IN THE
Court of Appeals of Indiana
FILED
Carey Lee Fleener, Jr., Jul 15 2026, 9:16 am
CLERK
Appellant-Defendant Indiana Supreme Court
Court of Appeals
and Tax Court
v.
State of Indiana,
Appellee-Plaintiff
July 15, 2026
Court of Appeals Case No.
25A-CR-2776
Appeal from the Marion Superior Court
The Honorable Marie L. Kern, Judge
The Honorable Heather M. Dean-Barton, Magistrate
Trial Court Cause No.
49D28-2505-F5-16520
Opinion by Chief Judge Tavitas
Judges Weissmann and Foley concur.
Court of Appeals of Indiana Opinion 25A-CR-2776 July 15, 2026 Page 1 of 13
Tavitas, Chief Judge.
Case Summary
[1] Carey Fleener, Jr., appeals his convictions for criminal confinement, a Level 5
felony, and domestic battery, a Level 6 felony. We affirm Fleener’s conviction
for criminal confinement but reverse his conviction for domestic battery on
substantive double jeopardy grounds and remand with instructions that the
conviction and sentence on that count be vacated.
Issues
[2] Fleener presents two issues, which we restate as:
I. Whether the State presented sufficient evidence to support
Fleener’s conviction for criminal confinement.
II. Whether Fleener’s convictions for both criminal confinement
and domestic battery constitute substantive double jeopardy.
Facts
[3] Fleener is the former fiancé of Donnette Swift and the father of the youngest of
Swift’s three minor children. Fleener moved into Swift’s home in November
2024. Fleener and Swift were engaged, but Fleener broke off the engagement in
May 2025.
[4] On the morning of May 23, 2025, Swift took her oldest child to school and
came back home. She then looked through Fleener’s phone and found text
messages between Fleener and another woman. Upset by her discovery, Swift
Court of Appeals of Indiana Opinion 25A-CR-2776 July 15, 2026 Page 2 of 13
asked Fleener to move out of her house, but he refused. When Swift stated that
she would evict Fleener, he threatened to stop supporting her financially. Swift
responded that she would find someone else to support her, and the two began
to yell at each other. Swift’s two younger children were present during the
argument.
[5] At some point during the argument, Swift took out her cell phone, and Fleener
took the phone from her and threw it against the wall. Swift then walked to the
front door to leave, but Fleener stood in the doorway and told Swift that she
could not leave. When Swift tried to move past Fleener, he shoved her
backward. The two then continued their argument, walking around the home
and yelling at each other. Swift eventually walked toward her bedroom.
Fleener again stood in the doorway and blocked Swift’s path. Swift’s middle
child came out of her room, cried, and held onto Swift’s leg. Swift asked
Fleener to calm down, but he continued to yell.
[6] As the argument continued, Swift went to the front of the house and attempted
to exit via a window; she opened the window, kicked the screen out, and
screamed for help. Fleener then grabbed Swift’s hair and shirt collar from
behind, dragged her away from the window, and threw her onto the floor. This
caused Swift pain and left a red mark on her neck. Swift stood up and told
Fleener to stop, but he continued to yell at Swift. Swift then took the children
into a bedroom and locked the door. Swift used her child’s iPad to send a
message to a friend, asking him to “send help.” Tr. Vol. II p. 18. That friend
then called the police.
Court of Appeals of Indiana Opinion 25A-CR-2776 July 15, 2026 Page 3 of 13 [7] Fleener received an alert on his phone notifying him that the police had been
dispatched to the area. He, therefore, knocked on the door and asked Swift to
fix her hair and come out. Swift gathered her children and came out of the
bedroom, walked past Fleener, and went out the front door. She then fled to
her father’s house, but she returned when the police arrived and reported what
had happened. Fleener fled the scene before the police arrived. He was,
however, wearing an electronic ankle monitor, 1 which enabled the police to
locate him at a convenience store.
[8] On May 27, 2025, the State charged Fleener with: Count I, criminal
confinement, a Level 5 felony; Count II, domestic battery, a Level 6 felony;
Count III, battery resulting in bodily injury, a Class A misdemeanor; and Count
IV, criminal mischief, a Class B misdemeanor. A bench trial was held on
September 26, 2025, at which the trial court found Fleener guilty as charged.
At sentencing on October 10, 2025, the trial court vacated the conviction on
Count III due to double jeopardy concerns and entered judgment of conviction
on the remaining charges. The court then sentenced Fleener as follows: Count
I, three years in the Department of Correction; Count II, a consecutive two-year
sentence to be executed on community corrections work release; and Count IV,
sixty days to be served concurrently with Count II. Fleener now appeals.
1
Fleener was on home detention at the time.
