¶1concurring in result.
¶2The majority opinion here relies upon Richards v. State, 816 N.E.2d 72 (Ind.Ct.App.2004) and In Re Bridges, 474 N.E.2d 529 (Ind.Ct.App.1985). Richards correctly says that under subsection one of the statute the State had to prove the absence of consent on the part of C.R., the five-year-old child. This is because that subsection defines confinement as being "without the other person's consent." The Richards court went on to say, however, that whether or not C.R. consented was irrelevant because subsection two of the statute permits conviction without regard to the other person's consent, and in Richards, the defendant removed C.R. by force from one place to another. Thus Richards' conviction was appropriate under subsection two of the statute. This conclusion would be correct only if Richards had been charged under subsection two rather than subsection one. In this regard, unfortunately, the Richards opinion does not indicate whether the charge was brought under subsection one or subsection two.
¶3Nevertheless, in my view, Richards confused the issue by citing to Bridges for the proposition that a child is incapable of consenting and that therefore it may be said that the child was confined without the child's consent. If the charge was framed under subsection two, reference to Bridges was unnecessary. If, on the other hand, the charge was under subsection one, any discussion of the validity of a subsection two conviction would be extraneous. Be that as it may, Richards held that the conviction was valid under either of the two subsections.
¶4The majority opinion here, however, focuses upon what I perceive to be an irrelevant and therefore confusing factor. In my view, the fact that the maternal grandmother in Richards and that Christina, the child's mother in the case before us, did not consent is irrelevant and was not a basis of the conviction in either case. Accordingly, Christina's lack of consent in this case is of no moment.
¶5Here, Perrey's conviction was based upon the charge that A.B. was confined "without the person's consent." 'T'r. at 821. "[Tlhe person" necessarily referred to A.B., ie. the person confined, and had nothing to do with whether or not Christina, the child's mother, consented. Accordingly, pursuant to the case law holding that a child of tender years is incapable of consent, the conviction is sustainable under subsection one of the statute. It is upon this basis that I concur in result.