by David Kim

The Supreme Court of Indiana held that when a criminal statute defines a base offense with elevated forms at higher penalty levels, those elevated forms constitute a single statutory offense for substantive double jeopardy purposes, requiring application of the Powell multiplicity test rather than the Wadle included-offense test. Applying this framework to the criminal confinement statute, the Court concluded that the defendant’s convictions for both Level 3 and Level 4 felony criminal confinement punished the same continuous conduct and therefore reversed and remanded with instructions to vacate the lesser conviction.

Background

In June 2022, Marvin Moyers violently restrained Gregory Luhrsen inside Luhrsen’s home for about six hours. During that period, Moyers used physical force, bindings, and a handgun to keep Luhrsen under control while moving him through the house and garage. Although Luhrsen briefly tried to flee through the basement, Moyers, who was armed with a handgun, stopped the attempt, and Luhrsen did not finally escape until later, when he freed himself and ran out the front door.

The State charged Moyers with nine felony counts. A jury convicted him on multiple counts, including two criminal confinement charges. After vacating five counts on double jeopardy grounds, the trial court entered convictions for Level 1 felony burglary, Level 3 felony criminal confinement while armed with a deadly weapon, and Level 4 felony criminal confinement resulting in moderate bodily injury. The court imposed an aggregate 100-year sentence, running the two confinement sentences consecutively but capping their combined total at 20 years under Indiana Code § 35-50-1-2(d).

The Court of Appeals affirmed, applying the Wadle test despite both parties’ agreement that Powell governed. The Indiana Supreme Court granted transfer, thereby vacating the appellate decision. See Ind. Appellate Rule 58(A).

Analysis

The Court observed that since the state Supreme Court’s 2020 decisions in Wadle v. State, 151 N.E.3d 227 (Ind. 2020), and Powell v. State, 151 N.E.3d 256 (Ind. 2020), uncertainty had persisted regarding which test applies when convictions stem from multiple violations of the same statute with differing enhancing circumstances. Panels of the Court of Appeals had diverged, with some treating such convictions as distinct statutory offenses warranting Wadle analysis, and others finding a single statutory offense requiring Powell. Compare Boner v. State, 243 N.E.3d 354 (Ind. Ct. App. 2024), with Jones v. State, 159 N.E.3d 55 (Ind. Ct. App. 2020).

To resolve this confusion, the Court examined how the Legislature distinguishes base offenses from their elevated counterparts. The Court announced a clarifying principle: “When a statute defines a common base offense that can be elevated to higher penalty levels through attendant circumstances or results, the base offense and its elevated forms together constitute one statutory offense.” However, statutes defining distinct base offenses create separate statutory offenses subject to Wadle.

The Court identified three categories of criminal statutes to guide future analysis. Category One encompasses statutes establishing a base offense with elevated forms sharing that common base, rendering Powell the proper test. The criminal confinement statute exemplifies this category. Subsection (a) defines Level 6 felony criminal confinement as the base offense, while subsection (b) elevates “the offense of criminal confinement” to higher penalty levels based on various circumstances. Category Two contains statutes defining multiple distinct base offenses, each constituting separate statutory offenses subject to Wadle. Category Three includes statutes creating base offenses with alternative elements, which “may pose interpretive challenges” requiring careful textual analysis.

Rejecting the State’s argument that different enhancing circumstances render offenses distinct, the Court explained that enhancing circumstances, for multiplicity purposes, do not constitute offense elements. The Court quoted its prior precedent: “‘[I]f the consequence serves primarily to enhance the penalty for a crime that is committed without the consequence,’ then ‘multiple consequences do not establish multiple crimes.’” Mathews v. State, 849 N.E.2d 578 (Ind. 2006). The Court ruled that because the criminal confinement statute’s elevated forms share a common base offense, Powell governs.

Application of the Powell Test

Under Powell, the analysis can require two steps. At step one, courts ask whether the statute, expressly or by judicial construction, identifies a “unit of prosecution” – the act or conduct the Legislature intended to punish as one offense. If the statute does not do so expressly, courts determine whether it is conduct-based or result-based. Conduct-based statutes permit only one conviction for a single discrete incident, while result-based statutes may permit multiple convictions when multiple consequences flow from a single act. If ambiguity remains after step one, courts proceed to step two and determine whether the facts, as charged and proved at trial, indicate a single offense or distinguishable offenses, the Court explained. Here, however, the Court concluded that step one resolved the case because criminal confinement is a conduct-based offense whose gravamen is confining another person without consent.

The Court agreed with both parties that criminal confinement is conduct-based because, as the State acknowledged, “the gravamen of the offense is a person’s act of confining another person without their consent.” Citing Penrod v. State, 810 N.E.2d 345 (Ind. 2004), the Court reiterated that “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.’” Consequently, “if there is just one confinement, ‘multiple convictions are inappropriate even when there are variations in the way the counts are charged,’” the Court stated.

Determining the Number
of Offenses

The State contended Moyers committed two separate confinements because Luhrsen’s attempted escape broke the continuity. The Court disagreed, finding guidance in Bartlett v. State, 711 N.E.2d 497 (Ind. 1999), where the state Supreme Court held that a kidnapping victim remained continuously confined throughout an ordeal despite moments when he was briefly unrestrained, because he remained “either tied up, under the control of the gun, or acting under the threat or fear of force.”

Similarly, Luhrsen was never actually free from the moment Moyers first restrained him until his eventual escape nearly six hours later, according to the Court. His failed attempt to flee through the basement did not break the confinement because Moyers kicked in the door while armed, and Luhrsen “stopped” and “decided he was ‘not going to run’ because Moyers had a gun.” Thus, the Court determined that the evidence established one continuous confinement permitting only one conviction.

Conclusion

Accordingly, the Court reversed and remanded with instructions to vacate Moyers’ Level 4 criminal-confinement conviction and enter an amended sentencing order. The Court explained that the amended order would reduce the aggregate sentence from 100 years to 96 years and should also ensure that the firearm and habitual-offender enhancements are attached to specific convictions. See: Moyers v. State, 2026 Ind. LEXIS 190 (2026).  

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