Curry v. State

740 N.E.2d 162, 2000 Ind. App. LEXIS 2128, 2000 WL 1877827

• Court: Indiana Court of Appeals
• Decided: December 28, 2000
• Docket: 49A02-9910-CR-732
• Status: Published

Opinions

OPINION

MATTINGLY, Judge

Wayne Curry appeals his convictions after trial by jury of criminal deviate conduct,¹ attempted rape,² and burglary,³ each as Class A felonies, and battery,⁴ as a Class C felony. He raises three issues for our review we restate as:

1. Whether Curry's convictions violate the Indiana constitutional prohibition against double jeopardy;

2. Whether the trial court erred in its instruction on reasonable doubt; and

3. Whether the evidence presented at trial was sufficient to support the jury's verdict.

We affirm in part and reverse and remand in part.

FACTS & PROCEDURAL HISTORY

While asleep in her Indianapolis apartment in the early morning of August 8, 1999, Michelle Pounders was awakened by a large white male with brown hair and a tattoo on his forearm, who climbed on top of her and began to choke her. Rendered briefly unconscious by her attacker, Pounders regained consciousness only to be struck and dragged to the floor. Once on the floor, the attacker pinned Pounders' face down. He then proceeded to rape her anally and attempted to rape her vaginally. Before fleeing, the attacker put a pillow over Pounders' face and told her he would kill her if she tried to look up.

Pounders suffered numerous injuries. She was found bleeding from her ears and nose. Her body was badly bruised, particularly around her neck where she had been strangled. Her knees and elbows were bruised and swollen. She suffered petechia, a hemorrhaging of blood cells under the skin of her face. She also had an eight millimeter external hematoma near her vagina and anus.

Wayne Curry first fell under suspicion as the attacker after he was found by a police deputy one month after the rape walking around the apartment complex grounds at 3:80 a.m. When confronted by the deputy, Curry explained he was walking around the apartment complex to warn the public of the danger in the complex due to the rapist. A computer fingerprint check revealed that Curry's prints matched those found on the victim's sliding glass door. He was not immediately brought in for questioning. Sometime later, in September or October 1998, the investigating officer again encountered. Curry-this time in a group of onlookers who had gathered after another rape in the complex. Upon seeing and recognizing the officer, Curry stated, "Darrell, I didn't do this one, a black man did." (R. at 244.) Curry was finally brought in for questioning on October 27, 1998.

Curry was read his rights, and he agreed to be interviewed and to give a statement. During this interview, Curry made several incriminating admissions. He explained that his fingerprints were on Pounders' glass door because he had been invited inside. Additionally, when advised the police could possibly link Curry to the crime with DNA evidence, Curry explained he had consensual sex with Pounders. On March 29, 1999, Curry was tried by jury and convicted of all four counts.

DISCUSSION & DECISION

1. Double Jeopardy

Curry was subjected to double jeopardy when he was charged with and convicted of criminal deviate conduct, attempted rape, and burglary as Class A felonies, as there was a reasonable possibility the jury based its guilty verdicts for the three counts on the same act by Curry.

Charging Curry with elevated counts of attempted rape, criminal deviate conduct, and burglary required the State to prove an additional element for each. For attempted rape and criminal deviate conduct as Class A felonies, the State was required to prove the attempt resulted in "serious bodily injury."⁵ (R. at 24.) On the burglary count as a Class A felony, the State was required to prove either "bodily injury" or "serious bodily injury"⁶ (Id.)

Our supreme court recently explained the double jeopardy protection provided under the Indiana Constitution. In Richardson v. State, 717 N.E.2d 32, 49-50 (Ind.1999), the court explained two or more offenses are the "same offense" in violation of the Indiana Constitution's double jeopardy protections where, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense. Id. Where, as here, a criminal statute provides for the elevation of a charge to a more serious crime based upon an additional element, the Richardson double jeopardy analysis applies. See Chapman v. State, 719 N.E.2d 1282, 1234 (Ind.1999), reh'g denied (reducing an elevated sentence when the same force used to convict of murder was used to elevate the robbery conviction).

