Hardley v. State
| Decision Date | 26 September 2008 |
| Docket Number | No. 49A05-0801-CR-29.,49A05-0801-CR-29. |
| Citation | 893 N.E.2d 1140 |
| Parties | Samuel HARDLEY, Appellant/Defendant, v. STATE of Indiana, Appellee/Plaintiff. |
| Court | Indiana Appellate Court |
Kathy Bradley, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant/Defendant Samuel Hardley appeals from his convictions of and sentences imposed for Class D felony Criminal Confinement1 and Class A misdemeanor Battery.2 Hardley contends that the State failed to produce sufficient evidence to sustain his conviction for criminal confinement and that that conviction and his battery conviction violate prohibitions against double jeopardy. The State cross-appeals, contending that the trial court erred in ordering sentences Hardley received in two different cause numbers to be served concurrently. We affirm in part, reverse in part, and remand with instructions.
On August 24, 2006, Hardley stole approximately $528-worth of alcoholic beverages, steaks, and clothing from a Meijer's store in Indianapolis. On August 25, 2006, the State charged Harley with theft in cause number 49F08-0608-FD-159522 ("Cause 159522"), and the trial court released him on his own recognizance.
At approximately 2:00 to 3:00 a.m. on September 13, 2006, while Hardley was still released on his own recognizance in Cause 159522, Ethel Richmond let him into her Indianapolis apartment. When Richmond awoke at 6:00 a.m. to prepare to go to work, Hardley was still asleep in a recliner. When Richmond, who was out of cigarettes, apparently took one of Hardley's, Hardley accused her of stealing from his backpack. Richmond then told Hardley and Norma Bailey, who was also staying in her apartment, that they had to leave because she was going to work.
Hardley told Richmond that he was not going anywhere and, "You stole something out of my backpack, bitch." Tr. p. 24. Hardley slapped Richmond, who fell onto a mattress. At that point, Hardley began to beat Richmond and restrained her such she could not stand up. While he had Richmond restrained, Hardley beat and kicked her in the chest and stomach. Richmond nonetheless managed to reach a telephone and, although she was unable to speak, she dialed 911 such that authorities were apparently able to hear the altercation. Hardley ran off when Bailey told him that police were on their way but was soon apprehended. As a result of the attack, Richmond suffered a swollen lip some broken fingernails, and a bruise on her arm.
On September 14, 2006, in cause number 49F18-0609-FD-173415 ("Cause 173415"), the State charged Hardley with Class D felony criminal confinement, Class D felony intimidation, and Class A misdemeanor battery, in a charging information that provided, in relevant part, as follows:
COUNT I
Samuel Hardley, on or about September 13, 2006, did knowingly confine Ethel Richmond, without the consent of Ethel Richmond, by holding Ethel Richmond down;
. . . .
COUNT III
Samuel Hardley, on or about September 13, 2006, did knowingly touch Ethel Richmond in a rude, insolent, or angry manner, that is: struck Ethel Richmond with hands and/or fists, which resulted in bodily injury, that is: pain, redness, swelling, and/or cuts, to Ethel Richmond[.]
Following a bench trial on May 14, 2007, the trial court found Hardley guilty of criminal confinement and battery. Also on May 14, 2007, in Cause 159522, the trial court found Hardley guilty of Class D felony theft3. The trial court sentenced Hardley to one-and-one-half years of incarceration for theft, and, in Cause 173415, the trial court sentenced him to two years for criminal confinement and one year for battery. Although the State had requested that the sentences from the two cause numbers be served consecutively, the trial court ordered that all three sentences were to be served concurrently.
Hardley contends that the State failed to establish a substantial enough inference with Richmond's liberty to sustain a criminal confinement conviction and that her testimony regarding the incident is incredibly dubious. In order to convict Hardley of Class D felony criminal confinement, the State was required to establish that he knowingly or intentionally confined Richmond without her consent. Ind. Code § 35-42-3-3(a)(1). According to statute, confinement requires a substantial interference with the liberty of a person. Ind.Code § 35-42-3-1 (2005).
