathroom
door. Sevion managed to open the door, grabbed Brotherton
by [her] hair and dragged her out, pointing a gun at her head.
Barnes remained in his apartment.
Carrier was chased by Marcel. When Carrier was
cornered against a fence, Marcel threatened to hit him and he
lifted his shirt as if to indicate to Carrier that he was carrying
a gun. Carrier was led back to the car where Booboo and
Crawford were waiting. Carrier climbed into the trunk and the
lid was closed. He managed to force the back seat down and
stuck his head out. Booboo saw him and slammed the seat
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back, catching Carrier’s head between the seat and the car
frame.
Outside Barnes’ apartment, Booboo grabbed
Brotherton’s hair from Sevion and yanked her around. From
the trunk, Carrier heard Brotherton screaming. He managed
to find the emergency release and popped the trunk open.
Carrier jumped out of the trunk and started running down
Mulberry Street. As the men’s attention focused on Carrier,
Brotherton fled again. Booboo ran towards Carrier, wielding
a beer bottle and hit Carrier directly above his right eye. As
Carrier ran on, he encountered Muncie Police Officer Larry
Ivy (Officer Ivy). Brotherton ran through the apartments
again and also ran into Officer Ivy.
Sevion v. State, No. 18A05-1102-CR-125 (Ind. Ct. App. Nov. 29, 2011), trans. denied
(“Sevion I”).
On October 10, 2008, the State charged Sevion with Class B felony armed
robbery, two counts of Class B felony criminal confinement, three counts of Class C
felony intimidation, and two counts of Class D felony pointing a firearm, and also alleged
that Sevion is an habitual offender. The State later dismissed the armed robbery charge.
The confinement charges alleged that Sevion confined Carrier and Brotherton “without
the other person’s consent, said act being committed while armed with a deadly weapon
contrary to the form of the statutes in such cases made and provided by I.C. 35-42-3-
3(a)(1) . . . .” App. pp. 34-35.1 The intimidation charges of which Sevion was convicted
alleged that he communicated a threat to Carrier and Brotherton “with the intent that
[they] engage in conduct against [their] will, to-wit: removing [their] clothing, said act
1
This refers to the appendix compiled in Sevion’s original appeal, which has been made a part of this
appeal as well. A separate appendix was compiled for this appeal, which we will designate as “Belated
App.”
5
being committed while drawing or using a deadly weapon, contrary to the form of the
statutes in such cases made and provided by I.C. 35-45-2-1(a)(1) . . . .” Id. at 38-39.
On October 24, 2008, at a time when it appears Sevion was unrepresented by
counsel, he filed a pro se motion for a speedy bench trial. On November 11, 2008, the
trial court appointed a public defender to represent Sevion. The trial court also scheduled
a bench trial for December 29, 2008. At a pretrial conference held on December 17,
2008, Sevion withdrew his request for a speedy trial, over the State’s objection, and the
trial court vacated the December 29 trial date.
On August 20, 2009, Sevion filed a pro se “Motion for Request for Treatment.”
Id. at 12. The trial court ordered the motion to be stricken and did not rule on it. The
motion itself was to be kept in the court’s file, although it is not before this court on
appeal. At a pretrial discussion held on November 23, 2010, the trial court discussed the
motion with Sevion’s attorney and indicated that “it was filed under 12-23-7-3 which is
treatment in lieu of prosecution” and that the statute could not apply to Sevion’s case. Tr.
p. 133. Sevion’s attorney agreed that the statute did not apply.
On November 30, 2010, the parties appeared for jury trial. However, Sevion
indicated before jury selection that he wanted to waive his right to a jury trial and have a
bench trial instead. Before accepting Sevion’s waiver of his right to a jury trial, the trial
court advised him in part as follows:
[T]here is also the issue that there is a notice seeking a
habitual offender count or alleging that you are a habitual
offender. That would be applicable only if you are convicted
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of Count 3 of the charging information the way that that’s
been charged. Uh, and there would be a separate hearing that
would follow the trial on that habitual offender count. Again,
before the jury could find you guilty of being a habitual
offender it would take a unanimous verdict of all twelve (12)
members of the jury okay. Now by waiving your right to a
jury trial, what you are indicating is that you are willing to
forgo twelve (12) members of the jury determining in this
case, whether the State has proved their case beyond a
reasonable doubt on each count and that matter would be tried
to me as the Judge . . . .
