Robb, J.
Following a jury trial, Irving Madden was convicted of two counts of aggravated battery, Level 3 felonies; kidnapping, a Level 5 felony; and kidnapping for ransom and criminal confinement, Level 2 felonies. The trial court sentenced Madden to an aggregate of forty years. Madden appeals and raises two issues which we expand, reorder, and restate as: (1) whether there is sufficient evidence to support his kidnapping for ransom conviction; (2) whether his convictions violate the continuous crime doctrine; (3) whether the trial court abused its discretion by imposing consecutive sentences; and (4) whether his sentence is inappropriate in light of the nature of the offenses and his character. We conclude there is sufficient evidence to support Madden’s kidnapping for ransom conviction but Madden’s additional convictions for kidnapping and criminal confinement must be vacated. We also conclude that the trial court did not abuse its discretion by imposing consecutive sentences and Madden’s sentence is not inappropriate. We affirm in part, reverse in part, and remand.
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…[W]e address Madden’s claim that his convictions for two counts of aggravated battery and his convictions for two counts of kidnapping and criminal confinement violate the continuous crime doctrine.
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Madden filed his brief after Wadle and Powell were decided but did not address the changes these two cases brought to double jeopardy jurisprudence, even in his reply brief after the State specifically addressed those cases. Madden analyzes his claims under the continuous crime doctrine, a common law formulation. However, a panel of this court recently held that Wadle and Powell “not only overruled the constitutional substantive double jeopardy test in Richardson, they also swallowed statutory and common law to create one unified framework for substantive double jeopardy claims – including the continuous crime doctrine.” Jones v. State, 159 N.E.3d 55, 61 (Ind. Ct. App. 2020), trans. pending; see also Hill, 157 N.E.3d at 1229. We agree. Therefore, we evaluate Madden’s claims under the framework set forth in Wadle and Powell.
Substantive double jeopardy claims come in two varieties: (1) when a single criminal act or transaction violates one statute but harms multiple victims; and (2) when a single criminal act or transaction violates multiple statutes with common elements and harms one or more victims. Wadle, 151 N.E.3d at 247; Powell, 151 N.E.3d at 263. “Wadle established the test for the latter scenario, Powell the former.” Hill, 157 N.E.3d at 1228.
We analyze Madden’s claims that his two aggravated battery convictions and his convictions for both kidnapping as a Level 5 felony and as a Level 2 felony violate substantive double jeopardy by employing the test set forth in Powell.
“In resolving a claim of multiplicity, our task is to determine whether the statute permits punishment for a single course of criminal conduct or for certain discrete acts – the ‘successive, similar occurrences’ – within that course of conduct.” Powell, 151 N.E.3d at 264 (quoting Hines v. State, 30 N.E.3d 1216, 1220 (Ind. 2015)). This inquiry is a two-step process:
First, we review the text of the statute itself. If the statute, whether expressly or by judicial construction, indicates a unit of prosecution, then we follow the legislature’s guidance and our analysis is complete. See Hurst[ v. State, 464 N.E.2d 19, 21 (Ind. Ct. App. 1984)] (whether “multiple offenses of the same statute are committed during a single transaction” depends “on the definition of the particular crime involved”). But if the statute is ambiguous, then we proceed to the second step of our analysis.
Under this second step, a court must determine whether the facts – as presented in the charging instrument and as adduced at trial – indicate a single offense or whether they indicate distinguishable offenses. To answer this question, we ask whether the defendant’s actions are “so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” Walker v. State, 932 N.E.2d 733, 735 (Ind. Ct. App. 2010), cited with approval by Hines, 30 N.E.3d at 1219. If the defendant’s criminal acts are sufficiently distinct, then multiple convictions may stand; but if those acts are continuous and indistinguishable, a court may impose only a single conviction. Armstead v. State, 549 N.E.2d 400, 402 (Ind. Ct. App. 1990). Any doubt counsels “against turning a single transaction into multiple offenses.” Duncan v. State, 274 Ind. 457, 464, 412 N.E.2d 770, 775 (1980)[.]
To aid in determining the unit of prosecution when the statute does not contain an express unit of prosecution, the Powell court distinguished conduct-based statutes from result-based statutes and explained:
A conduct-based statute . . . consists of an offense defined by certain actions or behavior (e.g. operating a vehicle) and the presence of an attendant circumstance (e.g., intoxication). . . . A result-based statute . . . consists of an offense defined by the defendant’s actions and the results or consequences of those actions. In crimes such as murder, manslaughter, battery and reckless homicide, the gravamen of the offense is causing the death or injury of another person, i.e., the result is part of the definition of the crime. In other words, the resulting death, injury or offensive touching is an element of the crime. . . . Under these statutes, then, where several . . . injuries occur in the course of a single incident, the prohibited offense has been perpetrated several times over. . . . In short, crimes defined by conduct (rather than by consequence) permit only a single conviction (with multiple consequences resulting in enhanced penalties, not multiple crimes). But crimes defined by consequences (rather than by conduct) permit multiple convictions when multiple consequences flow from a single criminal act.
Id. at 265-66 (internal quotations, emphases, and citations omitted).
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Madden also argues his multiple convictions for kidnapping violate the continuous crime doctrine. See Brief of the Appellant at 24. Specifically, Madden contends, and the State agrees, that his conviction for Level 2 felony kidnapping may stand but his Level 5 felony kidnapping conviction must be vacated. See Brief of Appellee at 16.
