Corey Wharton v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 30, 2019
• Docket: 18A-CR-2824
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this May 30 2019, 8:44 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Yvette M. LaPlante Curtis T. Hill, Jr. Keating & LaPlante, LLP Attorney General of Indiana Evansville, Indiana J. T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Corey Wharton, May 30, 2019

Appellant-Defendant, Court of Appeals Cause No. 18A-CR-2824 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable Leslie Shively, Judge Trial Court Cause No. 82D03-1805- Appellee-Plaintiff. F5-3642

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019 Page 1 of 13 STATEMENT OF THE CASE [1] Appellant-Defendant, Corey Wharton (Wharton), appeals his conviction for

Count I, carrying a handgun without a license with a prior felony, a Level 5

felony, Ind. Code § 35-47-2-1(e); Count II, possession of methamphetamine, a

Level 5 felony, I.C. § 35-48-4-6.1(b); Count III, operating a motor vehicle after

forfeiture of license for life, a Level 5 felony, I.C. § 9-30-10-17(a)(1); Count IV,

resisting law enforcement, a Level 6 felony, I.C. § 35-44.1-3-1(b); and Count V,

resisting law enforcement, a Class A misdemeanor, I.C. § 35-44.1-3-1(a)(1).

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

ISSUES [3] Wharton presents two issues on appeal, which we restate as:

(1) Whether the trial court’s comments that Wharton had prior felony

convictions during the first phase of his bifurcated trial constituted a

fundamental error; and

(2) Whether Wharton’s convictions for two Counts of resisting law

enforcement violated the prohibition against Double Jeopardy under the

Indiana Constitution.

FACTS AND PROCEDURAL HISTORY [4] On May 21, 2018, Officer Kenny Dutschke (Officer Duschke) and Officer

Justin Jackson (Officer Jackson) of the Evansville Police Department were

investigating a shooting that had occurred the previous day. The officers were

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019 Page 2 of 13 searching for a maroon four-door vehicle allegedly involved in the shooting

incident. At the intersection of Monroe and Garvin Streets, the officers saw a

vehicle matching the description. Wharton was driving the vehicle. The

officers, who were in a fully marked police vehicle, activated their emergency

lights and initiated a traffic stop. Wharton did not stop his vehicle, but instead

slowed down at first and then accelerated. Wharton stopped his vehicle about a

block away and then fled on foot. Officer Dutschke pursued Wharton on foot

while Officer Jackson remained behind trying to keep Wharton’s vehicle from

striking his own, since Wharton had left his vehicle in reverse gear. While

chasing Wharton, Officer Dutschke repeatedly ordered Wharton to stop, but

Wharton kept running. Officer Dutschke had to use his taser to stop Wharton

from running. After securing Wharton, the officers searched Wharton’s person

and located a white crystalline substance which was later determined to be 2.62

grams of methamphetamine.

[5] On May 23, 2018, the State filed an Information, charging Wharton with Count

I, carrying a handgun without a license with a prior felony, a Level 5 felony;

Count II, possession of methamphetamine, a Level 5 felony; Count III,

operating a motor vehicle after forfeiture of license for life, a Level 5 felony;

Count IV, resisting law enforcement, a Level 6 felony; and Count V, resisting

law enforcement, a Class A misdemeanor. The State also filed a habitual

offender enhancement charge, claiming that Wharton had accumulated at least

three prior unrelated felony convictions.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019 Page 3 of 13 [6] On June 19, 2018, Wharton requested permission to represent himself. After

being advised, his request was granted. A public defender was appointed as

stand-by counsel on June 20, 2018. At the start of his jury trial on September

26, 2018, the trial court conducted a pre-trial hearing. Wharton appeared via

video from Vanderburgh County Jail and stated that he would not be attending

his trial. Also, Wharton fired his standby counsel, claiming that she was

“ineffective.” (Transcript Vol. II, p. 90). After the pretrial hearing concluded,

the trial court proceeded with Wharton’s bifurcated jury trial. Wharton was

tried in absentia; however, his standby counsel remained seated at the table. At

the end of the first phase of Wharton’s trial, the jury found Wharton guilty as

charged. During the second phase of Wharton’s trial, the jury adjudicated

Wharton as an habitual offender.