Id. at 148-49. After this and other advisements, Sevion affirmed that he was waiving his
right to a jury trial.
At the conclusion of the bench trial on December 1, 2012, the trial court found
Sevion guilty of two counts of Class B felony criminal confinement, two counts of Class
C felony intimidation, and one count of Class D felony pointing a firearm, and also found
that Sevion is an habitual offender; it found Sevion not guilty of one count of Class C
felony intimidation and one count of Class D felony pointing a firearm. At Sevion’s
sentencing hearing on December 28, 2012, he personally expressed his concern that he
could only be convicted of Class D felony confinement and Class A misdemeanor
intimidation, based upon the statutory cites used by the State in the charging information.
The trial court then sentenced Sevion to fifteen years for each confinement conviction,
with those sentences served consecutively and one of them being enhanced by twenty
years for the habitual offender finding, as well as concurrent sentences of six years for the
intimidation convictions and two years for the pointing a firearm conviction. At the
7
conclusion of the sentencing hearing Sevion stated that he wished to appeal but that he
did not want to be represented by counsel on appeal.
On December 29, 2012, Sevion filed a pro se “Motion to Correct Erroneous
Sentence.” App. p. 281. This motion reiterated Sevion’s complaint at the sentencing
hearing that he could only be convicted of Class D felony confinement and Class A
misdemeanor intimidation. On February 16, 2011, the trial court denied Sevion’s motion.
On February 18, 2011, Sevion filed a pro se notice of appeal. After experiencing
difficulty in filing defective materials with this court, on May 25, 2011, Sevion requested
that the trial court appoint him appellate counsel, and it did so.
Sevion’s brief raised precisely the issues that are raised in this appeal, with the
exception that it did not allege he had been improperly denied his right to a jury trial on
the habitual offender determination. On November 29, 2011, this court issued a
memorandum decision in which we held in part:
It is clear from [a motion to correct erroneous sentence’s]
very limited purpose that it cannot be used as a vehicle to
circumvent the statutory time to appeal a final decision, nor
does the motion toll the time to file a timely notice of appeal.
An appeal from the denial of a motion to correct erroneous
sentence is only an appeal from the trial court’s decision with
respect to the perceived erroneous sentence, and it cannot
incorporate an appeal on the underlying merits of the
conviction. Therefore, we conclude that Sevion’s appellate
claims addressing the merits of his conviction must be
dismissed due to Sevion’s untimely appeal.
Sevion I. With respect to the merits of the motion to correct erroneous sentence claim,
we held that it required examination of proceedings before and during trial, which is
8
beyond the scope of a motion to correct erroneous sentence. Id. Thus, we affirmed the
denial of the motion. Sevion filed a petition for transfer with the Indiana Supreme Court,
and it denied the petition on May 4, 2012.
On July 5, 2012, Sevion filed a pro se motion for permission to file a belated
appeal. On July 11, 2012, the trial court granted the motion without first conducting a
hearing on the matter. On July 25, 2012, Sevion, by counsel, filed a belated notice of
appeal, and the case is now before us accordingly.
Analysis
I. Belated Appeal
We first address the State’s cross-appeal argument that the trial court erred in
granting Sevion permission to pursue this belated appeal. Indiana Post-Conviction Rule
2(1)(a) provides:
An eligible defendant convicted after a trial or plea of guilty
may petition the trial court for permission to file a belated
notice of appeal of the conviction or sentence if;
(1) the defendant failed to file a timely notice of appeal;
(2) the failure to file a timely notice of appeal was not due
to the fault of the defendant; and
(3) the defendant has been diligent in requesting
permission to file a belated notice of appeal under this
rule.
A decision whether to grant permission to file a belated notice of appeal is within the
sound discretion of the trial court. Moshenek v. State, 868 N.E.2d 419, 422 (Ind. 2007).
