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FOR PUBLICATION

FILED
Dec 31 2008, 9:21 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: CHARLES W. LAHEY South Bend, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana JANINE STECK HUFFMAN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
BART A. DEWALD, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 20A04-0805-CR-311

APPEAL FROM THE ELKHART SUPERIOR COURT The Honorable George W. Biddlecome, Judge Cause No. 20D03-0612-FD-43

December 31, 2008 OPINION - FOR PUBLICATION VAIDIK, Judge

Case Summary After a jury trial, Bart A. Dewald was convicted of two counts of Class D felony criminal confinement. On appeal, he challenges the sufficiency of the evidence to

support his convictions. First, he contends that the evidence does not show that he confined the victims and, in any event, confining them was not illegal because he had the authority to detain the victims in order to effectively perform his job. Second, he argues that the evidence fails to show that he acted knowingly because he believed that he acted within his authority. Concluding that the evidence is sufficient in both of these regards and that Dewald was not authorized to detain the victims, we affirm. Facts and Procedural History In June 2006, Dewald and Constantine Nichols were both bail bondsmen and fugitive recovery agents in Indiana. In the course of his work as a bail bondsman, Dewald posted a bond for an individual named Evelyn Mitchell. Mitchell owned a 2001 Chrysler Town and Country minivan that looked green or blue, depending upon lighting conditions. Vol. I Tr. p. 60-61.1 On June 14, 2006, Dewald received a tip that Mitchell planned to flee from Indiana. He called Nichols to ask for assistance in locating and apprehending Mitchell. Nichols agreed to help in exchange for payment. Nichols met Dewald at a restaurant in Goshen, where Dewald provided him with information about Mitchell`s bond and a black and white photograph of her. After this brief meeting, Nichols drove toward Mitchell`s parents` residence, while Dewald drove to Mitchell`s house.
The court reporter for the trial court did not consecutively number the pages of the transcript regardless of the number of volumes as required by Indiana Appellate Rule 28(A)(2); therefore, citations to the transcript are referred to by their volume number and the page number within that volume.
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While Dewald watched Mitchell`s house, a light-colored minivan pulled up to the house, dropped off a child, and then drove away. Dewald called Nichols to alert him that a van had just stopped at the residence and took off at a high rate of speed. And he thought that he was going to follow, because he suspected that, possibly, . . . [Mitchell] was in that van; he wasn`t sure. Vol. II Tr. p. 49. Nichols joined Dewald in pursuit of the minivan. He passed the minivan, while Dewald followed it closely. Once in front of the minivan, Nichols braked, forcing the minivan, which had been traveling thirty-five to forty miles per hour, to quickly brake and stop. Nichols` vehicle was several feet in front of the stopped minivan, and Dewald pulled up in his vehicle about two feet behind the minivan. This prevented the driver of the minivan from pulling away. Vol. I. Tr. p. 7980; Vol. II Tr. p. 14. Dewald and Nichols exited their vehicles and walked to the front of the minivan. Dewald stood on the driver`s side, while Nichols stood on the passenger`s side. They encountered two women, neither of whom was Mitchell, sitting in the front seat. In fact, the minivan belonged to Oaklawn Psychiatric Center, and the two women inside of the minivan were child therapists employed by Oaklawn. The therapists, Sara Trovatore and Marilyn Draper, were transporting children to and from therapy sessions in the minivan, and they had just dropped off a child at Mitchell`s residence. When Dewald and Nichols stopped them, Trovatore and Draper still had one child patient in the minivan. Dewald and Nichols began questioning Trovatore and Draper about Mitchell`s whereabouts. Trovatore informed the men that she did not know where Mitchell was. Vol. I Tr. p. 81. However, Dewald and Nichols continued questioning the women. Id. 3

Dewald asked Trovatore to call Mitchell and to tell her that something bad had happened to her son and that she needed to come home. Id. at 91. Trovatore refused to do so. Id. Eventually, Dewald and Nichols commented that they were wasting their time and left. Vol. II Tr. p. 22. The entire incident lasted between five and ten minutes. Vol. I Tr. p. 94. Later, Draper reported the incident to her supervisor at Oaklawn, and Trovatore reported the incident to police. Id. at 97; Vol. II Tr. p. 24-25. The State charged Dewald with two counts of Class D felony criminal confinement.2 Ind. Code

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