Dejuan Wells v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 14, 2016
• Docket: 49A02-1506-CR-604
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 14 2016, 8:42 am

this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dejuan Wells, April 14, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1506-CR-604 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Kurt Eisgruber, Appellee-Plaintiff. Judge Trial Court Cause No. 49G01-1309-FA-62015

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016 Page 1 of 10 Case Summary and Issues [1] The State charged DeJuan Wells with twenty-five counts arising from conduct

related to his live-in girlfriend. A jury found him not guilty of two of those

counts, but guilty of the remainder. The trial court entered judgment of

conviction on twenty of the counts and sentenced Wells to a total of twenty-six

years. On appeal, Wells challenges only his convictions for criminal deviate

conduct, a Class B felony; rape, a Class B felony; battery, a Class D felony; and

battery, a Class A misdemeanor. He raises several issues on appeal, which we

consolidate and restate as: 1) whether there was sufficient evidence to support

his convictions for criminal deviate conduct and rape; and 2) whether his

convictions for both Class D felony battery (Count VIII) and Class A

misdemeanor battery (Count X) violate Indiana’s Double Jeopardy Clause. We

conclude there was sufficient evidence to convict Wells of criminal deviate

conduct and rape and affirm those convictions. We also conclude, however,

that his convictions for both Class D felony battery and Class A misdemeanor

battery violate Indiana’s Double Jeopardy Clause. We therefore reverse Wells’

conviction for Class A misdemeanor battery and remand with instructions for

the trial court to amend the abstract of judgment accordingly. We affirm in

part, reverse in part, and remand.

Facts and Procedural History [2] In late June or early July 2013, Wells engaged in an argument with his

significant other, T.H., in the home they shared. Wells and T.H. were not

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016 Page 2 of 10 married, but they were involved in a long-term romantic relationship and have

three children together. The argument escalated when Wells punched T.H.

with a closed fist and pulled her upstairs to their eldest child’s bedroom. Wells

then retrieved a small handgun; he put it in T.H.’s mouth and held it to T.H.’s

head while threatening her. She begged him not to shoot and to think about his

kids. He eventually stopped.

[3] In early September 2013, Wells and T.H. again argued in their home. Wells

struck T.H. with her phone and punched her “a few times,” hitting her left eye,

arms, and legs. Transcript at 145. The argument continued into the kitchen,

where Wells pulled out a knife and put it on the counter. He became apologetic

and asked T.H. to perform oral sex to make him feel better, which she did.

[4] On September 18, 2013, Wells and T.H. once again argued in their home. This

time, the couple argued in their bedroom, resulting in Wells grabbing T.H.,

throwing her to the opposite side of the bed, punching her, and choking her first

with both hands and then by applying pressure to her neck with his arm or leg

as she laid on her back on the bed. Once Wells stopped attacking T.H., he told

her she needed to do something to make him feel better and wanted to have sex

with her. She said no, but she was scared and afraid he would beat her again,

so she eventually “went along with it.” Id. at 199. He at least partially tore her

underwear off and had sexual intercourse with her.

[5] The next morning T.H. dropped her eldest son off at school and called the

police. She met detectives at the police station and told them about Wells’

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016 Page 3 of 10 abuse. He was arrested at their home. T.H. agreed to go to the hospital, where

she consented to a sexual assault examination. The forensic nurse examiner

observed a right eye injury, bruising on her left eye, abrasions and swelling on

her neck, bruising behind her ear, and injuries to her shoulders and right arm.

Lab analysis of the sex crimes kit performed during the sexual assault

examination revealed the presence of Wells’ DNA inside T.H.’s vagina.

