Willie F. Terrell Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] After Willie Terrell Jr.’s children were removed from his custody, he kidnapped them during a supervised visit and took them to Texas. Once apprehended, Terrell was charged with and convicted of multiple counts of kidnapping and interfering with custody. Terrell now appeals his convictions, presenting three issues for our review:

1. Whether the kidnapping statute is unconstitutionally vague;

2. Whether the State presented sufficient evidence to support Terrell's kidnapping convictions; and

3. Whether Terrell's convictions for kidnapping and interfering with custody violate Indiana's prohibition against double jeopardy.

[2] We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[3] This case begins not with the criminal conduct for which Terrell was charged and convicted, but with his family's involvement with the Indiana Department of Child Services (“DCS”). In July 2023, Terrell was married to Jessika Terrell (“Wife”), they shared three young children (the “Children”),¹ and they were living with the Children in Michigan City, Indiana. On July 24, DCS filed a petition alleging each of the Children was a child in need of services (“CHINS”) because their medical needs were not being met. After Terrell failed to appear at the first two hearings and appeared only via telephone at the third hearing in the CHINS matter, the trial court ordered Terrell and Wife to “produce the children to DCS so that DCS may ensure the safety and well-being of the children,” Ex. Vol. I at 15. Neither Terrell nor Wife complied with that order, and they did not appear for the CHINS factfinding hearing in September. In Terrell and Wife's absence, the trial court adjudicated the Children as CHINS and entered dispositional orders confirming the Children's removal from Terrell and Wife's care as well as requiring their visits with the Children be supervised by a third-party provider. The trial court also issued writs of attachment for both Terrell and Wife.

[4] It was not until March 2024 that Terrell, Wife, and the Children were located in Illinois. The Children were removed from Terrell and Wife's care and placed with Wife's parents, James and Patricia Officer, in Indianapolis. Thereafter, Terrell and Wife had visits with the Children that were supervised by third-party providers. Shortly before July 2, 2024, Terrell and Wife received permission from DCS to visit the Children on July 2, with James to supervise instead of a third-party provider. On July 3, Terrell and Wife received permission from DCS to visit the Children on July 4, with James to again supervise the visit instead of a third-party provider. Before that visit, DCS explained to both Terrell and Wife that DCS “would have a third-party provider put in place” for future visits. Tr. Vol. III at 166.

[5] Midday on July 4, James took the Children to visit Terrell and Wife at an Indianapolis restaurant. When Terrell and Wife arrived, James handed off the youngest child to Wife and told them he was “going to run to the restroom.” Tr. Vol. IV at 14. On his way to the restroom, James changed course and went to his vehicle to retrieve the Children's diaper bag. James's vehicle “was 100 feet away from” the restaurant's front door, and when he “came back, [ ] they were gone․ Willie, Jessika, K.T., F.T., and Q.T. were gone.” Id. at 15. James had been away from the Children for “a whole two minutes.” Id. at 27. During that two minutes, Terrell and Wife had taken the Children out the side door of the restaurant and to their car that was parked in an adjacent lot. Once James was back in the restaurant and did not see Terrell, Wife, or the Children, he called DCS, and at DCS's instruction, he called 911. DCS and law enforcement attempted to reach out to Terrell and Wife but were unsuccessful.

[6] On July 8, Indiana law enforcement located Terrell's phone in southern Texas. At approximately noon the next day, Texas law enforcement located Terrell's vehicle at a motel in Pearsall, Texas. They began to surveil the vehicle and closest motel room near the vehicle. Several hours later, Terrell left the motel room and drove his vehicle to a nearby restaurant; law enforcement attempted to perform a traffic stop, but Terrell fled the scene in his vehicle. After a brief chase, Terrell drove back to the motel; ran back in the room that he, Wife, and the Children were staying in; and locked the door. A standoff ensued, during which Terrell told the negotiator that “their plan was to go to Mexico and let nature take its course.” Tr. Vol. IV at 103. Six-and-a-half-hours after the standoff began, it ended “peacefully, safely.” Id. at 80. Terrell and Wife were arrested, and the Children were returned to Indiana.

[7] The State charged Terrell with three counts of kidnapping as Level 5 felonies,² three counts of criminal confinement as Level 5 felonies,³ and three counts of interference with custody as Level 6 felonies ⁴ . A jury convicted Terrell as charged. The trial court vacated the three criminal confinement convictions due to double jeopardy concerns, and it sentenced Terrell to a total of 13 years of incarceration on the remaining six convictions. This appeal ensued.