9
A defendant must prove by a preponderance of the evidence that he or she was without
fault in the delayed filing and was diligent in pursuing permission to file a belated motion
to appeal. Id. at 422-23. Factors to consider in assessing a defendant’s diligence and
lack of fault include “‘the defendant’s level of awareness of his procedural remedy, age,
education, familiarity with the legal system, whether the defendant was informed of his
appellate rights, and whether he committed an act or omission which contributed to the
delay.’” Id. at 423 (quoting Land v. State, 640 N.E.2d 106, 108 (Ind. Ct. App. 1994),
trans. denied). A trial court’s ruling regarding permission to file a belated notice of
appeal will be affirmed unless it was based on an error of law or a clearly erroneous
factual determination. Id. at 423-24. When a trial court does not conduct a hearing on
the matter, however, we owe no deference to a trial court’s factual determinations. Id. at
424.
Here, the trial court did not conduct a hearing on Sevion’s belated appeal motion
and, therefore, we need not defer to any factual findings it made. Still, we see no reason
to disturb its decision granting Sevion permission to pursue a belated appeal. The trial
court noted in its order that Sevion was under “the mistaken belief” that he could not file
a notice of appeal “until after this Court ruled on his pending pro-se motion to correct
erroneous sentence, which this Court believes to be excusable neglect and should not be
considered the fault of the petitioner/defendant . . . .” Belated App. p. 44. We agree with
this assessment. In our decision in Sevion I, we held that a motion to correct erroneous
sentence does not toll the time for filing a notice of appeal, unlike a motion to correct
10
error under Indiana Trial Rule 59. We reached this conclusion after analyzing the
“limited purpose” of a motion to correct erroneous sentence, as outlined by our supreme
court in Robinson v. State, 805 N.E.2d 783 (Ind. 2004). However, there was no pre-
existing case law differentiating a motion to correct erroneous sentence from a motion to
correct error for purposes of tolling the time for filing a notice of appeal from a
conviction, and indeed there is still no published case so holding. Under the
circumstances, we decline to find Sevion at fault for not anticipating that a motion to
correct erroneous sentence was different than a motion to correct error for purposes of
tolling the time for initiating an appeal.
As for diligence, the State argues that Sevion “was sentenced on December 28,
2010, yet he would wait another year and a half before finally seeking to file a belated
appeal.” Appellee’s Br. p. 18. That argument is somewhat misleading, because Sevion
did file his motion to correct erroneous sentence on December 29, 2010, he filed his first
notice of appeal two days after denial of that motion, and he filed for permission to
pursue a belated appeal two months after our supreme court denied transfer in Sevion I.
Taken together, Sevion’s actions indicate that he has always attempted to act diligently in
protecting his appellate rights, even if he initially went about it in the wrong way. We
cannot say the trial court abused its discretion in granting Sevion permission to pursue
this belated appeal.
II. Competency
11
Sevion’s first argument is that the trial court should have sua sponte ordered him
to undergo a psychological examination to determine whether he was competent to stand
trial. This argument is combined with Sevion’s claim that the trial court erred in not
ruling upon his pro se “Motion for Request for Treatment,” which he essentially argues
should have alerted the trial court to the possibility that he was incompetent.
Regarding the “Motion for Request for Treatment,” this motion was filed while
Sevion was represented by counsel. A trial court is not required to respond to motions
and requests filed by a defendant who is represented by counsel. Underwood v. State,
722 N.E.2d 828, 832 (Ind. 2000). “To require the trial court to respond to both
Defendant and counsel would effectively create a hybrid representation to which
Defendant is not entitled.” Id.
Here, the trial court struck Sevion’s pro se filing, which was within its prerogative.
It additionally noted that Sevion’s motion requested drug and/or alcohol treatment in lieu
of prosecution pursuant to Indiana Code Section 12-23-7-3. Indiana Code Section 12-23-
7-1, however, states that treatment in lieu of prosecution may be ordered “if the
individual is eligible to make the request for treatment provided for in IC 12-23-6 . . . .”
As noted by the trial court, Sevion did not meet this requirement; Indiana Code Section
12-23-6-1(1) precludes treatment in lieu of prosecution if a defendant has been charged
with “a forcible felony or burglary classified as a Class A or Class B felony.” Sevion was
charged with two counts of Class B felony criminal confinement, which surely meets the
definition of a “forcible felony.” See I.C. § 35-31.5-2-138 (defining “forcible felony” as
12
one “that involves the use or threat of force against a human being, or in which there is
imminent danger of bodily injury to a human being”).