[6] After looking up Wells’ charges online, T.H. unsuccessfully attempted to have

the “sexual charges” dropped by contacting detectives and writing a letter to the

court. Id. at 188. During this time, Wells violated a no contact order by

repeatedly calling T.H. from jail. The State amended the charging information

to add thirteen counts of invasion of privacy based on this contact. Wells was

ultimately convicted of criminal deviate conduct, a Class B felony; rape, a Class

B felony; battery, a Class C felony; battery, a Class D felony; domestic battery,

a Class D felony; strangulation, a Class D felony; pointing a firearm, a Class D

felony; three counts of battery, all Class A misdemeanors; and thirteen counts

of invasion of privacy, all Class A misdemeanors.

[7] At sentencing, the trial court merged a Class A misdemeanor battery, the Class

D felony domestic battery, and the Class D felony pointing a firearm

convictions with other convictions and sentenced Wells on the remaining

counts to a total of twenty-six years executed, with twenty years to be served in

the Department of Correction and six years to be served in community

corrections. Wells now appeals.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016 Page 4 of 10 Discussion and Decision I. Sufficiency of Evidence A. Standard of Review [8] “When reviewing the sufficiency of the evidence to support a conviction, we

consider only the probative evidence and reasonable inferences supporting the

verdict.” Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct. App. 2013), trans. denied.

We will not reweigh the evidence or assess the credibility of the witnesses.

Glenn v. State, 999 N.E.2d 859, 861 (Ind. Ct. App. 2013). “The conviction will

be affirmed unless no reasonable fact-finder could find the elements of the crime

proven beyond a reasonable doubt.” Id. (citation and quotation marks

omitted).

B. Criminal Deviate Conduct and Rape [9] “A person who knowingly or intentionally causes another person to perform or

submit to deviate sexual conduct when . . . the other person is compelled by

force or imminent threat of force . . . commits criminal deviate conduct, a Class

B felony.” Ind. Code § 35-42-4-2(a)(1) (2013). “[A] person who knowingly or

intentionally has sexual intercourse with a member of the opposite sex when

. . . the other person is compelled by force or imminent threat of force . . .

commits rape, a Class B felony.” Ind. Code § 35-42-4-1(a)(1) (2013).

[10] Wells contends no reasonable inference could be drawn from T.H’s testimony

that she was forced to perform oral sex during the early September episode,

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016 Page 5 of 10 which is the basis for the criminal deviate conduct conviction, nor that she was

forced to have sexual intercourse on September 18, which is the basis for the

rape conviction. He argues T.H. was not compelled by force or imminent

threat of force because both sex acts occurred after the physical attacks ended.

Although T.H.’s testimony was equivocal about her consent to perform oral sex

and have sexual intercourse, we conclude she was compelled to consent and

perform under threat of force in both instances. Our supreme court has stated,

“Force or threat of force may be shown even without evidence of the attacker’s

oral statement of intent or willingness to use a weapon and cause injury, if from

the circumstances it is reasonable to infer the attacker was willing to do so.”

Smith v. State, 500 N.E.2d 190, 192 (Ind. 1986) (quoting Lewis v. State, 440

N.E.2d 1125, 1127 (Ind. 1982)). Wells did not verbally threaten physical force

against T.H. if she refused to engage in sexual acts with him; nonetheless, a

threat can be reasonably inferred from the circumstances.

[11] During the early September incident, Wells punched T.H. and struck her with a

phone. When she ran to the kitchen, he followed and placed a knife on the

countertop. Although he had begun apologizing, the knife was in full view

when he requested and received oral sex from T.H. On September 18, Wells

strangled T.H. until she nearly lost consciousness and also gave her a black eye.

He requested intercourse and she initially answered “no,” but then he ripped off

her underwear and had intercourse with her anyway. In both cases, it is

reasonable to infer Wells was willing to exert force against T.H., given he had

already done so.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016 Page 6 of 10 [12] In Smith, 500 N.E.2d at 191, the defendant held a knife in his hand while raping

the victim. Although he did not explicitly threaten to use the knife against the

victim, the circumstances were sufficient to show that the victim was not acting

upon her own free will; rather, it was reasonable to infer she was acting under

threat of violence. Wells’ willingness to commit violence against T.H. is akin to

the perpetrator in Smith holding a knife throughout the assault. In both cases,

the victims knew that the defendants were readily able to commit violence

against them if they resisted. We therefore conclude the jury could reasonably

infer that T.H. was compelled by the imminent threat of force to agree to Wells’

sexual requests.

