Lindoro Hector Hernandez-Marquez, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Lindoro Hector Hernandez-Marquez (“Hernandez-Marquez”) was convicted after a jury trial of five counts of rape,¹ each as a Level 3 felony; one count of battery resulting in serious bodily injury,² a Level 5 felony; two counts of criminal confinement,³ each as a Level 5 felony; two counts of kidnapping,⁴ each as a Level 5 felony; one count of battery resulting in bodily injury,⁵ a Class A misdemeanor; and one count of interference with the reporting of a crime,⁶ a Class A misdemeanor. Hernandez-Marquez was sentenced to an aggregate term of twenty-three years executed in the Indiana Department of Correction (“the DOC”). On appeal, he raises one issue, which we restate as: whether his convictions for both criminal confinement and kidnapping violate the protections against double jeopardy. We reverse and remand.

Facts and Procedural History

[2] Hernandez-Marquez and M.G. met in August 2023 at the restaurant where M.G. worked. Hernandez-Marquez was working as a DoorDash driver and met M.G. when he came in to pick up an order. They dated for about two weeks and, after separating, remained friends, hanging out and running errands for each other.

[3] On May 18, 2024, M.G. had a flat tire, and Hernandez-Marquez loaned her his Jeep (“the Jeep”) for the day. She borrowed it again the next day. On the evening of May 19, 2024, Hernandez-Marquez arrived at M.G.’s home around 6:00 or 6:30 p.m. to retrieve the Jeep. He asked her to go to dinner with him, and although M.G. did not want to go, she felt pressured into going with him because he said she owed him for borrowing the Jeep and for fixing her car. M.G.’s three-year-old daughter, E.G., went with them to have dinner at a restaurant on West 56th Street in Indianapolis.

[4] As Hernandez-Marquez drove M.G. and E.G. home from dinner, M.G. received a text message from a male co-worker, and the message displayed the sender's photo on her phone screen. Hernandez-Marquez became angry, grabbed M.G.’s phone, and called the co-worker himself. He demanded to know who the co-worker was and asked him if he knew that M.G. had a boyfriend. When M.G. told Hernandez-Marquez that she was not his girlfriend, he disagreed and slapped her across the face, telling her not to talk while he spoke to the co-worker. M.G. hit him back but stopped when he threatened her. While Hernandez-Marquez was on the phone with the coworker, M.G. tried to tell her co-worker to call the police and that Hernandez-Marquez was hitting her, but apparently the co-worker did not hear her. As they continued to drive, Hernandez-Marquez hit M.G. repeatedly, pulled her hair, poked her in the ribs, and struck her left eye with a closed fist.

[5] Hernandez-Marquez drove to a Kroger at 86th Street and Township Line Road because M.G. told him she needed to use the restroom. M.G. hoped to get away from Hernandez at that time, but he would not let her take E.G. with her into the Kroger. Therefore, M.G. returned to the car, and they began driving again. When they approached a nearby intersection, M.G. rolled down her window and asked a driver in the car next to them to call 911, but the driver said she did not want to get involved. Hernandez-Marquez told M.G. he would keep hitting her “hard” if she attempted “another thing stupid like that[.]” Tr. Vol. 2 p. 135.

[6] Hernandez-Marquez drove around some more and stopped the Jeep on Walnut Drive, a dark road near M.G.’s home. He got out, went to her side of the vehicle, punched her, and pulled her hair hard enough that she felt her scalp “cracking.” Id. at 138. At that point, M.G. “kind of black[ed] out[,]” and when she woke up, they were in a different location. Id. Hernandez-Marquez had driven to the parking lot of his apartment. They stayed there in the Jeep until about 4:00 or 5:00 a.m. While there, friends of Hernandez-Marquez showed up at different points of the night. A woman named Patricia arrived and brought Hernandez-Marquez beer and drugs, and Hernandez-Marquez used the drugs in the Jeep. M.G. attempted to ask Patricia for help, and Hernandez-Marquez told M.G. she was not allowed to talk, referring to M.G. as “nobody.” Id. at 141. A male friend of Hernandez-Marquez's came by to drink with him, and M.G. again sought help without success. While the friend remained with E.G. in the Jeep, Hernandez-Marquez let M.G. go into his apartment to use the bathroom. However, he followed her inside, and when she tried to scream for help from a security guard, Hernandez-Marquez covered her mouth and ordered her to go inside.