[7] On October 26, 2018, the trial court conducted a sentencing hearing. After the

trial court read the cause number to this case, Wharton immediately objected

and stated, “I’m not here to be adjudicated upon. I’m just here on a special

appearance today. Not a general appearance.” (Tr. Vol. II, p. 210). The trial

court warned Wharton not to interrupt when it was talking, or it would conduct

the hearing in his absence. Wharton again interrupted the trial court and

stated, “I’m a Moorish national. And this Court is runnin’ a defacto [sic] status

right now as we speak . . . I ask that you [,] I demand you release the restraints

and produce the body via habeas corpus of Corey Warton-el.” (Tr. Vol. II, pp.

210, 212). The trial court gave a further warning, but Wharton continued,

“Although you sit (indiscernible) King Soloman [sic] you can’t judge me as

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019 Page 4 of 13 Soloman [sic]. I am Soloman [sic].” (Tr. Vol. II, p. 212). At that point, the

trial court ordered Wharton to be removed from the courtroom. After

considering the presentencing report and the evidence presented, the trial court

sentenced Wharton as follows: Six years on Count I, enhanced by six years due

to Wharton’s status as an habitual offender; two and one-half years on Counts

II and IV; six years on Count II; and one year on Count V. Wharton’s

sentences were to run concurrently, for an aggregate sentence of twelve years.

[8] Wharton now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION I. Trial Court’s Comments

[9] Wharton argues error occurred when the trial court stated during the voir dire

process that he had a prior felony conviction. Wharton acknowledges in his

brief that he did not object at trial to any of the references he now alleges to be

error because he was absent at his trial. Generally, the failure to object at trial

results in a waiver of the issue on appeal. Bayes v. State, 779 N.E.2d 77, 81 (Ind.

Ct. App. 2002), trans. denied. “A contemporaneous objection affords the trial

court the opportunity to make a final ruling on the matter in the context in

which the evidence is introduced.” Id.

[10] Wharton nevertheless seeks to escape waiver by arguing that the references

constitute fundamental error. The fundamental error exception to the waiver

rule regarding contemporaneous objections is an extremely narrow one. Id.

The doctrine is “available only when the record reveals a clearly blatant

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019 Page 5 of 13 violation of basic and elementary principles, where the harm or potential for

harm cannot be denied, and which violation is so prejudicial to the rights of the

defendant as to make a fair trial impossible.” Jewell v. State, 887 N.E.2d 939,

942 (Ind. 2008).

[11] As a person accused of a criminal offense, Wharton had a constitutional due

process right to a fair trial. See U.S. CONST. Amends. V, XIV; Ind. Const. Art.

1, §§ 12, 13. Due process constitutionally clothed Wharton with a presumption

of innocence. See Estelle v. Williams, 425 U.S. 501, 503 (1976). Further, we note

that one purpose of bifurcation is to keep prior offenses away from the jury

during the phase of determining guilt for the crimes charged. Russell v. State,

997 N.E.2d 351, 354 (Ind. 2013). Evidence of prior convictions is generally

inadmissible because such evidence “‘has no tendency to establish the guilt or

innocence of the accused.’” Spearman v. State, 744 N.E.2d 545, 547 (Ind. Ct.

App. 2001) (quoting Lawrence v. State, 259 Ind. 306, 310, 286 N.E.2d 830, 832

(1972)).

[12] Wharton argues that because the jury was made aware that he had a prior

felony during voir dire, he was denied the presumption of innocence and due

process of law. He continues that while “the trial court did bifurcate the

proceedings and tried the habitual offender [] enhancement[] in a second phase

of the trial[,] [d]espite the bifurcation, the trial court told the jury the defendant

had a prior felony conviction on three separate occasions during the voir dire

process.” (Appellant’s Br. p. 13).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019 Page 6 of 13 [13] Turning to the record, at the beginning of the voir dire process and while

addressing the jury pool, the trial court stated,

As I said, this is a criminal case and the charges that are pending against Mr. Wharton that you will be considering today are carrying a handgun [] with a prior [f]elony conviction, possession of methamphetamine, operating a motor vehicle after forfeiture of license, resisting law enforcement, and related charges thereto. Now because this is in fact a criminal trial [Wharton] is presumed to be innocent of the charges that have been brought against him. The [s]tate of Indiana has the burden of overcoming this presumption of innocence and proving . . . [Wharton’s] guilt of all of these crimes beyond a reasonable doubt. I will discuss these contents with you at a greater length later in these proceedings.

