Redman v. State

Citation743 N.E.2d 263
Decision Date09 March 2001
Docket NumberNo. 28S00-9909-CR-466.,28S00-9909-CR-466.
PartiesJohn REDMAN, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtSupreme Court of Indiana

Susan K. Carpenter, Public Defender of Indiana, Gregory L. Lewis, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

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 Constitution6 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...

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