ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Karen M. Freeman-Wilson
Public Defender of Indiana Attorney General of Indiana
Gregory L. Lewis Christopher L. Lafuse
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
INDIANA SUPREME COURT
JOHN REDMAN )
v. ) 28S00-9909-CR-466
STATE OF INDIANA, )
APPEAL FROM THE GREENE SUPERIOR COURT
The Honorable David Holt, Judge
Cause No. 28D01-9805-CF-244
On Direct Appeal
March 9, 2001
The defendant, John Redman, was convicted of murder,
conspiracy to commit murder, a
class A felony,
criminal deviate conduct, a class A felony,
and criminal confinement,
a class B felony,
for a 1995 criminal episode in Linton, Indiana, that
resulted in the death of Pamela Foddrill.
Redman was sentenced to life
imprisonment without parole for the murder conviction. The trial court also imposed
consecutive sentences of fifty years for conspiracy to commit murder, fifty years for
criminal deviate conduct, and twenty years for criminal confinement.
In this appeal, Redman claims: (1) insufficient evidence of resulting serious bodily
injury to prove class B felony criminal confinement; (2) insufficient evidence of threat
to kill to prove class A felony criminal deviate conduct; and (3) violation
of the Indiana Constitution's Double Jeopardy Clause by his convictions for criminal confinement
as a class B felony and murder and by his convictions for conspiracy
to commit murder and criminal confinement. We affirm the convictions for murder
and conspiracy to commit murder. As to the other convictions and sentences,
we modify the judgment as more fully explained below.
1. Class B Felony Criminal Confinement
Redman contends that, while there was evidence that the victim suffered fractured bones,
there was no evidence that these injuries resulted from her being forcefully removed
from one place to another and that, for this reason, there was insufficient
evidence to prove the serious bodily injury element of criminal confinement as a
class B felony.
In reviewing a claim of insufficient evidence, we will affirm the conviction unless,
considering only the evidence and reasonable inferences favorable to the judgment, and neither
reweighing the evidence nor judging the credibility of the witnesses, we conclude that
no reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt. Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000); Webster
v. State, 699 N.E.2d 266, 268 (Ind. 1998); Hodge v. State, 688 N.E.2d
1246, 1247-48 (Ind. 1997). The State charged that Redman knowingly or intentionally
removed the victim by force from one place to another, which resulted in
serious bodily injury, namely fractured bones. The criminal confinement statute reads as
A person who knowingly or intentionally:
(1) confines another person without the other person's consent; or
(2) removes another person, by fraud, enticement, force, or threat of force, from
one (1) place to another;
commits criminal confinement, a Class D felony. However, the offense is a
Class C felony if the other person is less than fourteen (14) years
of age and is not the person's child, and a Class B felony
if it is committed while armed with a deadly weapon or results in
serious bodily injury to another person.
Ind.Code § 35-42-3-3. This statute defines two separate criminal offenses: confinement
by non-consensual restraint in place and confinement by removal from one place to
another. Kelly v. State, 535 N.E.2d 140, 140-41 (Ind. 1989). The
State charged Redman only with the victim's removal, but not with her restraint
in place. 2. Class A Felony Criminal Deviate Conduct
Criminal confinement is a class B felony if it "results in serious bodily
injury to another person." Ind.Code § 35-42-3-3. Redman contends that there
was no evidence that the victim's fractured bones resulted from the criminal offense
of removal from one place to another. The State does not respond
to this contention, but rather argues only that Redman held the victim captive
in an attic for several days and that the victim's injuries resulted "during
the course of her confinement." Br. of Appellee at 8. The
State does not identify any evidence tending to show that the victim's broken
bones resulted from Redman's removal of her from one place to another.
Because we conclude that there was insufficient evidence to permit a jury to
find beyond a reasonable doubt that the victim's injuries resulted from the charged
criminal offense of criminal confinement by removing the victim from one place to
another, we vacate the conviction as a class B felony and impose it
as a class D felony.
Rather than remand this matter to the trial court for the purpose of
determining the appropriate sentence for criminal confinement as a class D felony, we
will make the determination, "mindful of the penal consequences that the trial court
found appropriate." Richardson v. State, 717 N.E.2d 32, 54 (Ind. 1999).
Finding that the four aggravating circumstances outweighed one mitigating circumstance, the trial court
imposed the maximum enhancement of the offense as a class B felony.
We likewise impose the maximum enhancement of the offense as a class D
felony, sentencing Redman to three years on this count, to run consecutively to
his other sentences in this case.