(Tr. Vol. II, p. 96). When the trial court asked a prospective juror if there was

“anything about the charges in [Wharton’s] case that would cause” her “to be

unable to listen to the evidence in this case and render a verdict solely” based

on the evidence, the following exchange occurred,

[Prospective Juror]: I do have a problem if the particular person is a repeat offender. I don’t see the burden of proof should be on the State to do that. But that’s my own opinion. Because the fact is, is if he basically has already [] had a record, and he’s repeating these (indiscernible).

[Trial Court]: Well you really don’t know that yet. The way our system constitutionally works, even if using your hypothetical, someone has been charged and found guilty sometime back of a crime, we’re not here about that crime. We’re here about new charges. And the way our system works, the State still has to prove all the elements of those new charges. We don’t simply

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019 Page 7 of 13 operate and say this person was convicted before therefore they must be guilty. We don’t work that way. We ignore all that and start fresh. Given that explanation can you do that?

[Prospective Juror]: Sure . . . .

(Tr. Vol. II, pp. 99-100). Then during the second round of the voir dire process,

the trial court had the following dialogue with a prospective juror:

[Trial Court]: The nature of the charges in this case, which I went through generally, possession of meth, possession of a handgun by a convicted felon, and the moving violations, resisting arrest, etcetera. Anything about those charges that bother you that would make it difficult for you to view the evidence presented objectively?

[Prospective Juror]: No.

(Tr. Vol. II, pp. 103-04). Lastly, while questioning another prospective juror,

the following exchange occurred

[Trial Court]: Given the nature of some of the charges in this case, possession of meth, possession of a firearm by convicted felon, resisting law enforcement, anything about those charges that bother you that would cause you to be less than objective in considering the evidence?

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019 Page 8 of 13 (Tr. Vol. II, pp. 105-06). 1

[14] Here, the trial court simply recited the charges against Wharton and nothing

more, and we note that the underlying facts relating to Wharton’s prior

conviction which elevated the possession of a handgun without a license to a

Level 5 felony, were not made known to the potential jurors. Moreover, the

trial court’s multiple references that Wharton had a prior felony were

accompanied with statements that sufficiently minimized any prejudicial effect.

The trial court attempted to explain to the prospective juror who had a concern

regarding Wharton’s prior felony conviction, indicating that the prior

conviction could not determine if Wharton was guilty of the instant offenses;

rather the burden was on the State to prove all the offenses beyond a reasonable

doubt.

[15] The trial court’s reading of the possession of handgun without a license charge

with a prior felony, as enhanced, was information related to the charge, but the

enhancement still had to be proven, and was proven during the second phase of

Wharton’s bifurcated trial. Thus, the trial court’s comments during voir dire did

1 The prospective juror claimed that she did not agree with the “methamphetamine part” because she had an “ex-husband” who was a user. (Tr. Vol. II, p. 106). After the trial court clarified that it was not seeking to delve into the issues of her former marriage and was only seeking her objectivity in considering the evidence presented, it proceeded in asking her further questions.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019 Page 9 of 13 not give rise to an undeniable or substantial potential for harm, did not

constitute a clearly blatant violation of elementary principles of due process,

and did not render a fair trial impossible. In light of these isolated references to

Wharton’s status based on past convictions during voir dire, and our Supreme

Court’s narrow definition of fundamental error, we hold that the prejudice did

not constitute fundamental error. See Bayes, 779 N.E.2d at 81 (where we

determined that the trial court’s and prosecution’s repeated reference to the

defendant’s status as a serious violent felon during voir dire did not constitute

fundamental error.)

II. Double Jeopardy

[16] Wharton claims that his two convictions for resisting law enforcement, one as a

Level 6 felony and one as a Class A misdemeanor, violate the Double Jeopardy

Clause under the Indiana Constitution.

[17] Article 1, section 14 of the Indiana Constitution provides that “[n]o person shall

be put in jeopardy twice for the same offense.” The Indiana Supreme Court has

determined that two or more offenses constitute the same offense for double

jeopardy purposes “if, with respect to either the statutory elements of the

challenged crimes or the actual evidence used to obtain convictions, the

essential elements of one challenged offense also establish the essential elements

of another challenged offense.” Frazier v. State, 988 N.E.2d 1257, 1262 (Ind. Ct.

App. 2013) (citing Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). Whether

convictions violate double jeopardy is a question of law which we review de

novo.” Id. Vermillion v. State, 978 N.E.2d 459, 464 (Ind. Ct. App. 2012).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019 Page 10 of 13 [18] In support of his double jeopardy claim, Wharton relies on Paquette v. State, 101

N.E.3d 234, 237 (Ind. 2018). In Paquette, our Supreme Court found that only

one Level 3 felony conviction is authorized under Indiana Code section 35-

44.1-3-1 when a defendant engages in a single act of resisting law enforcement

while operating a vehicle that causes multiple deaths.