As for whether Sevion’s “Motion for Request for Treatment” should have
nonetheless triggered an investigation into his competency to stand trial, the right to a
competency hearing pursuant to Indiana Code Section 35-36-3-1 is not absolute.
Campbell v. State, 732 N.E.2d 197, 202 (Ind. Ct. App. 2000). “Such a hearing is
required only when a trial judge is confronted with evidence creating a reasonable or
bona fide doubt as to a defendant’s competency, which is defined as whether a defendant
currently possesses the ability to consult rationally with counsel and factually
comprehend the proceedings against him.” Id. Whether reasonable grounds exist to
order a competency evaluation is a decision that will be reversed only if the trial court has
abused its discretion. Id. A trial court abuses its discretion if its decision is clearly
against the logic and effect of the facts and circumstances before the court or if the court
has misinterpreted the law. Gibbs v. State, 952 N.E.2d 214, 219 (Ind. Ct. App. 2011),
trans. denied.
Aside from Sevion’s “Motion for Request for Treatment,” the only other evidence
he directs us to as possible evidence of incompetency are a letter from his mother to the
trial court in which she said Sevion and his brother Marcel “are not well in there [sic]
minds,” App. p. 100, a statement by Sevion during one pre-trial hearing that he had “been
experiencing a lot of mental difficulties,” Tr. p. 68, and a statement during a later hearing
that he had expected trial counsel to file a motion to have his mental competency
13
evaluated but counsel had not done so. We cannot say this evidence required the trial
court to sua sponte order a competency evaluation. As for the “Motion for Request for
Treatment,” Sevion makes no argument now that he should have been evaluated as a
potential candidate for drug and/or alcohol treatment in lieu of prosecution—he only
argues competency to stand trial, which is a different issue entirely. And as a general
matter, a trial court’s observations of a defendant in court are an adequate basis for
determining whether a competency hearing is necessary, and we will not lightly disturb
such a determination. Campbell, 732 N.E.2d at 202. Our review of Sevion’s statements
to the trial court during hearings and of his various pro se filings reveal a frequent
frustration with his trial counsel and the justice system, but they give no indication of
incompetency. All of his statements and filings are entirely coherent, though often not
legally sound. They reflect a sound factual understanding of the proceedings and the
ability to consult with counsel, even if Sevion frequently disagreed with counsel. The
trial court likewise was not required to order a competency evaluation based on Sevion’s
mother’s note; a trial court does not have to order a competency hearing based upon a
layperson’s unsupported belief that a defendant may be incompetent. See Campbell, 732
N.E.2d at 203. In viewing the entirety of the record, we cannot say the trial court abused
its discretion by not sua sponte ordering an evaluation of Sevion’s competency to stand
trial.
III. Early Trial Request
14
Next, Sevion argues that his right to an early trial was violated. On October 24,
2008, before he was appointed counsel, Sevion filed a pro se motion for an early trial
within seventy days, as permitted by Indiana Criminal Rule 4(B). In accordance with this
request, the trial court scheduled a trial for December 29, 2008. After Sevion was
appointed counsel, Sevion withdrew his request for a speedy trial at a pretrial conference
held on December 17, 2008, over the State’s objection, and the trial court vacated the
December 29 trial date.
A motion for an early trial under Criminal Rule 4(B) may be waived by a movant
who does not maintain a position reasonably consistent with that request. Fletcher v.
State, 959 N.E.2d 922, 925 (Ind. Ct. App. 2012), trans. denied. Sevion unequivocally
withdrew his request for an early trial less than two months after he made it. He seems to
be arguing that he was competent enough when he requested the early trial for that
request to be honored, but he was not competent enough to withdraw that request. We
already have resolved, however, that the trial court did not abuse its discretion in refusing
to order a competency evaluation for Sevion. Sevion makes no other argument regarding
the validity of his waiver of his right to a seventy-day early trial. Thus, we conclude he
waived that right, and the trial court did not improperly refuse his Rule 4(B) motion.