Under the "actual evidence" test, the test applicable here, we examine the actual evidence presented at trial to determine whether each challenged offense was established by separate and distinct facts. Richardson, 717 N.E.2d at 58. To prove a double jeopardy violation under the "actual evidence" test, "a defendant must demonstrate a reasonable possibility that the evi-dentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense." Id. The "reasonable possibility" standard permits convictions of multiple offenses committed as part of a protracted criminal episode provided the case is prosecuted in a manner that insures the same evidence is not used to support multiple verdicts. Id. at 58 n. 46.

Curry's case was not so prosecuted. The State's charging informations for the attempted rape and sexual deviate conduct counts both refer to Curry's actions "while using deadly force" (R. at 28) and while Pounders was compelled to submit "by foree or the imminent threat of force." (Id.) The burglary information alleges Curry broke and entered Pounders' dwelling with the intent to engage in sexual intercourse with her while she was "com-pelied to submit by force or the imminent threat of force." (Id. at 24.) Only the information for the battery count identifies the act that resulted in bodily injury to Pounders: "strangl[ling]l her around the neck, which resulted in serious bodily injury ..., that is: unconsciousness." (Id.)

Pounders sustained multiple injuries during the beating she suffered after she regained consciousness, but the beating that apparently supported the enhancement of the charges of criminal deviate conduct, attempted rape, and burglary consisted of a single episode of brutality⁷ and cannot be classified as separate and distinct incidents. Furthermore, the State presented no evidence at trial that would have indicated to the jury that the "force" elements of the three charges were to be satisfied by distinct acts of violence. Rather, the State's case and Curry's defense were both premised almost entirely upon the identification of Curry as the perpetrator. There was a reasonable possibility the jury used the same facts to establish the essential elements of force or injury that were used to enhance all three charges to Class A felonies and Curry was therefore subjected to double jeopardy. As a result, we affirm Curry's convictions of battery as a Class C felony and attempted rape as a Class A felony. We reduce his convictions of burglary and criminal deviate conduct to Class B felonies⁸ and remand to the trial court.

2. Jury Instructions

When deciding whether a particular jury instruction was proper, we consider 1) whether the instruction correctly stated the law; 2) whether there was evidence in the record to support giving the instruction; and 3) whether the substance of the instruction was covered by other instructions. Fields v. State, 679 N.E.2d 1315, 1822 (Ind.1997). Instructing the jury lies within the sound discretion of the trial court, and we will disturb a jury's verdict and reverse a judgment only if the trial court has abused this discretion. Edgecomb v. State, 673 N.E.2d 1185, 1186 (Ind.1996).

Curry first argues the court's instruction on reasonable doubt was improper, despite being a correct statement of law expressly approved by our supreme court in Winegeart v. State, 665 NE.2d 893 (Ind.1996). He asks that we "reexamine the Winegeart instruction with the benefit of analysis derived from other jurisdictions that have been confronted with objections or criticisms of the instruction on appeal." (Br. of Appellant at 11.) We decline Curry's invitation, as our supreme court recently reaffirmed the Winegeart instruction in Wright v. State, 730 N.E.2d 718, 716 (Ind.2000). In light of this precedent, we do not find error in the trial court's reasonable doubt instruction.⁹

Next Curry argues the court's instruction on victim testimony was improper. The trial court instructed:

It is not essential to a conviction that the testimony of the victim be corroborated by other evidence. It is sufficient if, from all the evidence, you believe beyond a reasonable doubt that the crimes charged were committed by the defendant.

(R. at 119.) This instruction is a correct statement of law, Madden v. State, 549 N.E.2d 1030 (Ind.1990), and Curry acknowledges as much. (Br. of Appellant at 12.) Curry, however, posits the evidence did not support the use of this instruction and its use "unfairly highlighted and vouched for the testimony of the victim." (Id.) We disagree.