Discussion and Decision

1. Terrell Has Waived for Appellate Review His Claim that Indiana's Kidnapping Statute is Unconstitutionally Vague

[8] Terrell contends his kidnapping convictions must be reversed because the term “fraud” in the kidnapping statute is unconstitutionally vague. We cannot reach the merits of this claim because Terrell has waived it. In particular, Terrell failed to challenge the kidnapping statute as unconstitutionally vague at the trial level, and he has failed to present cogent argument on appeal. We address each type of waiver in turn.

[9] First, Terrell did not challenge his kidnapping convictions on constitutional grounds at the trial level. Indiana's appellate courts have been clear that a defendant's “failure to challenge the constitutionality of a statute at trial results in waiver of review on appeal.” Jackson v. State, 165 N.E.3d 641 (Ind. Ct. App. 2021) (quoting Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53–54 (Ind. 2013)), trans. denied; see also Kimbrough v. State, 240 N.E.3d 1280, 1282 (Ind. Ct. App. 2024) (collecting cases), trans. not sought; Gates v. State, 192 N.E.3d 222, 225 (Ind. Ct. App. 2022) (citing Rhinehardt v. State, 477 N.E.2d 89, 93 (Ind. 1985)); Albrecht v. State, 185 N.E.3d 412, 424–25 (Ind. Ct. App. 2022) (quoting Wells v. State, 848 N.E.2d 1133, 1146 (Ind. Ct. App. 2006)), trans. denied. To preserve a vagueness challenge to a criminal statute, the defendant must file a motion to dismiss on that basis prior to trial or otherwise challenge the statute on that basis at trial. Gates, 192 N.E.3d at 225 (citing Rhinehardt, 477 N.E.2d at 93); Albrecht, 185 N.E.3d at 424–25 (quoting Wells, 848 N.E.2d at 1146). Terrell therefore waived his vagueness challenge for our review.

[10] Second, even if we were to ignore Terrell's waiver for failure to properly challenge the kidnapping statute at the trial level or if we were to otherwise conduct a fundamental error analysis, Terrell has failed to present cogent argument sufficient for us to review his claim. “Vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis.” Morgan v. State, 22 N.E.3d 570, 574 (Ind. 2014) (alteration in original) (emphases added) (quoting Maynard v. Cartwright, 486 U.S. 356, 361 (1988)); see also Steury v. State, 243 N.E.3d 1108, 1114–15 (Ind. Ct. App.) (quoting Gates, 192 N.E.3d at 225) (“A statute is only void for vagueness if it is vague as applied to the precise circumstances of the case giving rise to the challenge ․”), trans. denied, 248 N.E.3d 1226 (Ind. 2024). Terrell specifically challenges the term “fraud” in Indiana Code section 35-42-3-2(a) as unconstitutionally vague. But Terrell does not explain how Indiana's kidnapping statute and its use of “fraud” is unconstitutionally vague as applied to him. See Morgan, 22 N.E.3d at 574 (quoting Maynard, 486 U.S. at 361); Brown v. State, 868 N.E.2d 464, 467 (Ind. 2007) (citing State v. Lombardo, 738 N.E.2d 653, 656 (Ind. 2000)) (“[E]xamination of a vagueness challenge is performed in light of the facts and circumstances of each individual case.”). Without cogent argument, we cannot render a decision on the merits of Terrell's vagueness challenge. See Ind. Appellate Rule 46(A)(8)(a) (requiring “cogent reasoning”); Miller v. Patel, 212 N.E.3d 639, 657 (Ind. 2023) (quoting Dridi v. Cole Kline LLC, 172 N.E.3d 361, 364 (Ind. Ct. App. 2021)) (“We will not step in the shoes of the advocate and fashion arguments on his behalf, ‘nor will we address arguments’ that are ‘too poorly developed or improperly expressed to be understood.’ ”). Consequently, we cannot say that Indiana's kidnapping statute is unconstitutionally vague as applied to Terrell in this case.

2. The State Presented Sufficient Evidence to Support Terrell's Kidnapping Convictions

[11] Terrell argues that the State presented insufficient evidence at trial to support his convictions for kidnapping as Level 5 felonies. Our standard of review for such a claim is as follows:

Our standard for reviewing evidentiary sufficiency challenges is well established, as we have made clear that “[i]t is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction.” Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024) (quoting Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)). “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.’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015)). This Court reviews only the evidence most favorable to the verdict and the reasonable inferences therefrom, and will reverse only where it is shown that “no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Teising, 226 N.E.3d at 783.

Konkle v. State, 253 N.E.3d 1068, 1090–91 (Ind. 2025).