[7] Eventually, Hernandez-Marquez drove M.G. and E.G. home, where M.G. took E.G. inside and placed her on the bed the two shared. At that point, Hernandez-Marquez was inside the apartment and asked M.G. if she wanted him to go. M.G. said yes but he told her he was not “going anywhere” and stayed. Id. at 146. When they were both in bed, Hernandez-Marquez told M.G. he wanted to have sex with her, and when she told him she did not “want to do this” and asked him to let her sleep, he forced her legs apart and bit her thigh. Id. at 147. Fearing further violence and knowing that Hernandez-Marquez was intoxicated, M.G. did not resist further and “let him do whatever he want[ed] to do” because he had already “hurt [her] before[.]” Id. Hernandez-Marquez performed oral sex on M.G. and penetrated her vagina with his fingers, a sex toy, and his penis; he also penetrated her anus with his fingers. After ejaculating in her vagina, Hernandez-Marquez fell asleep. M.G. remained quiet throughout so as not to wake E.G. who was asleep beside them in the bed.

[8] When M.G. woke up the next morning, she retrieved her phone from the floor, and when Hernandez-Marquez left the apartment to get them breakfast, M.G. arranged a rideshare to the hospital. At the emergency room, M.G. was examined by a nurse, and M.G. told the nurse about Hernandez-Marquez hitting her and punching her. The nurse noted that M.G. had bruising to various parts of her body and her left eye was bruised and swollen such that she could not fully open it. M.G. also disclosed the sexual assault, and she was examined by a sexual assault nurse examiner. Swabs were taken from M.G.’s genitals, and later testing identified genetic material containing Hernandez-Marquez's DNA.

[9] On July 22, 2024, the State charged Hernandez-Marquez with Counts I–V, five counts of Level 3 felony rape; Count VI, one count of Level 5 felony battery resulting in serious bodily injury; Counts VII, VIII, and XIII, three counts of Level 5 felony criminal confinement; Counts IX, X, and XIV, three counts of Level 5 felony kidnapping; Count XI, one count of Class A misdemeanor battery resulting in bodily injury; and Count XII, one count of Class A misdemeanor interference with the reporting of a crime. The State later amended the charging information twice with no substantial changes to the charged offenses. A jury trial was held on September 29 and 30, 2025, and the jury found Hernandez-Marquez guilty as charged on all counts. On October 30, 2025, the sentencing hearing was held. The trial court vacated one count of criminal confinement—Count VIII—and one count of kidnapping—Count X—and sentenced Hernandez-Marquez to an aggregate term of twenty-three years in the DOC. The trial court also found Hernandez-Marquez to be a sexually violent predator. Hernandez-Marquez now appeals.

Discussion and Decision

[10] Hernandez-Marquez asserts that his convictions for both Level 5 felony criminal confinement and Level 5 felony kidnapping violated Indiana's prohibition against double jeopardy. This presents a question of law, which we review de novo. Wadle v. State, 151 N.E.3d 227, 237 (Ind. 2020). Where a single act or transaction implicates multiple statutes, Wadle requires that we engage in a multi-step process to determine whether the convictions comport with double jeopardy principles. Id. at 235.

[11] Here, Hernandez-Marquez was convicted of both Level 5 felony criminal confinement and Level 5 felony kidnapping with M.G. as the victim and both Level 5 felony criminal confinement and Level 5 felony kidnapping with E.G. as the victim. He asserts that his convictions for both criminal confinement and kidnapping of the same victim violate double jeopardy. He, therefore, requests that his two convictions for Level 5 felony criminal confinement be vacated.

