Attorneys for Appellant Attorneys for Appellee
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
Gregory L. Lewis Zachary J. Stock
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
Appeal from the Huntington Circuit Court, No. 35C01-0207-FA-00040
The Honorable Mark A. McIntosh, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 35A02-0304-CR-299
June 17, 2004
Seventeen-year-old E.H. was home alone one evening when Penrod appeared in her hallway
with a gun. He ordered her downstairs to the garage, where they
met Penrods accomplice. The three left in E.H.s car, pausing briefly so
that the accomplice could exit and drive another vehicle. Penrod drove to
Huntington Reservoir, ordered E.H. out of the car, made her take off her
pants, and began rubbing her with his penis.
Penrod then took E.H. to the backseat of her car and raped her
twice. He forced her into the trunk, drove a short distance, and
finally left her in the vehicle, saying he would return shortly. E.H.
eventually forced the backseat down and crawled out into the passenger compartment.
Fearful that Penrod might be watching, she crawled back into the trunk.
Sometime later, she left for help.
A jury found Penrod guilty on all counts. The trial court ordered
maximum sentences on all counts and directed that the sentences be consecutive.
The Court of Appeals affirmed. Penrod v. State, No. 35A02-0304-CR-299 (Ind. Ct.
App., December 29, 2003). We granted transfer.
Penrod contends that multiple convictions of confinement were improper and alleges an error
in instructing the jury. On this latter point, we summarily affirm the
Court of Appeals denial of relief. Ind. Appellate Rule 58A(2).
As for the kidnapping and confinement counts, the charging instrument alleges that the
kidnapping occurred when Penrod confined E.H. in the course of hijacking her vehicle.
One of the confinement counts alleges that Penrod confined E.H. by transporting
her to the scene of the rapes; the other alleges that he confined
her by placing her in the trunk. On appeal, the State has
argued that the two confinements are separate because E.H. escaped from the trunk
(ending confinement one) and then retreated to the trunk out of fear (confinement
two). It argues that each of these is sufficiently distinct to support
a separate conviction.
Penrod contends that these events constituted one continuous confinement, and we conclude that
he has the better of the arguments. As the Court of Appeals
has said, A confinement ends when the victim both feels free and is,
in fact, free from detention, and a separate confinement begins if and when
detention of the victim is re-established. Boyd v. State, 766 N.E.2d 396,
400 (Ind. Ct. App. 2002). Where that has not occurred, multiple convictions
are inappropriate even when there are variations in the way the counts are
charged. Curry v. State, 643 N.E.2d 963, 980-81 (Ind. Ct. App.
1994) (just one confinement where victim was confined and removed from one place
to another, but she was never free
even during [perpetrators] absences from the vehicle,
she did not feel free to attempt an escape because she did not
know if she was being watched). The confinements as charged here occurred
during the greater course of the kidnapping and thus were not appropriate as
We vacate the two confinement convictions and affirm the fifty years for rape
followed by the fifty years for kidnapping.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.