IV. Double Jeopardy
We now assess whether any of Sevion’s convictions must be vacated due to
double jeopardy concerns. Sevion bases his argument primarily upon Article 1, Section
14 of the Indiana Constitution. Under that provision, two offenses are the same in
15
violation of the Indiana Double Jeopardy Clause 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.’” Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002) (quoting
Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). A defendant claiming a violation of
the actual evidence test must demonstrate a reasonable possibility that the evidentiary
facts used by a fact-finder to establish the essential elements of one offense may also
have been used to establish all of the essential elements of a second offense. Id. at 832-
33. There is no double jeopardy violation if the evidence establishing the essential
elements of one offense also establish one or even several, but not all, of the essential
elements of a second offense. Id. at 833.2
We first note the general proposition that where a defendant harms or threatens
harm to distinct victims, double jeopardy is not violated by multiple convictions. Bunch
v. State, 937 N.E.2d 839, 847 (Ind. Ct. App. 2010), trans. denied. Thus, Sevion could be
convicted of one count each of confinement and of intimidation based on the multiple
victims harmed by Sevion’s conduct, i.e. Carrier and Brotherton.
We further observe that in closing arguments, the prosecutor unequivocally and
vigorously argued that there was one continuous period of confinement in this case
lasting ten to fifteen minutes, beginning with when Carrier and Brotherton were first
2
Sevion also cites Indiana Code Section 35-50-1-2(b) in support of his double jeopardy argument. That
statutory provision, however, only applies to limit sentencing in certain cases involving a single “episode
of criminal conduct.” It has no application in considering whether multiple convictions violate double
jeopardy. Sevion makes no argument that his sentence exceeds the bounds of Section 35-50-1-2(b).
16
approached by Sevion and ending only when they encountered Officer Ivy after fleeing
from the scene. Argument of counsel is one crucial factor to consider when analyzing
whether there is a reasonable possibility that a fact-finder relied on the same evidentiary
facts to establish the commission of two separate offenses. Spivey, 761 N.E.2d at 832.
Sevion’s act of intimidation towards Carrier and Sevion—forcing them to remove
their clothing after he had displayed a firearm—did occur during this same time period in
which the State argued that confinement was occurring. However, the evidence related to
that threat—specifically the demand that Carrier and Sevion remove their clothes—went
beyond what was necessary to prove confinement. As charged here, confinement occurs
when a person knowingly or intentionally confines another person without his or her
consent, and intimidation as charged requires proof that a person communicated a threat
to another person with the intent that the other person engage in conduct against his or
her will. See I.C. §§ 35-42-3-3(a)(1), 35-45-2-1(a)(1). In other words, the same evidence
was not used to establish all of the essential elements of both confinement and
intimidation.
We have more difficulty with respect to the conviction for pointing a firearm.
Sevion allegedly pointed or displayed a firearm at several points during this incident:
when demanding that Carrier and Brotherton remove their clothing, when dragging
Brotherton out of the apartment she had run into, and after Brotherton had been brought
back to the car and while Carrier was in the trunk. The evidence regarding this offense is
inextricably intertwined with both of the intimidation convictions, as well as the
17
confinement conviction with respect to Brotherton. At closing argument the State made
no attempt to distinguish an act of pointing a firearm that was separate from the acts of
intimidation or confinement, and it appears Sevion accomplished the intimidation of both
Carrier and Brotherton and the confinement of Carrier through use of the firearm. Under
the circumstances, and especially given the manner in which the State argued this case to
the trial court as fact-finder, there is a reasonable possibility the trial court relied on the
same evidentiary facts to find Sevion committed pointing a firearm as well as the
confinement of Brotherton, or the intimidation of both Carrier and Brotherton. As such,
we direct that Sevion’s conviction for pointing a firearm be vacated because of a double
jeopardy violation.
V. Sufficiency of the Evidence
Sevion also contends there is insufficient evidence to support his confinement and
intimidation convictions.3 When reviewing the sufficiency of the evidence to support a
conviction, we examine only the probative evidence and reasonable inferences that
support the judgment. Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012). We neither assess
witness credibility nor do we reweigh the evidence; those roles are reserved for the finder
of fact, not appellate courts. Id. We will affirm a conviction unless no reasonable fact-
finder could find the elements of the crime proven beyond a reasonable doubt. Id.