[12] The first step in the Wadle analysis is to review the two statutes under which Hernandez-Marquez was convicted. If the language of the statutes “clearly permits multiple punishment,” then there is no double jeopardy violation. Id. at 248. Hernandez-Marquez was convicted of Level 5 felony criminal confinement under Indiana Code section 35-42-3-3, and he was convicted of Level 5 felony kidnapping under Indiana Code section 35-42-3-2. Neither of the statutes at issue expressly authorizes multiple punishments for the same criminal act. Nor are the statutes part of a statutory scheme that requires multiple punishments. Because neither statute clearly permits multiple punishment, either expressly or by unmistakable implication, we must move to the next step in the Wadle analysis. Id.

[13] The second step is to determine whether either of the offenses is included in the other, either inherently or factually. Wadle, 151 N.E.3d at 248. An offense that is inherently included in another is one that

(1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;

(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or

(3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.

Ind. Code § 35-31.5-2-168.

[14] Hernandez-Marquez contends—and the State agrees—that our court has repeatedly held that criminal confinement is an inherently included offense of kidnapping. See Koziski v. State, 172 N.E.3d 338, 343 (Ind. Ct. App. 2021); Madden v. State, 162 N.E.3d 549, 561 (Ind. Ct. App. 2020); Jones v. State, 159 N.E.3d 55, 62–63 (Ind. Ct. App. 2020), trans. denied. This is because criminal confinement “requires proof of the same but fewer criminal elements as kidnapping.” Madden, 162 N.E.3d at 562 (quoting Jones, 159 N.E.3d at 66). To commit a kidnapping, a person must act “by fraud, enticement, force, or threat of force,” whereas criminal confinement must be committed without consent. See I.C. § 35-42-3-2(a); I.C. § 35-42-3-3(a). Kidnapping requires removal from one place to another, while criminal confinement requires an act of confinement. See I.C. § 35-42-3-2(a); I.C. § 35-42-3-3(a). “In removing someone from one place to another, a kidnapper has confined that person to those places[,]” and therefore, “[t]he element of confinement is a necessary part of forced removal.” Jones, 159 N.E.3d at 66. We also note that the criminal confinement and kidnapping charges concerning M.G. were both elevated for being “committed by using a vehicle[.]” Appellant's App. Vol. II p. 24; I.C. §§ 35-42-3-3(b)(1)(B), 35-42-3-2(b)(1)(A). Likewise, the criminal confinement and kidnapping charges concerning E.G. were both elevated because the victim was under the age of fourteen years of age. Appellant's App. Vol. II p. 25; I.C. §§ 35-42-3-3(b)(1)(A), 35-42-3-2(b)(1)(A). Because we conclude that criminal confinement is inherently included in the offense of kidnapping, we must proceed to step three of the analysis.

[15] In the third step, we must then “examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial.” Wadle, 151 N.E.3d at 249. “If the underlying facts reveal the two offenses are indeed separate, there is no Wadle violation, even if one offense is, by definition, included in the other.” A.W. v. State, 229 N.E.3d 1060, 1071 (Ind. 2024) (internal quotations omitted) (quoting Wadle, 151 N.E.3d at. 249). However, the convictions will be found to violate substantive double jeopardy if the two offenses were “so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” Id. “[I]f the ‘facts show only a single continuous crime, and one statutory offense is included in the other, then the prosecutor may charge these offenses only as alternative (rather than cumulative) sanctions.’ ” Id. (quoting Wadle, 151 N.E.3d at 249).

[16] Our court recently explained that, in accomplishing this third step, “we must first identify which of the defendant's actions to analyze.” Afolabi v. State, 279 N.E.3d 939, 955 (Ind. Ct. App. 2026), trans. denied. “This is not a call for post hoc explanations of how the evidence could have been allocated between the offenses to avoid substantive double jeopardy.” Id. Instead, “the State must demonstrate that it made clear to the fact-finder at trial that the apparently included charge was supported by independent evidence such that the State made a ‘distinction between what would otherwise be two of the “same” offenses.’ ” Ratliff v. State, 242 N.E.3d 1070, 1078–79 (Ind. Ct. App. 2024) (quoting A.W., 229 N.E.3d at 1071), trans. denied.