Court of Appeals of Indiana Opinion 25A-CR-2776 July 15, 2026 Page 4 of 13
Discussion and Decision
I. Sufficiency of the Evidence
[9] Fleener first claims that the State failed to present sufficient evidence to support
his conviction for criminal confinement. Sufficiency of the evidence claims
warrant a deferential standard of review in which we “neither reweigh the
evidence nor judge witness credibility, instead reserving those matters to the
province of the [fact-finder].” Hancz-Barron v. State, 235 N.E.3d 1237, 1244
(Ind. 2024). A conviction is supported by sufficient evidence if “there is
substantial evidence of probative value supporting each element of the offense
such that a reasonable trier of fact could have found the defendant guilty
beyond a reasonable doubt.” Id. In conducting this review, we consider only
the evidence that supports the fact-finder’s determination, not evidence that
might undermine it. Id. It is not necessary that the evidence overcome every
reasonable hypothesis of innocence; instead, the evidence is sufficient if an
inference may reasonably be drawn from it to support the verdict. Drane v.
State, 867 N.E.2d 144, 146-47 (Ind. 2007).
[10] To convict Fleener of criminal confinement, the State had to prove that he
“knowingly or intentionally confine[d] another person without the other
person’s consent.” Ind. Code § 35-42-3-3(a). The offense is elevated to a Level
5 felony if “it results in bodily injury to a person other than the confining
person.” Id. § 3(b)(1)(C).
Court of Appeals of Indiana Opinion 25A-CR-2776 July 15, 2026 Page 5 of 13 [11] The evidence most favorable to the trial court’s judgment shows that, when
Swift attempted to escape the house through the window, Fleener approached
her from behind, grabbed her by the hair and collar, and threw her onto the
floor. From this evidence, the trial court, acting as the trier of fact, could
reasonably conclude that Fleener knowingly or intentionally confined Swift
without her consent.
[12] As to the element of bodily injury, Swift testified that, when Fleener grabbed
her hair and collar, this caused her “a little” pain “on my hairline in the back.”
Tr. Vol. II p. 17. Our Supreme Court has held that “any degree of physical
pain may constitute a bodily injury. . . .” Bailey v. State, 979 N.E.2d 133, 142
(Ind. 2012); see also Ind. Code § 35-31.5-2-29 (“‘Bodily injury’ means any
impairment of physical condition, including physical pain.”). Accordingly,
Swift’s testimony that Fleener’s actions caused her a little pain is sufficient to
establish the element of bodily injury.
[13] Fleener’s citation to McFadden v. State, 25 N.E.3d 1271 (Ind. Ct. App. 2015), is
unavailing. In that case, there was no evidence of confinement beyond the
defendant’s battery of the victim, which was established by evidence that the
defendant “pushed, hit, and kicked [the victim] and pulled his hair.” Id. at
1274. Nor did the victim testify that he felt confined. Id. Thus, there was no
evidence independent of the battery that supported the confinement. Id.
[14] We find the present case to be more like Mickens v. State, 115 N.E.3d 520 (Ind.
Ct. App. 2018). In that case, we rejected the defendant’s claim that his
Court of Appeals of Indiana Opinion 25A-CR-2776 July 15, 2026 Page 6 of 13
confinement of the victim was merely incidental to the battery, as was the case
in McFadden. We distinguished the holding in McFadden because it was based
on the “removal” subsection of the criminal confinement statute that has since
been eliminated. Mickens, 115 N.E.3d at 524. Instead, as here, the defendant in
Mickens was charged with “confining” the victim without her consent, not
removing her from one place to another. Id. For this reason alone, McFadden is
not controlling.
[15] Moreover, Mickens held that there was sufficient evidence of confinement
independent of the battery. Id. Specifically, the defendant threw a plate at the
victim and ordered her to leave, and when she refused, he threw her belongings
onto the lawn, dragged her out of the house by her hair, stomped on her leg,
grabbed her again, and dragged her back to the front door. Id. Relying on this
course of conduct rather than the battery alone, the Mickens Court concluded
the trier of fact could reasonably find that the defendant “substantially
interfered with [the victim]’s liberty without her consent.” Id.
[16] The same is true here. The evidence shows that Fleener confined Swift by
grabbing her, preventing her from escaping through the window, and throwing
her onto the floor. This conduct went beyond, and did not depend on, the
earlier push that formed the basis of the domestic battery charge. Accordingly,
we conclude that the State presented sufficient evidence to support Fleener’s
conviction for criminal confinement resulting in bodily injury, a Level 5 felony.