Our standard of review for challenges to the sufficiency of the evidence supporting a criminal conviction is well-settled:
In reviewing a sufficiency of the evidence claim, the Court neither reweighs the evidence nor assesses the credibility of the witnesses. We look to the evidence most favorable to the [judgment] and reasonable inferences drawn therefrom. We will affirm the conviction if there is probative evidence from which a reasonable [trier of fact] could have found Defendant guilty beyond a reasonable doubt.
Vitek v. State, 750 N.E.2d 346, 352 (Ind. 2001) (citations omitted).
We may, however, apply the `incredible dubiosity' rule to impinge upon a trier of fact's function to judge the credibility of a witness. Love v. State, 761 N.E.2d 806, 810 (Ind.2002).
If a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant's conviction may be reversed. This is appropriate only where the court has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Application of this rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.
Love, 761 N.E.2d at 810 (citations omitted).
Hardley contends that he did not substantially interfere with Richmond's liberty because she was able to reach the telephone and dial 911. Richmond, however, testified that Hardley "had [her] down with [her] arms up[,]" that she could not move or "get up[,]" and that "he had [her] pinned down." Tr. pp. 24-26. Richmond testified that the telephone was "right there beside the mattress" and that she was able to knock it off the hook and dial 911. In our view, the record indicates that Richmond was able to reach the telephone and dial 911 despite Hardley's physical confinement of her thanks primarily to the fortuitous location of the device and then only with difficulty. Even after reaching the telephone, Richmond was unable to speak to anyone on the other end of the line. We are unaware of any authority holding that complete incapacitation is required in order to establish a substantial interference with liberty, and decline impose such a requirement today. We do not believe that Richmond's ability to reach the telephone indicates that her liberty was not substantially impaired.
Hardley also contends that Richmond's testimony is incredibly dubious in that she testified that he held her arms but that she was able to dial the telephone and that she testified that he had been kneeling but also managed to kick her. Hardley's argument assumes, however, that the evidence establishes that he held her arms and kneeled throughout the incident. We do not, however, read Richmond's testimony that way. In our view, the evidence establishes a somewhat fluid struggle, with Hardley standing or kneeling at different times and restraining Richmond in, perhaps, various ways, one of which was holding her arms. Hardley's argument in this regard is merely an invitation to reweigh the evidence, one that we decline.
In Richardson v. State, 717 N.E.2d 32 (Ind.1999), the Indiana Supreme Court held "that two or more offenses are the `same offense' in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to ... the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense." Id. at 49-50. The Richardson court stated the actual evidence test as follows:
To show that two challenged offenses constitute the "same offense" in a claim of double jeopardy, a 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.
Id. at 53. The Indiana Supreme Court has also explained that, when applying the actual evidence test, the question
is not merely whether the evidentiary facts used to establish one of the essential elements of one offense may also have been used to establish one of the essential elements of a second challenged offense. In other words, under the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense.
Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002). In determining what evidence the trier of fact used to establish the essential elements of an offense, "we consider the evidence, charging information, final jury instructions ... and arguments of counsel." Rutherford v. State, 866 N.E.2d 867, 871 (Ind.Ct.App.2007).
Here, we do not believe there is a reasonable possibility that the trial court used the same actual evidence to find that Hardley committed battery and criminal confinement. In reaching this conclusion, we consider both the charging information and evidence presented.4 As charged, the offenses do not share any common essential elements, much less all. For the battery charge, the State specifically alleged that striking...
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Treadway v. State Of Ind.
... ... of Appellant at 27. These claims are waived. Treadway did not object to the trial court's admonishment, and he made no objection to the State's closing argument. Failure to object at trial waives the issue for review unless fundamental error occurred ... Hardley v. State, 893 N.E.2d 1140, 1145 (Ind.Ct.App.2008), ... trans. granted, aff'd, 905 N.E.2d 399 (Ind.2009) (citing ... Groves v. State, 823 N.E.2d 1229, 1232 (Ind.Ct.App.2005)). Here Treadway makes no claim of fundamental error, and we find none to have occurred. IV ... Out of Court ... ...
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