ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Victoria Ursulskis Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Christopher L. Lafuse
Deputy Attorney General
SUPREME COURT OF INDIANA
MICHAEL W. GATES, ) ) Appellant (Defendant Below ), ) ) v. ) No. 49S00-0011-CR-633 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
December 20, 2001
Michael W. Gates was convicted and sentenced for rape, criminal deviate conduct, and
criminal confinement. He seeks relief from his sentence for criminal confinement on
both statutory and double jeopardy grounds. We affirm.
F.T. awoke when Gates jumped onto her bed. Gates told F.T. he
was drunk and pissed off and not to mess with him. (R.
at 252, 254.) F.T. noticed Gates was holding a rope and a
knife. Gates hit F.T.s head against the headboard a few times, tied
her hands behind her back with the twine, covered her mouth with a
bandana, and removed her nightgown by cutting the straps with the knife.
Gates put the knife to F.T.s throat and compelled her to walk to
another bedroom in the house. In that bedroom, Gates made F.T. perform
oral sex. He then forced sexual intercourse. Gates also inserted the
handle of his knife and another object (F.T. believed it was a bottle
of baby oil) into her vagina.
The telephone rang while Gates and F.T. were in the back bedroom.
Gates held the knife to F.T.s throat and forced her into the living
room to answer the phone. Gates threatened to kill her if she
said anything. After the call, Gates forced F.T. to perform oral sex
while in the living room. He then took her back into the
bedroom where he again raped her vaginally.
After this final assault, Gates became distraught. He cried and apologized and
told F.T. she could call the police. F.T. told him to leave.
She then called her boyfriend, who returned home and helped her contact
Gates was charged with one count of rape, a class A felony, three
counts of class A criminal deviate conduct, and one count of confinement, a
class B felony. The State also charged Gates with being an habitual
The jury convicted Gates of the rape, two counts of criminal deviate conduct,
and confinement. Gates admitted to being an habitual offender. The court
imposed sentences of fifty years for rape, adding thirty years for the habitual
finding; followed by concurrent terms of fifty years for each deviate conduct conviction;
and twenty years for confinement. (R. at 24, 551-53.) The total
executed term is thus 130 years.
Gates specific contention is that the confinement was a means used to commit
the rape and criminal deviate conduct because F.T. was bound only during the
commission of the charged offenses. (Appellants Br. at 7.) He relies
on Griffin v. State, 583 N.E.2d 191 (Ind. Ct. App. 1991), and Harvey
v. State, 719 N.E.2d 406 (Ind. Ct. App. 1999).
In both Griffin and Harvey, the court found the confinement charge to be
a lesser included offense because it was confinement by force. In Griffin,
the defendant confined the victim by holding her on the ground while he
attempted to rape her, and that act was also charged as evidence of
the attempted rape. Griffin, 583 N.E.2d at 195. In Harvey, the
defendant was charged with confinement by detaining the clerk while he robbed a
liquor store. Harvey, 719 N.E.2d at 408, 412. In neither case
did the perpetrator attempt to confine the victim through any means or actions
beyond those inherent in the commission of the crime. In each of
these cases, neither the crime nor the attempt could have been accomplished without
employing the restrictive force charged.
In the instant case, despite a similar duration, Gates confinement of F.T. was
distinct and elevated from the restraint necessary to commit the other charged crimes.
The State charged that Gates tied F.T.s hands with twine while armed
with a knife. (R. at 30.) The elements of confinement and
use of force were distinct in this case. See Harvey, 719 N.E.2d
at 411. Gates threatened F.T. with the knife during the commission of
each crime with which he was charged.
See footnote The tying of F.T.s hands
was not an essential element of the rape or criminal deviate conduct.
The State provided evidence that Gates approached F.T. while armed with a knife
and tied her hands behind her back with twine. (R. at 254-55.)
There was also testimony and photographic evidence showing marks on F.T.s wrists
made by the twine, (R. at 351, 365, 380, 382-85, 458), and showing
that twine was found in a trash can in F.T.s home after the
rape, (R. at 277, 460). Such evidence portrays the confinement as an
independent crime. The tying of F.T.s hands was not a necessary part
of the rape and criminal deviate conduct. Such restriction is not integral
to the force or limitations inherent in those charges.
Because Gates used additional methods to restrict F.T.s freedom, the trial court properly
sentenced him on the criminal confinement count.