Court of Appeals of Indiana Opinion 25A-CR-2776 July 15, 2026 Page 7 of 13
II. Double Jeopardy
[17] Fleener also claims that his convictions for domestic battery and criminal
confinement constitute substantive double jeopardy. 2 This inquiry differs from
the one we resolved in Part I. There, we asked whether the evidence, viewed in
the light most favorable to the verdict, was independently sufficient to support
each element of confinement. Here, we ask whether Fleener’s convictions for
criminal confinement and domestic battery—even though each is adequately
supported by sufficient evidence—nonetheless punish him twice for a single
criminal transaction. That question turns on a different analysis. And, here,
the parties agree that the double jeopardy analysis in this case is governed by
the three-part test set forth by our Supreme Court in Wadle v. State, 151 N.E.3d
227 (Ind. 2020), as modified by A.W. v. State, 229 N.E.3d 1060, 1066 (Ind.
2024). We review claims of double jeopardy de novo. See Wadle, 151 N.E.3d
at 237.
Wadle Step 1
[18] In the first step of the Wadle analysis we consider “[i]f either statute clearly
permits multiple punishment, whether expressly or by unmistakable
implication.” Id. at 253. If so, our “inquiry comes to an end and there is no
2
The State initially claims that Fleener waived his double jeopardy argument by failing to present it to the
trial court. The State correctly notes that the trial court provided Fleener with an opportunity to explain
which counts should be vacated on double jeopardy grounds, yet Fleener argued only that Count III, the
misdemeanor battery conviction, should be vacated. We have held, however, that double jeopardy claims
can be raised for the first time on appeal, or even by this Court sua sponte, because double jeopardy implicates
fundamental rights. Moore v. State, 181 N.E.3d 442, 446 (Ind. Ct. App. 2022). We, therefore, address the
merits of Fleener’s double jeopardy argument.
Court of Appeals of Indiana Opinion 25A-CR-2776 July 15, 2026 Page 8 of 13
violation of substantive double jeopardy.” Id. If, however, the statutory
language is not clear, “then [we] must apply our included-offense statutes to
determine whether the charged offenses are the same.” Id.
[19] Here, both parties agree that there is nothing in the statutes defining criminal
confinement and domestic battery that clearly permits multiple punishment.
See I.C. § 35-42-3-3(a), (b)(1)(C) (defining criminal confinement as a Level 5
felony); Ind. Code §§ 35-42-2-1.3(a)(1), (b)(2) (defining domestic battery as a
Level 6 felony). 3 We agree and, therefore, proceed to Step 2.
Wadle Step 2
[20] At Step 2, we ask whether the offenses are included either inherently or “as
charged,” also known as “factually included.” A.W., 229 N.E.3d at 1067. As
clarified in A.W., if there are ambiguities in a charging instrument as to whether
one offense is factually included in the other, we must construe any such
ambiguity in the defendant’s favor and “find a presumptive double jeopardy
violation at Step 2.” Id. at 1069. The State can rebut this presumptive double
jeopardy violation at Step 3. Id.
3
The operative language of the criminal confinement statute provides: “A person who knowingly or
intentionally confines another person without the other person’s consent commits criminal confinement.”
Ind. Code § 35-42-3-3(a). The offense is elevated to a Level 5 felony if “it results in bodily injury to a person
other than the confining person.” Id. § 3(b)(1)(C). The operative language of the domestic battery statute
provides: “a person who knowingly or intentionally . . . touches a family or household member in a rude,
insolent, or angry manner . . . commits domestic battery.” Ind. Code § 35-42-2-1.3(a)(1). The offense is
elevated to a Level 6 felony if the defendant is “at least eighteen (18) years of age” and the offense is
committed “in the physical presence of a child less than sixteen (16) years of age, knowing that the child was
present and might be able to see or hear the offense.” Id. § 1.3(b)(2).
Court of Appeals of Indiana Opinion 25A-CR-2776 July 15, 2026 Page 9 of 13 [21] Here, neither party contends that domestic battery is inherently included in
criminal confinement or vice versa. We agree. See note 3, supra. The question
then becomes whether the offenses are factually included. As to criminal
confinement, the charging information here provided:
On or about May 23, 2025, [Fleener] did knowingly confine
Donnette Lynn Swift without the consent of Donnette Lynn
Swift, said act resulting in bodily injury to Donnette Lynn Swift,
to-wit: bruising, and/or abrasion, and/or scratch, and/or pain[.]
Appellant’s App. Vol. II p. 17. As to the domestic battery, the information
provided:
On or about May 23, 2025, [Fleener], being at least eighteen (18)
years of age, did knowingly touch Donnette Lynn Swift, a family
or household member, in a rude, insolent, or angry manner and
[Fleener] committed said offense in the presence of a child less
than 16 years of age, knowing that the child was present and
might be able to see or hear the offense[.]
Id.
