Opinion
No. 09A05-1011-CR-689
08-31-2011
ANTONIO D. MURILLO, Appellant, v. STATE OF INDIANA, Appellee.
ATTORNEY FOR APPELLANT : MATTHEW D. BARRETT Matthew D. Barrett, P.C. Logansport, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any co urt except for the purpose of establis hing the defense of res judicata, collater al estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
MATTHEW D. BARRETT
Matthew D. Barrett, P.C.
Logansport, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE CASS SUPERIOR COURT
The Honorable Richard A. Maughmer, Judge
Cause No. 09D02-1005-FC-20
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN , Judge
STATEMENT OF THE CASE
Antonio Murillo appeals his convictions following a bench trial for criminal confinement as a class C felony and domestic battery as a class D felony.
I.C. § 35-42-2-1.3.
We affirm.
ISSUES
1. Whether the trial court erred in denying Murillo's motion for a directed verdict upon the criminal confinement charge.
2. Whether Murillo's convictions constitute double jeopardy.
FACTS
Murillo and Marisol Cervantes were married in 2007 and have three children together, the oldest of whom was born in 2002. At some point, Murillo and Cervantes separated. At approximately 2:00 a.m. on September 7, 2009, Cervantes and her children were home, sleeping in one bedroom, when Cervantes heard someone knocking on the front door. Leaving the children in the bedroom, Cervantes went into the living room and answered the door. After Cervantes opened the door, Murillo came into the home and started yelling at Cervantes and accusing her of having been with someone else. As the two argued, Murillo struck Cervantes "in the face." (Tr. 19). Murillo then took Cervantes' cell phone before "grabb[ing] [her] by the hair" and forcing her outside. (Tr. 19). As he forced Cervantes outside, Murillo told her that he "was going to take [her] to show [her] how he was going to kill that person that [she] was with." (Tr. 20).
Cervantes also had a fourth child.
All citations to the transcript are to Volume 11.
Once outside, Murillo made Cervantes walk to the driver's side of his truck. While still holding Cervantes by the hair, Murillo got into the driver's seat and started the truck. As the truck began to move forward, "something distracted" Murillo momentarily, and he loosened his grip on Cervantes' hair. (Tr. 23). Cervantes, who was standing outside the truck, was able to pull away from Murillo; as she did so, she struck her back on the still-moving truck, causing an abrasion to her back. She also suffered an abrasion to her arm.
After Cervantes escaped, Murillo drove away. Once Murillo left, Cervantes realized that the children were outside, "watching when all that happened[.]" (Tr. 25). Murillo then "came back," (tr. 24); threw Cervantes' cell phone at her; told her "it wasn't over then and that [she] was going to be sorry, that he was going to kill [her]"; and again drove away. (Tr. 26). Deputies with the Cass County Sheriff's Department arrested Murillo later that morning.
On September 9, 2009, the State charged Murillo with Count 1, domestic battery as a class D felony; Count 2, criminal confinement as a class D felony; Count 3, criminal recklessness as a class A misdemeanor; and Count 4, invasion of privacy as a class A misdemeanor. On May 26, 2010, the State filed an amended information, charging Murillo with Count 5, criminal confinement as a class C felony.
On September 29, 2010, the trial court granted the State's motion to dismiss Counts 2, 3, and 4 and held a bench trial on the remaining counts. During the trial, Cervantes testified that her face "hurt" and became swollen due to Murillo striking her. (Tr. 53). Murillo and Cervantes' oldest child testified that she woke up when Murillo first entered the house, fell back to sleep, and then woke up again when she heard Murillo strike Cervantes.
At the conclusion of the State's case-in-chief, Murillo moved for a directed verdict on the remaining counts. The trial court denied the motion and found Murillo guilty on both counts. Following a sentencing hearing on November 1, 2010, the trial court sentenced Murillo to a total sentence of seven and one-half years.
DECISION
1. Directed Verdict
Murillo asserts that the trial court erred in denying his motion for a directed verdict on Count 5, criminal confinement as a class C felony. Specifically, he argues that "the State offered no evidence that he substantially interfered with [Cervantes'] liberty" because he only "held Cervantes' hair for a very short period of time and distance . . . ." Murillo's Br. at 7, 9.
A trial court appropriately grants a motion for a directed verdict when there is a total lack of evidence regarding an essential element of the crime or when the evidence is without conflict and susceptible only to an inference in favor of the defendant's innocence. If the evidence is sufficient to sustain a conviction upon appeal, then a motion for a directed verdict is properly denied; thus, our standard of review is essentially the same as that upon a challenge to the sufficiency of the evidence. WeBass v. State, 947 N.E.2d 456, 459 (Ind. Ct. App. 2011) (internal citations omitted), trans. denied.
neither reweigh evidence nor judge witness credibility, but consider only the evidence that supports the conviction and the reasonable inferences to be drawn therefrom in order to determine whether there is substantial evidence of probative value from which a reasonable factfinder could have drawn the conclusion that the defendant was guilty of the crime charged beyond a reasonable doubt.