[19] The defendant in Paquette used a vehicle to flee from law enforcement, and the

pursuit ended in a crash involving innocent motorists. The defendant faced

multiple Level 3 felony resisting law enforcement charges stemming from a

single act of resisting. We find that any double jeopardy concerns may not be

fully resolved by Paquette. Rather, we believe that the issue presented here is

whether Wharton’s resisting law enforcement offenses violate the continuous

crime doctrine, which reflects another category of Indiana’s prohibition against

double jeopardy.

[20] The continuous crime doctrine defines those instances where a defendant’s

conduct amounts only to a single chargeable crime and prevents the State from

charging a defendant twice for the same continuous offense. Koch v. State, 952

N.E.2d 359, 373 (Ind. Ct. App. 2011), trans. denied. The doctrine “essentially

provides that actions that are sufficient in themselves to constitute separate

criminal offenses may be so compressed in terms of time, place, singleness of

purpose, and continuity of action as to constitute a single transaction.” Id.

(citation omitted). The doctrine applies in those situations where a defendant is

charged multiple times with the same offense. Id. The continuous crime

doctrine does not seek to reconcile the double jeopardy implications of two

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019 Page 11 of 13 distinct chargeable crimes; rather, it defines those instances where a defendant’s

conduct amounts only to a single chargeable crime. Hines v. State, 30 N.E.3d

1216, 1219 (Ind. 2015). The continuous crime doctrine requires a fact-sensitive

analysis. Chavez v. State, 988 N.E.2d 1226, 1229 (Ind. Ct. App. 2013), trans.

denied.

[21] A person commits the offense of Class A misdemeanor resisting law

enforcement by fleeing from a law enforcement officer after the officer has, by

visible or audible means, identified himself and ordered the person to stop. I.C.

§ 35-44.1-3-1(a)(3). The offense is a Level 6 felony if the person “uses a vehicle

to commit the offense.” I.C. § 35-44.1-3-1(b)(1)(A).

[22] This Court has held in several cases that a defendant cannot be convicted of

both misdemeanor and felony resisting law enforcement when he or she flees in

a vehicle, gets out, and immediately flees on foot. See, e.g., Lewis v. State, 43

N.E.3d 689, 691 (Ind. Ct. App. 2015); Nevel v. State, 818 N.E.2d 1, 5 (Ind. Ct.

App. 2004). In both of these cases, the defendant fled from the police in a

vehicle, got out of the vehicle, and continued to flee from the police on foot.

He was charged and convicted of both misdemeanor and felony resisting law

enforcement, and this Court vacated the misdemeanor resisting convictions.

Lewis, 43 N.E.3d at 691; Nevel, 818 N.E.2d at 5.

[23] The instant case is in line with the above cited cases. Wharton’s actions of

fleeing by vehicle and then on foot constitute one continuous act of resisting

law enforcement, and we hold that convictions on both Counts cannot stand.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019 Page 12 of 13 See Lewis, 43 N.E.3d at 691; Nevel, 818 N.E.2d at 5. Our holdings are also

consistent with our Supreme Court’s decision in Hines, 30 N.E.3d at 1220,

where the court clarified that the continuous crime doctrine applies “only where

a defendant has been charged multiple times with the same ‘continuous’

offense.” Our Supreme Court further explained that “[t]he Legislature, not this

Court, defines when a criminal offense is continuous, e.g. not terminated by a

single act or fact but subsisting for a definite period and covering successive,

similar occurrences.” Id. at 1219. We remand this case to the trial court with

instructions to vacate Wharton’s conviction for Class A misdemeanor resisting

law enforcement and to amend the abstract of judgment, chronological case

summary, and any other relevant court documents to reflect the vacated Class

A misdemeanor conviction.

CONCLUSION [24] Based on the foregoing, we conclude that the trial court’s repeated reference to

the fact that Wharton had a prior felony conviction during voir dire did not

constitute fundamental error. However, we remand this case to the trial court

with instructions to vacate Wharton’s conviction for Class A misdemeanor

resisting law enforcement.

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

[26] Bailey, J. and Pyle, J. concur

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2824 | May 30, 2019 Page 13 of 13