Redman contends that there was insufficient evidence of deadly force to prove criminal
deviate conduct as a class A felony. He requests that his conviction
on this count be reduced to a class B felony.
The relevant portions of the statute defining the criminal offense of criminal deviate
conduct provide: "A person who knowingly or intentionally causes another person to
perform or submit to deviate sexual conduct when the other person is compelled
by force or imminent threat of force . . . commits criminal deviate
conduct, a Class B felony. An offense . . . is a
Class A felony if it is committed by using or threatening the use
of deadly force . . . ." Ind.Code § 35-42-4-2.
Redman does not dispute that the evidence was sufficient to establish that the
victim was compelled by force or imminent threat of force to perform or
submit to deviate sexual conduct, thus supporting the conviction as a class B
felony. He argues, rather, that the evidence was not sufficient to prove
that the proscribed conduct was committed by using or threatening to use deadly
force, as required for conviction as a class A felony. To justify
the enhanced penal consequences that result from the class A felony designation, the
force used must be of such a nature that it meets the statutory
definition of "deadly force," which the code defines as that which "creates a
substantial risk of serious bodily injury." Ind.Code § 35-41-1-7.
The State responds by arguing that Redman and two accomplices held the victim
captive in inhumane conditions in an attic for several days during which Redman
and three other people committed several episodes of deviate sexual conduct, and that
before the end of the captivity Redman and his accomplices decided to kill
the victim. After a final incident of Redman and Long engaging in
intercourse with the victim, the two men beat the victim with a baseball
bat and stabbed her with a knife, killing her to "keep her mouth
shut." Record at 2037. The State argues that this evidence was
sufficient to permit the jury to infer that Redman threatened to kill the
victim while he engaged in intercourse with her.
The State does not, however, identify any evidence indicating the nature of the
force or threat of force used by the assailants to accomplish their criminal
deviate conduct. While the victim's submission was clearly compelled by force, we
find no evidence from which it can be reasonably inferred that the force
used for the deviate conduct was "deadly." We conclude that there was
insufficient evidence to establish that Redman employed deadly force when he compelled the
victim to perform or submit to deviate sexual conduct.
As in the conviction for criminal confinement discussed above, we find no need
to remand for resentencing. For the same reasons previously discussed, Redman's conviction
for criminal deviate conduct is modified from a class A to a class
B felony, and we impose the maximum enhancement resulting in a sentence of
twenty years, to run consecutively to his other sentences.
3. Double Jeopardy
Redman contends that the Double Jeopardy Clause of the Indiana Constitution
we vacate his conviction for criminal confinement.
He argues that there is
a reasonable possibility that the jury used the evidence of the victim's abduction
in establishing both the offense of conspiracy to commit murder and that of
To establish that two challenged offenses constitute the same offense under the actual
evidence test and thus violate the Indiana Double Jeopardy Clause, the 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. Richardson, 717 N.E.2d
The essential elements of the offense of conspiracy to commit murder are:
(1) the defendant (2) agreed with one or more other persons to commit
the crime of murder (3) with the intent to commit murder and (4)
the defendant or one of the persons to the agreement performed an overt
act in furtherance of the agreement. Ind.Code § 35-41-5-2. The essential
elements of the charged offense of criminal confinement in this case are:
(1) the defendant (2) knowingly or intentionally (3) removed the victim by force
from one place to another. Ind.Code § 35-42-3-3.
The charging information identified four alternative overt acts: abduction, confinement, rape, and disposing
of the body. Redman points to the language of the conspiracy charge
that permitted the victim's abduction to constitute the overt act element, and argues
that the State's voir dire, opening statement, testimony of a witness, and closing
statement described the initial abduction evidence as the basis for the criminal confinement
count. He argues that there is a "reasonable possibility that the evidentiary
facts used by the jury to establish the overt act of 'abduction' in
the conspiracy charge may have also been used to establish the essential element
of forceful removal in the criminal confinement charge." Br. of Appellant at
In response, the State first argues that there is no reasonable possibility that
the jury relied on the same evidentiary facts to prove both the confinement
and the conspiracy charges. The State notes that the charged alternative overt
acts are supported by separate evidence. It emphasizes the separate evidence of
the continuous captivity, the repeated rapes of the victim during several days, and
the disposal of her body after the murder. Alternatively, the State argues
that the issue should be remanded to the trial court for factual findings
regarding the evidence used by the jury as to each conviction.