[12] To convict Terrell of Level 5 felony kidnapping under Indiana Code section 35-42-3-2(a) and (b)(1)(B) as charged, the State had to prove beyond a reasonable doubt that Terrell knowingly or intentionally removed another person by fraud or force from one place to another and used a vehicle to do so. Terrell argues that the State did not present sufficient evidence from which the jury could have determined that he used force to effectuate kidnapping his children. However, the State alleged in the charging information that Terrell used “fraud and/or force” to remove his children from the restaurant, Appellant's App. Vol. II at 103, the State presented evidence of Terrell's use of fraud at trial, and the State argued he used fraud during closing argument. Because Terrell does not argue that the State failed to present sufficient evidence to support his kidnapping conviction based on fraud, because Terrell's constitutional vagueness argument failed, and because we review only the evidence most favorable to the verdict and the reasonable inferences therefrom, we cannot say the State failed to present sufficient evidence to support Terrell's kidnapping convictions.

3. Terrell's Convictions for Kidnapping and Interference with Custody Violate Indiana's Protections Against Double Jeopardy

[13] Terrell contends his convictions for kidnapping as Level 5 felonies and for interference with custody as Level 6 felonies are contrary to Indiana's protections against double jeopardy. We review such questions de novo. A.W. v. State, 229 N.E.3d 1060, 1064 (Ind. 2024) (citing Wadle v. State, 151 N.E.3d 227, 237 (Ind. 2020); Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020)).

[14] Indiana's protection against substantive double jeopardy prohibits “multiple convictions for the same offense in a single proceeding.” A.W., 229 N.E.3d at 1066. To determine if a substantive double jeopardy violation has occurred, we apply a “three-part test based on statutory sources.” Id. First, we look to the statutory language of the offenses at issue; if that language “clearly permits multiple punishments,” then “there is no violation of substantive double jeopardy” and we end our analysis. Id. (quotation marks omitted). Second, we assess whether the charges are inherently included or factually included as charged. Id. at 1068. When “ ‘neither offense is an included offense of the other (either inherently or as charged) there is no violation of double jeopardy and the analysis ends’—full stop.” Id. at 1067 (quoting Wadle, 151 N.E.3d at 248). Third, we “examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial.” Id. at 1071 (emphasis omitted) (quoting Wadle, 151 N.E.3d at 249).

[15] Terrell specifically argues that his kidnapping convictions were included in his interference with custody convictions. The parties agree that the statutory language of kidnapping as a Level 5 felony and of interference with custody as a Level 6 felony do not clearly permit multiple punishments. We therefore proceed to step two of our analysis.

[16] In the second step of our analysis, we first “apply our included-offense statutes” to determine if one offense is inherently included in the other. A.W., 229 N.E.3d at 1066 (quoting Wadle, 151 N.E.3d at 248). Terrell does not argue that the Level 5 felony kidnapping charges are inherently included in the Level 6 felony interference with custody charges, so we assume for purposes of this opinion that they are not and proceed to determine whether the former are factually included in the latter, see id. at 1067.

[17] As instructed by the majority in A.W.: “[W]hen assessing whether an offense is factually included, a court may examine only the facts as presented on the face of the charging instrument. This includes examining the ‘means used to commit the crime charged,’ which must ‘include all of the elements of the alleged lesser included offense.’ ” 229 N.E.3d at 1067 (emphasis in original) (quoting Wadle, 151 N.E.3d at 251 n.30). This assessment also requires us to determine if there is any ambiguity in the charging informations. Id. at 1070. An ambiguity exists if it is “conceivable” that a fact not included in the charging information could have happened. Id. If an ambiguity exists, we “must construe those ambiguities in the defendant's favor, and thus find a presumptive double jeopardy violation.” Id. at 1069. In other words, if any conceivable facts from one charge include all the elements of the other charge, then the charging information is ambiguous and we must presume a double jeopardy violation. Id.

[18] To determine if the charges are factually included or whether any ambiguity exists here, we review the charging information. For the interference with custody counts, the charging information reads in relevant part as follows:

On or about July 4, 2024, WILLIE TERRELL with the intent to deprive another person of child custody rights, did knowingly remove F[.]T[.], a person under the age of eighteen, to wit: 4, to a place outside of Indiana, to-wit: Texas; such removal being in violation of a child custody court order ․

Appellant's App. Vol. II at 102–03.⁵ For the kidnapping counts, the charging information reads in relevant part as follows:

On or about July 4, 2024, WILLIE TERRELL did knowingly remove F[.]T[.] by, fraud and/or force and by using a vehicle, to-wit: a white Pontiac SUV from one place to another place ․

Id. at 103.⁶

[19] Looking first to the means used to commit the two crimes, the charging information for the interference charges provides that the means Terrell used to interfere with custody was removing the Children from Indiana. The charging information for the kidnapping charges provides that the means Terrell used to kidnap the Children were twofold: (1) “fraud and/or force,” and (2) “using a vehicle.” Appellant's App. Vol. II at 103. It is conceivable, as Terrell argues, that the means used to commit the interference with custody charges—removal—included all the elements of the kidnapping charges—removal by “fraud and/or force” and by using a vehicle. It is also conceivable that the removal from Indiana to Texas as alleged in the interference with custody charges included the removal from “one place to another place” as alleged in the kidnapping charge. The charging informations are therefore ambiguous,⁷ so we must conclude there is a presumptive double jeopardy violation, see A.W., 229 N.E.3d at 1069, and move to the third and final step of our analysis.

