McCullough v. State
| Decision Date | 30 June 2008 |
| Docket Number | No. 49A02-0711-CR-931.,49A02-0711-CR-931. |
| Citation | 888 N.E.2d 1272 |
| Parties | Steven McCULLOUGH, Appellant-Defendant/Cross-Appellee, v. STATE of Indiana, Appellee-Plaintiff/Cross-Appellant. |
| Court | Indiana Appellate Court |
Steven J. Halbert, Carmel, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Steven McCullough appeals his convictions for class C felony criminal confinement, class D felony criminal confinement, and class A misdemeanor battery, as well as a habitual offender finding, on sufficiency and double jeopardy grounds. In a matter of first impression, the State brings a cross-appeal asserting that the trial court abused its discretion in balancing aggravating and mitigating factors in imposing McCullough's sentence and that the sentences for the class C felony and habitual offender counts are inappropriately lenient in light of the nature of the offense and McCullough's character. We hold that McCullough's convictions are supported by sufficient evidence but vacate the class D felony confinement conviction on double jeopardy grounds. We further hold that the State may challenge a defendant's sentence on cross-appeal for an abuse of discretion or inappropriateness, but only if the defendant appeals his sentence in his appellant's brief. Because McCullough did not appeal his sentence, we do not reach the merits of the State's cross-appeal.
McCullough raises the following issues:
I. Whether sufficient evidence supports his convictions; and
II. Whether his confinement convictions violate double jeopardy.
On cross-appeal, the State raises the following issue:
III. Whether the trial court abused its discretion in sentencing McCullough and whether his sentence for class C felony confinement is inappropriately lenient in light of the nature of the offense and his character.
On June 3, 2007, three days after he was released to parole, McCullough insisted that his friend, Carol McGuire, leave her home and drive with him to his mother's house. The two left in McGuire's car, with McCullough driving. Instead of going to his mother's house, McCullough showed McGuire a garage from which he was considering starting a car detailing business. During the drive, the two began arguing. McCullough was screaming and angry, and McGuire was scared. Even though the car was moving, McGuire unbuckled her seatbelt and tried to get out of the car six or seven times. Each time, McCullough grabbed her left arm to prevent her from jumping out of the car. When they stopped at a stop sign or a stoplight, McCullough put his arm across McGuire's chest. McGuire asked McCullough to let her out of the car, but he continued to drive in the center lane. McGuire asked McCullough to drop her off at two different friends' houses, but McCullough refused. McCullough told McGuire that if she told anyone about what he had done, he would go back to jail, and she would "have to deal with" him and his family. Tr. at 20. Finally, McCullough drove McGuire home and left. Two days later, McGuire, who had a bruise on her left wrist, reported the incident to police.
On June 6, 2007, the State charged McCullough with class D felony criminal confinement, class A misdemeanor battery, and class A misdemeanor domestic battery. On June 14, 2007, the State amended the information to include a charge of class C felony criminal confinement. Four days later, the State filed a habitual offender allegation.
During the bench trial on August 16, 2007, the State dismissed the domestic battery charge. The court found McCullough guilty of the remaining charges and of being a habitual offender. At the sentencing hearing on September 13, 2007, several witnesses testified regarding McCullough's character. In sentencing McCullough, the trial court stated,
The Court in its sentence found most significant that you had recently violated the conditions of your parole, that you have a history of criminal and delinquent activity. That's undeniable and that the Court finds that you are in need of correctional and rehabilitative treatment that could be best provided by commitment to a penal facility and that imposition of any reduced or sentence or suspension, more than the Court suspended would depreciate the seriousness of the crime to the victim in this matter. The Court does take into consideration the effect that this offense had on the victim. Additionally, by looking at your past and considering the amount of time that past [sic] between your release from the Department of Correction and the commission of this offense, the risk that you would commit another crime, the nature and the circumstances of the crime committed. The mitigator that the Court does find and does note was that this crime resulted from circumstances that are unlikely to reoccur.... It's with great seriousness that I impose this sentence today. The change that your family has seen, I hope will continue and you will not have bitterness in your heart about the sentence. I heard the facts of this case. I found that the State met their burden of proof beyond a reasonable doubt. I have the certainty that I need as a human being and as a Judge to render my sentence in this matter I heard the facts of the case and I made my decision accordingly. I don't make it recklessly. I heard the facts of the case and from hearing both sides, this is my sentence.