“A person who knowingly or intentionally removes another person, by fraud, enticement, force, or threat of force, from one place to another commits kidnapping.” Ind. Code § 35-42-3-2(a). Madden was charged with two violations of this statute: one offense was elevated to a Level 5 felony because the kidnapping resulted in bodily injury to A.C. and the other offense was elevated to a Level 2 felony because it was committed with the intent to obtain ransom. Ind. Code §§ 35-42-3-2(b)(1)(C), (3)(a) (2014). This is a conduct-based statute because the gravamen of the offense is the action of removing the victim. Here, there is no question that only one removal occurred: Madden’s forceful removal of A.C. from Jones’ car into the basement. “The only things that distinguish the Level [5] conviction (injury) from the Level [2] conviction (ransom) are result and motive. These are not the units of prosecution for kidnapping.” Jones, 159 N.E.3d at 65. Therefore, only one can stand, which, in this case, is the Level 2 felony. See id. (“[T]he lesser felony should fall.”). We remand to the trial court with instructions to vacate Madden’s Level 5 felony kidnapping conviction and amend its judgment to remove the conviction and sentence on this count.
Wadle’s double jeopardy framework applies when a single criminal act or transaction violates multiple statutes with common elements. In such a case,
we first look to the statutes themselves. If either statute clearly permits multiple punishment, whether expressly or by unmistakable implication, the court’s inquiry comes to an end and there is no violation of substantive double jeopardy. But if the statutory language is not clear, then a court must apply our included-offense statutes to determine whether the charged offenses are the same. See I.C. § 35-31.5-2-168. If neither offense is included in the other (either inherently or as charged), there is no violation of double jeopardy. But if one offense is included in the other (either inherently or as charged), then the court must examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial. If, based on these facts, the defendant’s actions were “so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction,” then the prosecutor may charge the offenses as alternative sanctions only. But if the defendant’s actions prove otherwise, a court may convict on each charged offense.
Wadle, 151 N.E.3d at 253. Madden argues that both his Level 2 kidnapping and criminal confinement convictions cannot stand. The State concedes that under the Wadle test, Madden is correct. Looking first to the statutory language, Level 2 kidnapping is committed by “[a] person who knowingly or intentionally removes another person, by fraud, enticement, force, or threat of force, from one place to another[,]” with the intent to obtain ransom. Ind. Code § 35-42-3-2(a), (b)(3)(A) (2014). And Level 2 criminal confinement is committed by “[a] person who knowingly or intentionally confines another person without the other person’s consent[,]” with the intent to obtain ransom. Ind. Code § 35-42- 3-3(a), (b)(3)(A) (2014). Because neither statute permits multiple punishment, we move to the second step of the statutory analysis and apply our includedoffense statutes to determine statutory intent. Wadle, 151 N.E.3d at 253; Barrozo v. State, 156 N.E.3d 718, 723 (Ind. Ct. App. 2020).
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…The element of confinement is a necessary part of forced removal. As such, confinement is a lesser included offense of kidnapping. Jones, 159 N.E.3d at 66 (footnote omitted). We also note that Madden’s enhancements were identical; both offenses were elevated to a Level 2 felony because the offenses were committed with the intent to obtain ransom. See Ind. Code §§ 35-42-3-2(b)(3)(A) (2014), 35-42-3-3(b)(3)(A) (2014).
Because criminal confinement is included in kidnapping, we must examine the underlying facts to determine whether Madden’s actions were “so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction” such that his convictions for criminal confinement and kidnapping violate double jeopardy. Wadle, 151 N.E.3d at 253. Here, the same facts proved Madden’s conviction for criminal confinement and kidnapping – that he forced A.C. from the car and into the basement where she was handcuffed. And because Madden acted with the intent to obtain ransom, both convictions were enhanced to Level 2 felonies. Madden’s actions were so compressed in time, place, singleness of purpose, and continuity of action that his convictions for both crimes violate double jeopardy. Accordingly, we remand with instructions for the trial court to vacate the included offense, namely Madden’s Level 2 felony criminal confinement conviction, and amend its judgment to remove the conviction and sentence on this count. See Ind. Code § 35-38-1-6 (stating that when a defendant is charged with an offense and an included offense in separate counts and is found guilty of both counts, the trial court cannot enter a judgment and sentence for the included offense).
In sum, Madden’s two aggravated battery convictions do not constitute double jeopardy and are therefore affirmed. Madden’s Level 5 felony kidnapping and criminal confinement convictions do constitute double jeopardy in relation to his Level 2 felony kidnapping conviction. Therefore, his convictions for Level 5 felony kidnapping and criminal confinement must be vacated and his conviction for Level 2 kidnapping is affirmed.
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For the reasons set forth above, we conclude the evidence is sufficient to support Madden’s kidnapping for ransom conviction, the trial court did not abuse its discretion by imposing consecutive sentences, and his sentence is not inappropriate. We conclude that Madden’s aggravated battery convictions do not constitute double jeopardy and are therefore affirmed. Madden’s convictions for Level 5 felony kidnapping and criminal confinement do constitute double jeopardy in relation to his Level 2 felony kidnapping conviction. Therefore, we remand to the trial court with instructions to vacate Madden’s Level 5 felony kidnapping and criminal confinement convictions and amend its judgment accordingly.
Affirmed in part, reversed and remanded in part.
Bailey, J., and Tavitas, J., concur.