When considering whether the evidence supports an instruction, we examine the jury instructions as a whole and in reference to each other. An error in a single instruction will not require reversal unless the entire charge misleads the jury as to the law in the case. Edgecomb, 673 N.E.2d at 1186. In this case, the fact that the victim's testimony was corroborated by Curry's admissions and other physical evidence does not make the instruction erroneous. The jury was instructed how to use witness testimony, including the vie-tim's, and that it could not convict absent evidence beyond a reasonable doubt. We find no error.

3. Sufficiency of the Evidence

When reviewing the sufficiency of evidence presented to support conviction, we neither reweigh the evidence nor judge the credibility of the witnesses. Perry v. State, 638 N.E.2d 1236, 1242 (Ind.1994); Byrd v. State, 707 N.E.2d 308, 312 (Ind.Ct.App.1999). Rather, we look to the evidence that supports the verdict and all reasonable inferences which can be drawn therefrom. Taylor v. State, 681 N.E.2d 1105, 1110 (Ind.1997); Chissell v. State, 705 N.E.2d 501, 505 (Ind.Ct.App.1999), trams. denied, 714 N.E.2d 170 (Ind.1999). We will affirm a conviction if there is probative evidence from which a reasonable jury could find the defendant guilty beyond a reasonable doubt. Taylor, 681 N.E.2d at 1110.

Curry does not dispute there was "overwhelming evidence that Ms. Pound-ers suffered a horrifying attack," (Br. of Appellant at 17), and challenges only the sufficiency of evidence linking him to the crimes. There was ample evidence to support the finding he was the attacker.

Evidence that Curry was the attacker came from three sources-physical evidence, admissions, and victim identification. Curry's fingerprints were found on the sliding glass door to the victim's apartment, thereby placing him at the scene of the crime. He attempted to explain this to the investigating detective. During his questioning, the investigating detective informed Curry of his intention to match Curry's DNA and fingerprints with any found at the crime seene. The detective asked Curry if he wanted to tell him anything before they took blood, hair, and saliva samples from him. The detective also asked "Do you think they're going to believe that you don't know how your fingerprints and your DNA got in that apartment?" (R. at 324.) To this, Curry responded "I know exactly how my fingerprints got in that apartment .... [blecause I was welcomed into the home." (Id.)

Curry went on to admit having consensual intercourse with the victim.¹⁰ He stated "Yeah, I had sex with her, but not forcefully." (Id.) When asked if they had anal sex, he told the detective "Yeah, she told me she'd like that." (Id. at 329.) When asked about whether she liked rough sex, Curry responded "The way she acted, she did 'cause she's weird." (Id.)

Beyond the fingerprints on the door of the victim's apartment and Curry's admissions, the victim was able to give a general description of her assailant. While the description was somewhat vague and she admitted to not being able to identify Curry as her assailant, her general description was not inconsistent with Curry's appearance-including a tattoo on his forearm. This description in connection with the physical evidence and admissions provides sufficient evidence to permit the jury to have concluded Curry was the attacker.

CONCLUSION

We affirm Curry's convictions of battery as a Class C felony and attempted rape as a Class A felony and reduce his convictions of burglary and eriminal deviate conduct to Class B felonies. We remand to the trial court for proceedings consistent with this opinion.

BROOK, J., concurs. DARDEN, J., concurring in part and dissenting in part with opinion.

1 . Ind.Code § 35-42-4-2.

2 . Ind.Code §§ 35-41-5-1, 35-42-4-1.

3 . Ind.Code § 35-43-2-1.

4 . Ind.Code § 35-42-2-1.

5 . Ind.Code § 35-42-4-1(b)(3), 35-42-4-2(b)(3). Serious bodily injury is defined as '"'bodily injury that creates a substantial risk of death or that causes serious permanent disfigurement, unconsciousness, extreme pain, or permanent or protracted loss or impairment of the function of a bodily member or organ." Ind.Code § 35-41-1-25.