[22] The State concedes that the charging information is ambiguous as to whether
the domestic battery offense is a factually included offense of the criminal
confinement offense. Based on A.W., we agree. That is, based on the language
of the charging information, “it is conceivable” that, while Fleener was
confining Swift, he also touched her in a rude, insolent, or angry manner. See
A.W., 229 N.E.3d at 1070. We, therefore, presume a double jeopardy violation
and proceed to Step 3, where the State may rebut this presumption. See id.
Court of Appeals of Indiana Opinion 25A-CR-2776 July 15, 2026 Page 10 of 13
Wadle Step 3
[23] At Step 3, we consider whether the facts demonstrate that 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.” Wadle, 151 N.E.3d at
253. If so, the defendant’s convictions constitute double jeopardy. Id.
[24] The State claims that Fleener committed the domestic battery offense by
pushing Swift by the front door, which occurred before Fleener confined Swift
by dragging her away from the window and throwing her on the floor to
prevent her escape. Thus, the State argues, the battery was not part of the same
criminal transaction as the confinement. 4
[25] We observe, however, that during closing argument, the State relied on the
same “pushing, pulling and dragging” to establish both confinement and
battery. The deputy prosecutor stated during closing argument:
[I]t was [Fleener’s] act in the pushing and the pulling and in the
dragging of him confining [Swift] to the living room that caused
those injuries to her body. That abrasion and those scratches and
then like she said the pain when she was pulled down by her
collar.
Along with that, that kind of leads right into the domestic battery
charge. There’s no question they were a family or household
member under the statute. They do have a child together and
both admit that they were living together at the time. We do
4
We find the State’s reliance on Boatright v. State, 759 N.E.2d 1038 (Ind. 2001), and Hopkins v. State, 747
N.E.2d 598 (Ind. Ct. App. 2001), to be unavailing, as both of those cases were decided under the Richardson
actual evidence test, which was abrogated by Wadle.
Court of Appeals of Indiana Opinion 25A-CR-2776 July 15, 2026 Page 11 of 13
know that the – this act was all done in a rude, insolent or angry
manner. There’s no way really to pull somebody and push them
around the way that he did in a way that is anything other than
angry. . . .
Tr. Vol. II p. 86. Thus, the prosecutor did not sufficiently distinguish the
conduct supporting each count.
[26] Fleener’s acts occurred during the same argument, on the same morning, 5 and
at the same house. Fleener’s actions were “so compressed in terms of time,
place, singleness of purpose, and continuity of action as to constitute a single
transaction.” Wadle, 151 N.E.3d at 253. Fleener’s convictions for both
criminal confinement and domestic battery, therefore, constitute substantive
double jeopardy. 6
[27] We, therefore, reverse Fleener’s conviction for the lesser offense of domestic
battery, see Bradshaw v. State, 239 N.E.3d 864, 869 (Ind. Ct. App. 2024), and
remand with instructions that the trial court vacate the conviction and sentence
entered on that count.
5
The argument began after Swift returned home after dropping her oldest child off at school. The doorbell
camera video, which was admitted into evidence, shows Swift leaving the home at 9:57 a.m.
6
We find the State’s citation to Brewer v. State, 241 N.E.3d 19 (Ind. Ct. App. 2024), to be unavailing. In that
case, we concluded at Step 2 that neither robbery nor intimidation was an included offense of the other and
expressly declined to proceed to Step 3. Id. at 26. We then noted that the two offenses would not constitute
a single transaction even if we reached Step 3. Id. at 26-27. Our discussion of Step 3 was, therefore, dicta.
Moreover, the defendant in Brewer committed the robbery through one set of acts—entering the victim’s
camper with a gun, pointing the gun, and striking her—and the intimidation through a distinct, later act—an
explicit threat to coerce her into opening a safe, made after a long standoff. In contrast, here, all of Fleener’s
criminal acts occurred during a short span of time on the same morning, at the same house, and involving the
same victim.
Court of Appeals of Indiana Opinion 25A-CR-2776 July 15, 2026 Page 12 of 13
Conclusion
[28] The State presented sufficient evidence to support Fleener’s conviction for
criminal confinement, a Level 5 felony. Fleener’s convictions for both criminal
confinement and domestic battery, however, constitute substantive double
jeopardy, and we reverse Fleener’s conviction for domestic battery and remand
with instructions that the trial court vacate the conviction and sentence entered
on that count.
[29] Affirmed in part, reversed in part, and remanded.
Weissmann, J., and Foley, J., concur.
ATTORNEY FOR APPELLANT
Willow Thomas
Marion County Public Defender Agency
Appellate Division
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Andrew M. Sweet
Deputy Attorney General
Indianapolis, Indiana
Court of Appeals of Indiana Opinion 25A-CR-2776 July 15, 2026 Page 13 of 13