Addis v. State, No. 3-1079A277

• Docket Nº: No. 3-1079A277
• Citation: 404 N.E.2d 59
• Case Date: May 15, 1980
• Court: Court of Appeals of Indiana

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404 N.E.2d 59 Joretta ADDIS, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee. No. 3-1079A277. Court of Appeals of Indiana, Fourth District. May 15, 1980.

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Howard S. Grimm, Jr., Grimm & Grimm, Fort Wayne, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Wesley Wilson, Gordon R. Medlicott, Deputy Attys. Gen., Indianapolis, for plaintiff-appellee.

CHIPMAN, Judge.

Joretta Addis brings this appeal from her conviction for criminal confinement, in violation of Ind.Code 35-42-3-3, contending the evidence was insufficient to support her conviction due to the State's failure (a) to prove each element of the offense beyond a reasonable doubt and (b) to present evidence of the commission of an offense subject to the criminal jurisdiction of Indiana. Mrs. Addis also alleges she was prejudiced and denied a fair trial by the admission of certain evidence.

Our review discloses reversible error occurred because there was a failure of proof upon the averments of the charging Information. While the evidence presented would have been sufficient to support a conviction under IC 35-42-3-3(a)(2), it is insufficient to sustain a conviction for violating IC 35-42-3-3(a)(1). The appellant was charged solely with nonconsensual confinement, an act which is contrary to IC 35-42-3-3(a)(1); she was never formally charged with committing the acts proscribed by section two of the statute.

Since it would be fundamental error to convict Joretta Addis of an offense with which she was never charged, and the evidence was insufficient to convict her of the act of criminal confinement as charged in the Information, we feel constrained to reverse Mrs. Addis' conviction.

Judgment reversed.

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FACTS

This action for criminal confinement arose because of Joretta Addis' failure to return her two children to the custody of their natural father when their visitation period with Mrs. Addis expired.

The record discloses when Mrs. Addis' prior marriage to Louis Rowland was dissolved in April 1975, Mr. Rowland was granted custody of the parties' two minor children, and appellant was afforded visitation privileges. Later, when Mrs. Addis moved from Fort Wayne, Indiana, to Florida the decree was amended to provide that she would have a twenty-eight day visitation period with the children each summer at her Florida residence. This visitation was to end the Sunday prior to Labor Day.

On August 7, 1978, Joretta Addis picked the children up for their summer visitation, and the three flew to Florida. Pursuant to the court order, the children should have returned to Fort Wayne September 3, 1978; this, however, did not occur. Instead, Mrs. Addis left Florida with the children, moving first to South Carolina and then to Ohio. The two children were not reunited with their father until October 27, 1978, when Mr. Rowland located them in Oregon, Ohio.

DECISION

At the time the offense was allegedly committed, the criminal confinement statute, IC 35-42-3-3, provided:

"A person who knowingly or intentionally:

(1) Confines another person without his consent; or

(2) Removes another person, by fraud, enticement, force, or threat of force, from one place to another;

commits criminal confinement, a class D felony. . . . "

It is evident this statute, framed in the disjunctive, embraces two distinct types of criminal confinement by encompassing both the concept of restraint in place and removal. West's AIC 35-42-3-3 note B. Small (1978); see also Coates v. State, (1967) 249 Ind. 357, 229 N.E.2d 640.

Under section one of the statute, the act of nonconsensual confinement is prohibited, irrespective of any intent to remove the individual to another location; thus, the elements of this first type of confinement would be:

(1) knowingly or intentionally,

(2) confining another person,

(3) without their consent.

But lack of consent is not an element of confinement under section two. Kerr, Survey of Recent Developments in Indiana Law, I. Foreword: Indiana's Bicentennial Criminal Code, 10 Ind.L.Rev. 1, 19 (1976). Instead, it would be necessary to show the accused:

(1) knowingly or intentionally,

(2) removed another person from one place to another,

(3) by fraud, or enticement, or force, or threat of force.

Clearly different acts and elements are required to be proven in each section, and the defensive posture would not be the same under the respective sections since the prosecution would necessarily proceed under different theories and proof. It follows that evidence of a violation of one of the two sections of the criminal confinement statute will not be sufficient to show a violation of the other section.

In view of the dissimilarity between the elements of proof under IC 35-42-3-3(a)(1) and (2), we believe the two sections present two separate crimes. This is consistent with cases wherein our Supreme Court reviewed other criminal statutes and held a single statutory section could, in fact, provide multiple offenses. Sanford v. State, (1971) 255 Ind. 542, 265 N.E.2d 701 (Although set forth within the same statute, forgery and uttering a forged instrument are separate and distinct crimes.); Lawrence v. State, (1968) 250 Ind. 161, 235 N.E.2d 198; Coates v. State, (1967) 249 Ind. 357, 229 N.E.2d 640 (Subsections of theft code relating to theft by the defendant and theft by obtaining control over properties stolen by another present two separate crimes.); Rogers v. State, (1942) 220 Ind.

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443, 44 N.E.2d 343 (The giving of a check to obtain property and the giving of a check in payment of an obligation are separate and distinct offenses.); see also Carson v. State, (1979) Ind.App., 384 N.E.2d 620 (The offenses of abuse and cruelty to a child require completely different acts and...