6 . .Ind.Code § 35-43-2-1. Bodily injury is defined as "any impairment of physical condition, including physical pain." Ind.Code § 35-41-1-4.

7 . Curry's double jeopardy protections are not implicated by the battery conviction. Curry strangled Pounders to the point of unconsciousness, and the subsequent beating did not take place until after she had regained consciousness. This act was clearly separated from the beating by the State's charging information and by Pounders' testimony at trial.

8 . We do so pursuant to Ritchie v. State, 243 Ind. 614, 618, 189 N.E.2d 575, 576 (1963). There our supreme court held that when, under the evidence as found by the court or jury, the accused should have been adjudged guilty of a lesser included offense, an appellate court may modify the judgment by reducing the conviction to that of the lesser included offense and thus avoid a new trial. See also Nuerge v. State, 677 N.E.2d 1043, 1047 (Ind.Ct.App.1997). The court noted in Ritchie the general rule that a "reviewing court, in a proper case, may modify a judgment of conviction below and affirm it as a conviction of a lesser degree of the offense charged, or of a lesser crime included therein, where the errors do not affect the conviction of the lesser offense." 243 Ind. at 619, 189 N.E.2d at 577, quoting 5 Am.Jur.2d Appeal and Error § 938.

The Ritchie court found that its discretion to so modify sentences was premised upon Burns' Ann. St. § 9-2321, which provided in pertinent part that "[oln appeal, the court may reverse, modify, or affirm the judgment appealed from, and may, if necessary or proper, order a new trial. In any case, the cause must be at once remanded to the trial court, with proper instructions...." Similar provisions are now included in Ind. Appellate Rule 15(N). However, the Ritchie court noted that [there are a number of states without any constitutional or statutory authority specifically authorizing modification or alteration of judgments on appeal in criminal cases; yet the high courts of those states have found that they have inherent discretion to do so." 243 Ind. at 622, 189 N.E.2d at 578.

We have followed the Ritchie approach in a number of subsequent decisions. See, eg., Anderson v. State, 674 N.E.2d 184, 185-86 (Ind.Ct.App.1996), where the defendant was found guilty of aggravated battery as a lesser included offense of attempted murder. On appeal, the aggravaied battery conviction was vacated, and the case was remanded "with instructions to enter judgment and sentence on the offense of battery with a deadly weapon, a class C felony, a lesser included offense of attempted murder." And see Lane v. State, 175 Ind.App. 543, 548, 372 N.E.2d 1223, 1225-27 (1978); Nunn v. State, 601 N.E.2d 334, 339-40 (Ind.1992); Johnson v. State, 594 N.E.2d 817, 820-21 (Ind.Ct.App.1992); Isom v. State, 589 N.E.2d 245, 248 (Ind.Ct.App.1992); and Gilliam v. State, 508 N.E.2d 1270, 1271 (Ind.1987).

9 . Curry additionally argues it was error for the trial court to reject his tendered reasonable doubt instruction as it too was a correct statement of law. As the substance of Curry's tendered instruction was sufficiently covered by the instruction actually given the jury, we do not find error.

10 . Curry argues he was only admitting to having consensual sex with "some woman who resided at the same apartment complex as Ms. Pounders," (Br. of Appellant at 17), and not specifically the victim. Despite this argument, we believe a more reasonable inference to be drawn from his admissions, when viewed in the light most favorable to the judgment, is that Curry was admitting to having had consensual sexual intercourse with the viciim. Curry was being questioned about the crime against the victim and was offering an explanation why his fingerprints and potentially his DNA might be found in the victim's apartment. Additionally, the detective through whom these admissions were presented was cross-examined on this specific point. Therefore, Curry is merely offering us an opportunity to reweigh evidence-something we do not do.