Appeal from the Miami Superior Court, No. 52D02-1209-FC-236. The Honorable Daniel C. Banina, Judge. On Transfer from the Indiana Court of Appeals, No. 52A05-1312-CR-594.
ATTORNEYS FOR APPELLANT: Stacy R. Uliana, Bargersville, Indiana; John H. Kenney, Indiana Public Defender Council, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Ellen H. Meilaender, Andrew A. Kobe, Joseph Y. Ho, Deputy Attorneys General, Indianapolis, Indiana.
Dickson, Justice. Rush, C.J., and Rucker and David, JJ., concur. Massa, J., concurs in result.
Following a jury trial, the defendant Cornelius Hines was convicted of Criminal Confinement and Battery. He has appealed claiming violations of both Indiana's constitutional and common law proscriptions against double jeopardy and seeking review of sentence inappropriateness. We find that the defendant's two convictions do not violate the common law but do run afoul of the Double Jeopardy Clause of the Indiana Constitution.
On August 28, 2012, while incarcerated at the Miami Correctional Facility, the defendant suffered a seizure which brought him to the infirmary. Because the defendant had urinated on himself, correctional officer Regina Bougher escorted him to another room in the infirmary to get a change of clothes from his property, which was kept in a tote. After the defendant retrieved his clothes, he bent over to push the tote with his hands and then lunged towards the officer, striking her on the left side of her ribs with his head and shoulder. Having pinned the officer to the wall, the defendant hit the officer's head against a filing cabinet or wall and then held her in a headlock with his left hand on her right arm and his right hand over her mouth and face. After not " very long" --less than five minutes, the officer was able to break from the defendant's grip and radio for assistance. Tr. at 174. She suffered a cut in her mouth, pain and bruising in her ribs, a bruise on her right arm, and a concussion as a result of the attack. The State charged the defendant with Criminal Confinement as a Class C felony and Battery as a Class D felony. A jury found him guilty as to both charges, and the trial court sentenced the defendant to concurrent terms of eight years for Criminal Confinement and three years for Battery. The Court of Appeals affirmed. Hines v. State, No. 52A05-1312-CR-594, 14 N.E.3d 133 (Ind.Ct.App. June 17, 2014) (table).
Generally averring violation of double jeopardy under the Indiana Constitution and common law, the defendant makes three alternative arguments. In one, he argues that, even if the force he used to lunge against the officer were considered separately from the force he used to pin her against the wall, the continuous crime doctrine requires that such conduct be considered as a continuous single transaction, a species of common law double jeopardy. He alternatively argues that his force used to lunge into the officer was the very same force he used to pin her against the wall, and thus there is a reasonable possibility that the jury relied on the same evidence--this force--to convict him of both offenses, in violation of the Double Jeopardy Clause of the Indiana Constitution, Article 1, Section 14.
His third alternative double jeopardy argument is that his convictions for both Battery as a Class D felony and Confinement as a Class C felony violate Indiana common law double jeopardy because both convictions were enhanced based on the same bodily injury. In addition to these claims, the defendant seeks sentence review under Appellate Rule 7(B).
1. Continuous Crime Doctrine
The defendant argues that, under protections against double jeopardy in the Indiana Constitution and Indiana common law, both his convictions cannot stand because " in reality, pushing and pinning [the officer] against the wall is one continuous act with the same purpose" and thus " the same force was used to support both convictions." Appellant's Br. at 4. " Where the issue presented on appeal is a pure question of law, we review the matter de novo." State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind. 1997).
The defendant focuses on his common law argument on transfer, arguing that the continuous crime doctrine applies regardless of whether actions are charged as the same or distinct offenses and that the defendant's act of pushing the officer constitutes just one criminal conviction. The defendant urges that this Court should follow
Buchanan v. State, 913 N.E.2d 712, 720-21 (Ind.Ct.App. 2009), trans. denied, where the Court of Appeals extended the continuous crime doctrine to vacate two distinct chargeable crimes. The State takes the opposite position, relying on Walker v. State, 932 N.E.2d 733, 737 (Ind.Ct.App. 2010), reh'g denied, where the Court of Appeals panel explicitly disagreed with Buchanan and limited the continuous crime doctrine to situations " where a defendant has been charged multiple times with the same offense." We largely agree with the Walker approach but write to restore and clarify the application of this common law doctrine. Ultimately, we agree that the continuous crime doctrine does not apply to the facts of this case.
The continuous crime doctrine is a rule of statutory construction and common law limited to situations where a defendant has been charged multiple times with the same offense. " The continuous crime doctrine does not seek to reconcile the double jeopardy implications of two distinct chargeable crimes; rather, it defines those instances where a defendant's conduct amounts only to a single chargeable crime." Boyd v. State, 766 N.E.2d 396, 400 (Ind.Ct.App. 2002), trans. not sought; see Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002) (recognizing " a series of rules of statutory construction and common law that are often described as double jeopardy, but are not governed by the constitutional test set forth in Richardson" ). The Legislature, not this Court, defines when a criminal offense is " continuous," e.g. not terminated by a single act or fact but subsisting for a definite period and covering successive, similar occurrences. We have applied the continuous crime doctrine in the context of felony murder and robbery, confinement, and kidnapping;  situations
where the crime charged, as defined by statute, was " continuous." For example, in
Eddy v. State, we interpreted the statutory requirement that a homicide-robbery transaction be continuous to encompass a transaction where all the statutory elements of the robbery had been completed before the commission of the homicide:
This Court has long declined to define the phrase, " while committing," in terms of the chronological completion of the statutory elements of the underlying felony. [To do so] would elevate form over substance. . . . A crime that is continuous in its purpose and objective is deemed to be a single uninterrupted transaction. A homicide and robbery are deemed to be one continuous ...