ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Jennifer A. Joas                                            Gregory F. Zoeller
Madison, Indiana                                            Attorney General of Indiana

                                                            Richard C. Webster
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana


______________________________________________________________________________



                                   In the
                           Indiana Supreme Court
                                                                                 Sep 01 2015, 3:31 pm


                              _________________________________

                                      No. 39S05-1509-CR-517

GARY ALLEN GIBSON,
                                                            Appellant (Defendant below),

                                                v.

STATE OF INDIANA,
                                                            Appellee (Plaintiff below).

                              _________________________________

                   Appeal from the Jefferson Circuit Court, No. 39C01-1308-FB-845
                              The Honorable Darrell M. Auxier, Judge
                              _________________________________

      On Petition to Transfer from the Indiana Court of Appeals, No. 39A05-1404-CR-156
                            _________________________________

                                        September 1, 2015

Per Curiam.

        Following a physical altercation with another man, Gary Allen Gibson was charged with
one count of aggravated battery, two counts of criminal confinement by removal, and one count
of battery resulting in serious bodily injury. A jury acquitted Gibson on one of the confinement
counts, but convicted him on the other three counts. Due to double jeopardy concerns, the trial
court entered judgment for only two counts, class B felony aggravated battery and class D felony
criminal confinement. The trial court sentenced Gibson to sixteen years’ incarceration on the
battery conviction and two and one-half years on the confinement conviction, with the sentences
to be served concurrently.


        Gibson appealed on numerous grounds, and the Court of Appeals affirmed Gibson’s
convictions and sentence in full. Gibson v. State, No. 39A05-1404-CR-156 (Ind. Ct. App. Jan.
30, 2015). Gibson seeks transfer, contending, among other things, that there is insufficient
evidence to support his confinement conviction.


        Gibson was charged with and convicted of confinement by removal under Indiana Code
section 35-42-3-3(a)(2).1      Gibson’s charging information provided that he “did knowingly
remove [the victim] by force or threat of force by pulling [the victim] to the ground and battering
him.” (Appellant’s App. at 83.) The jury instruction for this count mirrored the language of
section 3(a)(2) of the statute. (Appellant’s App. at 173.)


        We agree with Gibson that there was insufficient evidence to support his conviction for
criminal confinement under section 3(a)(2). Accordingly, we grant transfer and reverse Gibson’s
criminal confinement conviction and concurrent two and one-half year sentence. In all other
respects we summarily affirm the Court of Appeals’ decision. See Ind. Appellate Rule 58(A)(2).


All Justices concur.




1
  At the time of Gibson’s offense, the criminal confinement statute provided in pertinent part:
         A person who knowingly or intentionally:
         (1) confines another person without the other person’s consent; or
         (2) removes another person, by fraud, enticement, force, or threat of force, from one (1)
             place to another;
         commits criminal confinement.
Ind. Code § 35-42-3-3(a) (2011).