Indiana Code section 35-42-3-3 provides as follows:
(a) A person who knowingly or intentionally:The offense of criminal confinement is a class C felony if "it results in bodily injury to a person other than the confining or removing person[.]" I.C. § 35-42-3-3(b)(1)(C).
(1) confines another person without the other person's consent; orcommits criminal confinement.
(2) removes another person, by fraud, enticement, force, or threat of force, from one (1) place to another;
To "'confine' means to substantially interfere with the liberty of a person." I.C. § 35-42-3-1. "Any amount of force can cause a confinement because force, however brief, equals confinement." Harvey v. State, 719 N.E.2d 406, 411 (Ind. Ct. App. 1999). Furthermore, whether a person is confined does not depend on how far the person is moved. Cornelius v. State, 508 N.E.2d 548, 549 (Ind. 1987) (finding the defendant's "argument that he forced the victim to go only a few feet with a knife at her side . . . was insufficient to create confinement" to be "wholly without merit"). Rather, "[t]he essence of the offense is the restriction of a person's freedom of movement and liberty against [her] will." Id.
Here, Cervantes testified that Murillo grabbed her by the hair and forced her to walk from her house to Murillo's truck. Cervantes testified that she "couldn't get away from" Murillo because "he had [her] by the hair . . . ." (Tr. 49). With Cervantes standing outside, Murillo continued to hold her by the hair as he started the truck and began to move forward. When Cervantes was able to pull away from Murillo's grasp and the moving truck, she struck her back on the truck, causing an abrasion.
We find that the State presented sufficient evidence from which a reasonable factfinder could conclude that Murillo criminally confined Cervantes. Accordingly, we find no error in denying Murillo's motion for a directed verdict.
Citing to Cunningham v. State, 870 N.E.2d 552, 554 (Ind. Ct. App. 2007), Murillo disregards the evidence presented and argues that confinement cannot be inferred because Cervantes "did not testify at trial that she felt confined when [he] struck her face and then pulled her by the hair to his truck." Murillo's Br. at 9. We note, however, that when asked whether "[a]t any time when [Murillo] had a hold of [her] hair and walked [her] from the house outside to the car did [she] feel [she] w[as] free to go," Cervantes replied, "No, how was I going to feel that I was free to go if he had me by my hair." (Tr. 54). She also testified that she did not want to go with Murillo. Notwithstanding Cervantes' testimony, Cunningham is inapplicable as, in that case, the State offered no direct evidence that the defendant restrained the victim's liberty. 870 N.E.2d at 553.
2. Double Jeopardy
Murillo next asserts that his convictions violate Indiana's prohibition against double jeopardy. He contends that "the very same facts were used to establish the force behind the 'touch' element of Count 1 and 'confine' element of Count 5, as well as the 'bodily injury' in both Counts." Murillo's Br. at 13.
Pursuant to Article 1, Section 14 of the Indiana Constitution, "[n]o person shall be put in jeopardy twice for the same offense."
[T]wo offenses are the "same offense" in 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.Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2008) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). Here, Murillo argues that his convictions violate the "actual evidence" test.
Under the "actual evidence" test,
the actual evidence presented at trial is examined to determine whether each challenged offense was established by separate and distinct facts. 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 1234. "'The Indiana Double Jeopardy Clause is not violated when 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.'" Lee, 892 N.E.2d at 1234 (quoting Spivey v. State, 717 N.E.2d 831, 833 (Ind. 2002)).
Application of this test requires the court to "identify the essential elements of each of the challenged crimes and to evaluate the evidence from the jury's perspective . . . ." In determining the facts used by the fact-finder to establish the elements of each offense, it is appropriate to consider the charging information, jury instructions, and arguments of counsel.Id. (internal citations omitted).
For the domestic battery conviction, the State was required to prove that Murillo knowingly or intentionally touched Cervantes, a person with whom he had a child, in a rude, insolent, or angry manner that resulted in bodily injury to Cervantes and did so "in the physical presence of a child less than sixteen (16) years of age, knowing that the child was present and might be able to see or hear the offense." I.C. § 35-42-2-1.3(b)(2). "'Bodily injury' means any impairment of physical condition, including physical pain." I.C. § 35-41-1-4.
The evidence shows that during a heated argument inside the house, Murillo struck Cervantes' face with enough force to wake one of their children and that the blow caused pain and swelling. These facts can properly support Murillo's conviction for class D felony domestic battery.
The evidence also shows that Murillo then grabbed Cervantes by the hair, forced her outside of the house to his truck, and restrained her by holding her hair as he got in and started his truck. When Cervantes was able to pull free from Murillo and away from the moving truck, she struck her back on the truck, causing an abrasion. These facts can properly support Murillo's conviction for class C felony criminal confinement. Given that separate and distinct facts establish Murillo's offenses and Cervantes' injuries, we find no violation of Indiana's prohibition against double jeopardy.
Affirmed. RILEY, J., and BARNES, J., concur.