[20] Under step three, the State bears the burden of rebutting the presumptive double jeopardy violation by using the facts presented at trial to demonstrate a “distinction between what would otherwise be two of the ‘same’ offenses.” A.W., 229 N.E.3d at 1071. It is at this step that we “probe the underlying facts—as presented in the charging instrument and adduced at trial—to determine whether a defendant's actions were ‘so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.’ ” Id. (quoting Wadle, 151 N.E.3d at 249). “If the underlying facts reveal the two offenses are indeed ‘separate,’ ” there is no double jeopardy violation. A.W., 229 N.E.3d at 1071 (quoting Wadle, 151 N.E.3d at 249). If, however, the “facts show only a single continuous crime, and one statutory offense is included in the other,” the State may not obtain cumulative convictions. Id. (quoting Wadle, 151 N.E.3d at 249).

[21] Terrell argues that step three shows his convictions for kidnapping were part of the same transaction as the interferences with custody. The State makes no argument on appeal that it is able to satisfy the requirements of step three. See App. R. 46(A)(8)(a). Accordingly, the State failed to rebut the presumptive double jeopardy violation. See A.W., 229 N.E.3d at 1071. Terrell has therefore established that the trial court violated his substantive double jeopardy rights when it entered its judgment of conviction for both kidnapping and interference with custody. In this scenario, we reverse “the conviction with the lesser penalty,” Eversole v. State, 251 N.E.3d 604, 609 (Ind. Ct. App.) (citing Wadle, 151 N.E.3d at 256), trans. denied, 259 N.E.3d 998 (Ind. 2025),⁸ that is, Terrell's convictions for interference with custody.

Conclusion

[22] In sum, Terrell has waived his claim that Indiana's kidnapping statute is unconstitutionally vague, and he has not demonstrated that the State failed to present sufficient evidence to support his kidnapping convictions; however, Terrell has established that his interference with custody and kidnapping convictions violate Indiana's prohibition against substantive double jeopardy. We therefore reverse Terrell's interference with custody convictions and accompanying sentences, and we remand to the trial court with instructions to vacate those convictions and sentences. We affirm the trial court on all other issues raised.

[23] Affirmed in part, reversed in part, and remanded with instructions.

FOOTNOTES

1.   F.T., born April 20, 2020; Q.T., born July 2, 2021; and K.T., born July 31, 2022.

2.   Ind. Code § 35-42-3-2(a), (b)(1)(B).

3.   I.C. § 35-42-3-3(a), (b)(1)(B).

4.   I.C. § 35-42-3-4(a)(1).

5.   The charging information is identical for all three interference with custody counts except for the name and age of the child who was removed. See Appellant's App. Vol. II at 102–03.

6.   The charging information is identical for all three kidnapping counts except for the name of the child who was removed. See Appellant's App. Vol. II at 103.

7.   To potentially avoid the determination that the charging information was ambiguous, the State could have been more specific about, among other things, the means Terrell used to commit the interference with custody charges or the locations he removed the Children from and to for the kidnapping charges.

8.   In Eversole v. State, this court determined that Vernon Eversole's conviction for murdering David Caroll was factually included in his conviction for attempting to rob Carroll, a Level 2 felony, because the charging information for murder did not specify a means used whereas the charging information for attempted robbery “identified a series of alternative factual predicates,” including Eversole using force and firing a handgun at Carroll. 251 N.E.3d 604, 608 (Ind. Ct. App.), trans. denied, 259 N.E.3d 998 (Ind. 2025). “[O]ne cannot tell from the face of the charging instrument whether the means used to commit the attempted robbery was necessarily something other than the murder.” Id. This ambiguity gave rise to a presumptive double jeopardy violation that the State failed to rebut on appeal. Id. at 609. Although Eversole's murder conviction was included in his attempted robbery conviction, this court vacated Eversole's attempted robbery conviction because it carried the lesser penalty. Id.

Felix, Judge.

Judge Vaidik concurs. Judge Tavitas concurs in result without opinion. Vaidik, J., concurs. Tavitas, J., concurs in result without opinion.