Contrary to Redman's claim, to establish a violation of the Indiana Double Jeopardy
Clause under the actual evidence test, it is not sufficient merely to show
that the same evidence may have been used to prove a single element
of two criminal offenses. Rather, it is necessary to show a possibility
that the same evidentiary facts were used to prove the body of essential
elements that comprise each of two or more of the offenses resulting in
convictions. See Richardson, 717 N.E.2d at 53.
If the jury found Redman guilty of conspiracy to commit murder based upon
the single overt act of Redman's knowing or intentional removal of the victim
from one place to another, the convictions for both conspiracy and criminal confinement
would have been based on the same evidence and thus would violate the
Indiana Double Jeopardy Clause. The issue before us, however, is not merely
whether it is possible that this occurred, but rather whether the likelihood of
this occurrence is sufficiently substantial for us to conclude that it is reasonably
possible that this occurred.
In Griffin v. State, 717 N.E.2d 73 (Ind. 1999), we were confronted with
a similar issue. The jury was instructed that the charge of conspiracy
to commit robbery could be established by various alleged overt acts, one of
which was the completed robbery itself. Noting the extensive evidence of the
other alleged overt acts, we rejected the claim of double jeopardy and emphasized:
"To establish that two offenses are the same offense under the actual evidence
test, the possibility must be reasonable, not speculative or remote." Id. at
In the present case, the evidence indicated that Redman and others forcibly abducted
the victim, a mentally retarded woman, and took her to a residential attic
where they confined her for several days, possibly more than a week, during
which they compelled her to engage in multiple acts of oral, anal, and
vaginal intercourse. After killing her, her assailants left her body in the
attic for several days, then moved it to a nearby shed, and then
removed it to a rural wooded site in Illinois.
In argument to the jury, the State did not restrict itself to the
abduction as the overt act for conspiracy. The prosecutor argued that Redman
and his accomplices "performed one or more of the overt acts, either the
abduction, the confinement, the rape or the disposal of the body. Of
course, we submit that all of them occurred, but if you only believed
one of them occur[red] and not the others, that's sufficient to convict."
Record at 2488.
The trial court's final Instruction No. 6, in part advised the jury that
the State "must allege and prove that either the person or the person
with whom he agreed performed an overt act in furtherance of the agreement."
Record at 428. The court's Instruction No. 7, enumerating the elements
of the offense of conspiracy to commit murder as charged in this case,
included its advisement that, to convict Redman of conspiracy to commit murder, the
State must have proved that he agreed with another person to commit murder,
that he did so with the intent to commit murder, and that Redman
or one of the other persons to the agreement "performed an overt act
in furtherance of the agreement by either abducting, or confining, or raping, or
disposing of the body of [the victim]." Id. at 430, 2530.
As to the charge of criminal confinement, the court's Instruction No. 9 authorized
conviction upon finding proof beyond a reasonable doubt that Redman knowingly or intentionally
removed the victim by force from one place to another. Id. at
In view of the extensive evidence of the protracted criminal episode, the State's
closing argument, and the court's instructions which clearly authorized any one of several
bases for finding the overt act element, we find no sufficiently substantial likelihood
that the jury relied on the evidence of the abduction by removal to
establish the overt act element of the conspiracy charge. The possibility is
remote and speculative and therefore not reasonable. Because there is no reasonable
possibility that the jury used the same evidentiary facts to establish the essential
elements of both criminal confinement and conspiracy to commit murder, we reject Redman's
claim that his convictions on these counts violated the Indiana Double Jeopardy Clause.
We affirm Redman's convictions for murder and conspiracy to commit murder. As
to criminal confinement, we modify the judgment from a class B felony to
a class D felony and impose a sentence of three years, to be
served consecutively. As to criminal deviate conduct, we modify the judgment from
a class A felony to a class B felony and impose a sentence
of twenty years, to be served consecutively.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
Ind.Code § 35-42-1-1.
Ind.Code § 35-41-5-2; Ind.Code § 35-42-1-1.
Ind.Code § 35-42-4-2(b).
Ind.Code § 35-42-3-3(2).
Today, we also decide the cases of Redman's companions, Roger Long and
Jerry Russell, who were each separately tried for their roles in these crimes.
Long v. State, --- N.E.2d --- (Ind. 2001); Russell v. State, ---
N.E.2d --- (Ind. 2001).
Ind. Const. art. 1, § 14.
In the alternative, he argues that the Double Jeopardy Clause at least
requires that his criminal confinement conviction be reduced to a class D felony.
We do not address this claim because we have already found that
the evidence is sufficient only for the conviction as a class D felony.