3
Sevion also argues there is insufficient evidence to support his conviction for pointing a firearm as a
Class D felony. Given our vacation of that conviction for double jeopardy reasons, we need not address
that argument.
18
Sevion first argues there is insufficient evidence to support his conviction for
Carrier’s confinement. Sevion focuses primarily upon Carrier’s confinement in the trunk
of the car, noting that act was carried out by Marcel, Booboo, and Crawford while he was
chasing Brotherton. Even if we were to assume without deciding that there was no other
sufficient evidence of Carrier’s confinement aside from his placement in the trunk, there
is ample evidence to support the conclusion that Sevion was an accomplice in that act.
The responsibility of a principal and an accomplice is identical, and one may be charged
as a principal but convicted on proof that he or she aided another in the commission of a
crime. Taylor v. State, 840 N.E.2d 324, 338 (Ind. 2006). Factors to consider in
determining whether there is sufficient evidence of accomplice liability include: (1)
presence at the scene of the crime; (2) companionship with another at the scene; (3)
failure to oppose the crime; and (4) the defendant’s course of conduct before, during, and
after occurrence of the crime. Norvell v. State, 960 N.E.2d 165, 168 (Ind. Ct. App. 2011)
(quoting Bruno v. State, 774 N.E.2d 880, 882 (Ind. 2002)), trans. denied.
Here, Sevion initially ordered both Carrier and Brotherton to get into the trunk of
the car. When neither complied with that order and tried to run away, Sevion chased
down Brotherton while Marcel chased down Carrier and brought him back to the car.
After getting into the trunk, Carrier tried to escape through the back seat but was thwarted
by Booboo. After Sevion captured Brotherton and brought her back to the car, he made
no effort to free Carrier from the trunk, with Carrier freeing himself and escaping after he
found the emergency trunk release handle. It is clear that Sevion was fully involved as an
19
accomplice in Carrier’s confinement in the trunk. He gave the initial order that Carrier be
confined in the trunk, which his companions Marcel and Booboo saw was carried out
after Brotherton escaped. There is sufficient evidence to support Sevion’s conviction for
confining Carrier, even if we limit ourselves to looking only at his confinement in the
trunk.
Sevion also argues there is insufficient evidence to support his conviction for
confining Brotherton. He points out that the State specifically charged him with violating
subsection (a)(1) of Indiana Code Section 35-42-3-3, which defines criminal confinement
as knowingly or intentionally confining another person without the other person’s
consent, and not subsection (a)(2), which alternatively defines criminal confinement as
removing another person from one place to another by fraud, enticement, force, or threat
of force. Our supreme court has held that the State may not charge a defendant under
subsection (a)(1) of the confinement statute but obtain a conviction based solely on proof
of “removal” confinement under subsection (a)(2), or vice versa, because the two
subsections state two different criminal offenses. Kelly v. State, 535 N.E.2d 140, 141-42
(Ind. 1989) (citing Addis v. State, 404 N.E.2d 59, 60-61 (Ind. Ct. App. 1980)); but see id.
at 143-44 (Pivarnik & Givan, JJ., dissenting) (disagreeing with majority that confinement
statute describes two different criminal acts and that “it would be more accurate to say
the statute describes one criminal act that can be performed in two different manners.”).
Thus, here for example, Sevion’s forcible removal of Brotherton from Barnes’s
apartment would not be sufficient by itself to support his confinement conviction, given
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the manner in which the State charged that crime. Instead, there must be evidence to
support a finding that Sevion committed confinement of Brotherton under subsection
(a)(1) at some point. “Confine” is statutorily defined as “to substantially interfere with
the liberty of a person.” I.C. § 35-42-3-1. Although it is somewhat difficult to pinpoint
precisely when Brotherton’s confinement began, there is certainly sufficient evidence that
her liberty was substantially interfered with by Sevion. Brotherton testified that she did
not feel free to leave the scene from the time she arrived at the Imperial Apartments
complex until she ran away and found Officer Ivy. During that time, Sevion repeatedly
displayed a weapon and, at times, ordered her to stay in a certain location, and other
times forced her to move to a different location. Towards the end of the ordeal,
Brotherton sat on the ground near the car while Sevion pointed his gun at her. That, in
itself, was sufficient to establish confinement under (a)(1) and to sustain Sevion’s
conviction for confining Brotherton.