[17] In this case, the State did not meet its burden to show that Hernandez-Marquez's convictions for kidnapping and criminal confinement were supported by independent evidence at trial. The State concedes that “there was a period [of time] where [Hernandez-Marquez] was committing both kidnapping and criminal confinement of his victims when he used force and threat of force to compel M.G. and her daughter to remain in [the] Jeep as he drove around after dinner.” Appellee's Br. p. 13. However, the State asserts that the “circumstances changed when M.G. regained consciousness” in the parking lot of Hernandez-Marquez's apartment and then she and her daughter were “simply held in the unmoving vehicle” for several more hours. Id. Contrary to this assertion, nothing in the evidence presented at trial or in the State's closing argument indicated to the jury that the criminal confinement charges and the kidnapping charges were factually distinct.⁷ Instead, the evidence established one continuous episode.

[18] “[T]he span of the ‘kidnapping or confinement is determined by the length of time of the unlawful detention necessary to perpetrate the crime’ ” Moyers v. State, 277 N.E.3d 33, 44 (Ind. 2026) (quoting Bartlett v. State, 711 N.E.2d 497, 500 (Ind. 1999)). Here, the unlawful detention began when Hernandez-Marquez forced M.G. to remain in the Jeep and would not let her leave, and it only ended when M.G. was able to leave her apartment the next morning to go to the hospital. At no point prior to that was M.G. free to go nor did she feel free to go. As the State made no attempt to distinguish the criminal acts before the jury, we conclude that the evidence at trial established that the offenses of criminal confinement and kidnapping were “so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” See A.W., 229 N.E.3d at 1071. Therefore, Hernandez-Marquez's acts constituted a single transaction and convictions for both criminal confinement and kidnapping are a substantive double jeopardy violation.

[19] Because the State did not meet its burden to show that Hernandez-Marquez's convictions for kidnapping and criminal confinement of each victim (Count VII—Level 5 felony criminal confinement of M.G., Count IX—Level 5 felony kidnapping of M.G., Count XIII—Level 5 felony criminal confinement of E.G. and Count XIV—Level 5 felony kidnapping of E.G.) were supported by independent evidence at trial, Hernandez-Marquez's convictions on Count VII and Count XIII are contrary to law. We, therefore, remand for the trial court vacate Counts VII and XIII and their corresponding four-year concurrent sentences. See Eversole v. State, 251 N.E.3d 604, 609 (Ind. Ct. App. 2025) (holding “that the proper remedy” when a Wadle violation is found “is to vacate the conviction with the lesser penalty”), trans. denied.

[20] Reversed and remanded.

FOOTNOTES

1.   Ind. Code § 35-42-4-1(a)(1).

2.   I.C. § 35-42-2-1(c)(1), (g)(1) (2024).

3.   I.C. § 35-42-3-3(a), (b)(1)(A) & (b)(1)B).

4.   I.C. § 35-42-3-2(a), (b)(1)(A) & (b)(1)(B).

5.   I.C. § 35-42-2-1(c)(1).

6.   I.C. § 35-45-2-5(1).

7.   The State, in its brief, notes that “the prosecutor requested separate convictions for kidnapping and criminal confinement because the ‘confinement in the Jeep in that parking lot’ and ‘kidnapping ․ from driving around from different locations’ were ‘two separate distinct acts,’ ‘[t]wo separate decision makings,’ and ‘not just one continuous course of action.’ ” Appellee's Br. p. 13 (quoting Tr. Vol. 3 p. 172). However, this quoted argument was made during the sentencing hearing and not at trial to the jury. Therefore, such argument is not relevant to how the evidence was presented or argued at trial to attempt to defeat double jeopardy.

Foley, Judge.

Vaidik, J., and Altice, J, concur.