Tr. at 112-13. The trial court sentenced McCullough to two years for each of the confinement convictions and to one year for the battery conviction, all concurrent. The trial court imposed a four-year habitual offender enhancement, for a total sentence of six years. The trial court ordered McCullough to serve two years in the Department of Correction and the remaining four years in a community corrections facility. Both parties now appeal.
McCullough contends that there is insufficient evidence to support his convictions for confinement and battery. In addressing a sufficiency challenge, we do not reweigh the evidence or judge the credibility of the witnesses, and we respect the factfinder's exclusive province to weigh conflicting evidence. McHenry v. State, 820 N.E.2d 124, 126 (Ind.2005). We may consider only the probative evidence and reasonable inferences supporting the judgment. Id. We must affirm if the probative evidence and reasonable inferences drawn therefrom could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id.
A person who knowingly or intentionally confines another person without the other person's consent by using a vehicle commits class C felony confinement. Ind.Code § 35-42-3-3(b)(1)(B). A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner that results in bodily injury to another person commits class A misdemeanor battery. Ind.Code § 35-42-2-1(a)(1). "`Bodily injury' means any impairment of physical condition, including physical pain." Ind.Code § 35-41-1-4.
Here, the State presented evidence that McCullough would not let McGuire out of the car despite her repeated requests and repeated attempts to exit the car. This is sufficient evidence to prove that he confined her. Further, McGuire testified that during their argument, McCullough was angry and screaming and that when he grabbed her arm to pull her back into the car, he was "hurting" her arm. Tr. at 24. McGuire's arm was bruised as a result of McCullough's actions. This is sufficient evidence to prove that McCullough committed battery.
McCullough acknowledges that his conduct "[t]echnically ... meets the statutory definition of confinement." Appellant's Br. at 5. He argues, however, that he was acting out of necessity and claims, "It is reasonable, and even commendable, that McCullough did not allow McGuire to jump out of the moving car." Id. at 4. Generally, necessity may be an appropriate defense when, "under the force of extreme circumstances, conduct that would otherwise constitute a crime is justifiable and not criminal because of the greater harm which the illegal act seeks to prevent." Toops v. State, 643 N.E.2d 387 389 (Ind.Ct.App.1994). The traditional elements of a necessity defense include:
(1) the act charged as criminal must have been done to prevent a significant evil; (2) there must have been no adequate alternative to the commission of the act; (3) the harm caused by the act must not be disproportionate to the harm avoided; (4) the accused must entertain a good-faith belief that his act was necessary to prevent greater harm; (5) such belief must be objectively reasonable under all the circumstances; and (6) the accused must not have substantially contributed to the creation of the emergency.
[T]o negate a claim of necessity, the State must disprove at least one element of the defense beyond a reasonable doubt. The State may refute a claim of the defense of necessity by direct rebuttal, or by relying upon the sufficiency of the evidence in its case-in-chief. The decision whether a claim of necessity has been disproved is entrusted to the fact-finder. Where a defendant is convicted despite his claim of necessity, this court will reverse the conviction only if no reasonable person could say that the defense was negated by the State beyond a reasonable doubt.
Dozier v. State, 709 N.E.2d 27, 29 (Ind.Ct. App.1999) (citations omitted).
Here, the State established that McCullough's commission of the confinement and battery were unnecessary. Simply put, McCullough could have stopped the car and let McGuire get out as she requested, or McCullough himself could have gotten out of the car. McCullough did neither. Consequently, McCullough's claim of necessity fails. There is sufficient evidence to support the convictions.
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McCullough v. State
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