Finally, Sevion claims there is insufficient evidence to support both of his
intimidation convictions. As charged, intimidation is the communication of a threat to
another person with the intent that the other person engage in conduct against the other
person’s will. I.C. § 35-45-2-1(a)(1). “Threat” is defined as including “an expression, by
words or action, of an intention to . . . unlawfully injure the person threatened or another
person,” or to “unlawfully subject a person to physical confinement or restrain,” or to
“commit a crime . . . .” I.C. § 35-45-2-1(c)(1), (2), & (3). He specifically contends there
is insufficient evidence that he threatened either Carrier or Brotherton before they took
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off their clothes. He argues that this case is similar to Gaddis v. State, 680 N.E.2d 860
(Ind. Ct. App. 1997). In that case, the driver of a vehicle displayed (but did not point) a
handgun to the driver of another vehicle with whom he was having a traffic dispute. We
reversed the defendant’s intimidation conviction, stating that “under the intimidation
statute the mere display of a handgun does not express an intention to unlawfully injure a
person or his property.” Gaddis, 680 N.E.2d at 862.
The State did not seek transfer in Gaddis, and our supreme court subsequently
seemed to question the result of that case in Johnson v. State, 743 N.E.2d 755 (Ind.
2001). It agreed with the general proposition that merely displaying a handgun, standing
alone, does not constitute a “threat” within the meaning of the intimidation statute.
Johnson, 743 N.E.2d at 756. However, it went on to observe “that introducing a handgun
into an emotionally charged environment can easily lead to a physical confrontation with
tragic consequences.” Id. Furthermore, the court held that when “the record shows the
existence of words or conduct that are reasonably likely to incite confrontation, coupled
with the display of a firearm, we are hard pressed to say that such facts are insufficient to
prove that a threat has been communicated within the meaning of the intimidation
statute.” Id. at 756-57.
Here, Carrier and Brotherton initially refused Sevion’s demand that they disrobe in
the alley so that he could discern whether they were wearing an undercover wire. After
that initial refusal, Sevion displayed his gun to Carrier and Brotherton, cocked it, and
waved it back and forth between them. He did not verbally threaten Carrier and
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Brotherton with physical harm, but did insist that they “cooperate and do as he said.” Tr.
p. 184. We believe this is precisely just a scenario envisioned by our supreme court in
Johnson—an emotionally charged situation that was reasonably likely to incite
confrontation, into which Sevion displayed, cocked, and directed a firearm towards the
victims. Coupled with Sevion’s insistence with that Carrier and Brotherton cooperate
with his demand to disrobe, it is difficult to perceive Sevion’s actions with the gun as
anything other than a threat to cause them physical harm, confine them, or commit a
crime if they did not cooperate. Sevion’s actions constituted much more than a “mere
display” of a firearm in a vacuum. There is sufficient evidence to support Sevion’s
intimidation convictions.
VI. Enhanced Convictions for Confinement and Intimidation
Next, we address Sevion’s claim that he could not be convicted of Class B felony
confinement and Class C felony intimidation, based on the wording of the charging
information. Sevion claims that, because of that wording, he can only be convicted of
Class D felony confinement and Class A misdemeanor intimidation.
The charging information for confinement read in part with respect to both Carrier
and Brotherton that Sevion “did, knowingly confine another person . . . without the other
person’s consent, said act being committed while armed with a deadly weapon contrary
to the form of the statutes in such cases made and provided by I.C. 35-42-3-3(a)(1) . . . .”
App. pp. 34-35. The charging information for intimidation read in part that Sevion:
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did, knowingly communicate a threat to another person . . .
with the intent that Brotherton [and Carrier] engage in
conduct against [their] will, to wit; removing [their] clothing,
said act being committed while drawing or using a deadly
weapon, contrary to the form of the statutes in such cases
made and provided by I.C. 35-45-2-1(a)(1) . . . .
Id. at 38-39.
Sevion observes that the statutory cite in the confinement charge, I.C. § 35-42-3-
3(a)(1), contains the “base” offense definition of confinement, which is a Class D felony.
The Class B felony confinement enhancement for being armed with a deadly weapon is
found in I.C. § 35-42-3-3(b)(2)(A). Similarly, the statutory cite in the intimidation
charge, I.C. § 35-45-2-1(a)(1), contains the “base” offense definition of intimidation,
which is a Class A misdemeanor. The Class C felony intimidation enhancement for
drawing or using a deadly weapon is found in I.C. § 35-45-2-1(b)(2). Sevion argues that
because of the specific statutory cites used in the charging information, he can only be
convicted of the “base” offenses of confinement and intimidation.
Indiana Code Section 35-34-1-2 governs the drafting of charging informations and
indictments. Subsection (a)(3) of the statute provides that an information:
shall be in writing and allege the commission of an offense by
. . . citing the statutory provision alleged to have been
violated, except that any failure to include such a citation or
any error in such a citation does not constitute grounds for
reversal of a conviction where the defendant was not
otherwise misled as to the nature of the charges against the
defendant . . . .
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We also note the general proposition that any variance between a charging document and
the proof at trial is not fatal if the defendant was not misled in the preparation and
maintenance of his or her defense and was not prejudiced. See Daniels v. State, 957
N.E.2d 1025, 1030 (Ind. Ct. App. 2011).
Here, there is no indication that the citations listed in the charging information
somehow prejudiced Sevion or misled him into believing the State would not attempt to
convict him of Class B felony confinement or Class C felony intimidation. The
information plainly alleged that Sevion had committed confinement while armed with a
deadly weapon, as required to elevate that offense to a Class B felony, and that he had
committed intimidation while drawing or using a deadly weapon, as required to elevate
that offense to a Class C felony. The information also listed the alleged offenses as Class
B and C felonies, respectively. Even if the information did not list the specific citations
for Class B felony confinement and Class C felony intimidation, in the absence of any
prejudice to Sevion that is not a basis for reversal of his convictions or their reduction to
a lesser class of offense.
VII. Jury Trial Waiver
The final issue we address is whether Sevion properly waived his right to have a
jury determine whether he is an habitual offender. The right to have a jury determine
habitual offender status is based in statute. See I.C. § 35-50-2-8(f). However, both
statutory and constitutional safeguards apply to waiver of a jury trial for an habitual
offender finding. O’Connor v. State, 796 N.E.2d 1230, 1233 (Ind. Ct. App. 2003). To
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constitute a valid waiver of the right to a jury trial, the waiver must be voluntarily,
knowingly, and intelligently made with sufficient awareness of the relevant
circumstances surrounding the waiver and its consequences. Id. The defendant must
personally waive the right to jury trial in a manner that is apparent from the court’s
record, whether in the form of a written waiver of a colloquy in open court. Id. at 1234.
In O’Connor, we held that a jury trial waiver was ineffective with respect to a
habitual offender determination where the State had not yet filed an habitual offender
allegation at the time the defendant made the waiver. Id. at 1235. Here, by contrast, the
State had filed an habitual offender allegation against Sevion prior to the time he waived
his right to a jury trial. Moreover, as outlined earlier, the trial court engaged in an
explicit colloquy with Sevion regarding waiver of that right, including advising Sevion
that he had a right to have a jury determine his habitual offender status. It is also clear
from the entire context of the colloquy that Sevion was well-advised that by waiving his
right to a jury trial, he also was waiving his right to have a jury make the habitual
offender determination. We conclude that Sevion voluntarily, knowingly, and
intelligently waived his right to have a jury make the habitual offender determination.
Conclusion
We cannot say the trial court abused its discretion in permitting Sevion to pursue
this belated appeal. However, aside from reversing his conviction for Class D felony
pointing a firearm based upon double jeopardy considerations, we affirm his convictions
and sentence, including the habitual offender enhancement, in all respects.
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Affirmed in part and reversed in part.
BAKER, J., and RILEY, J., concur.
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