[13] Wells also argues he did not have the necessary mens rea for the commission of

criminal deviate conduct and rape against T.H. For both offenses, a person

must “knowingly or intentionally” engage the victim in specified sexual

conduct when “the other person is compelled by force or imminent threat of

force.” Ind. Code §§ 35-42-4-2(a), 35-42-4-1(a). “A person engages in conduct

‘knowingly’ if, when he engages in the conduct, he is aware of a high

probability that he is doing so.” Ind. Code § 35-41-2-2(b). “Knowledge, like

intent, is a mental state of the actor; therefore, the trier of fact must resort to

reasonable inferences based on the examination of the surrounding

circumstances to reasonably infer its existence.” Slone v. State, 912 N.E.2d 875,

880 (Ind. Ct. App. 2009), trans. denied.

[14] Wells argues because he asked, rather than demanded, that T.H. engage in the

sexual acts, and she did not verbally refuse his requests or otherwise rebuff him,

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016 Page 7 of 10 he “could not have had an awareness that he was compelling her by force.”

Brief of Appellant at 25. Yet, the evidence shows that immediately prior to the

first incident, Wells had been angrily hitting and punching T.H., causing her

pain and giving her a black eye. He placed a knife in plain view before

requesting T.H. give him oral sex. Similarly, prior to the second incident,

Wells angrily threw T.H. across their bed, hit her, and then put his hands

around her neck and squeezed until she became lightheaded and had difficulty

breathing. When Wells indicated he wanted to have sex with her, T.H. said no

and asked why he was doing this. Wells told her she “needed to do something

to make him feel better,” tr. at 162, and she ultimately submitted. It is

reasonable to infer from these surrounding circumstances that Wells was aware

T.H. was not participating willingly but only because she feared further

violence.

II. Double Jeopardy [15] Wells contends his convictions for Class D felony battery (Count VIII) and

Class A misdemeanor battery (Count X) violate Indiana’s Double Jeopardy

Clause, which provides, “No person shall be put in jeopardy twice for the same

offense.” Ind. Const. art. 1, § 14. We review whether multiple convictions

violate the Double Jeopardy Clause de novo. Jones v. State, 976 N.E.2d 1271,

1275 (Ind. Ct. App. 2012), trans. denied.

[16] Specifically, Wells argues these convictions violate the actual evidence test:

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016 Page 8 of 10 To show that two challenged offenses constitute the “same offense” in a claim of double jeopardy, a defendant must demonstrate a reasonable possibility that the evidentiary 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.

Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999).

[17] We conclude, and the State concedes, there is a reasonable possibility the jury

considered the same evidentiary facts to establish the essential elements of

misdemeanor battery and felony battery. Both charges alleged Wells touched

T.H. in a rude, insolent, or angry manner that resulted in pain and/or bruising

on September 18.1 Both convictions were based on T.H.’s testimony that Wells

hit or punched her with his hands on that night. The State’s closing argument

to the jury likewise failed to factually distinguish the two charges. See C.H. v.

State, 15 N.E.3d 1086, 1094 (Ind. Ct. App. 2014) (“On appeal, in determining

the facts used by the fact-finder, it is appropriate for a reviewing court to

examine the evidence presented, the charging information, arguments of

counsel, and any other factors that may have guided the fact-finder in making a

decision.”), trans. denied. As such, there is a reasonable possibility that the jury

considered the same evidence to convict Wells on each charge. We therefore

remand with instructions to vacate the lesser charge of misdemeanor battery.

1 The Class D felony charge additionally alleged that T.H. was a family or household member and that Wells committed the act in the presence of children under the age of sixteen. Ind. Code § 35-42-2-1(a)(2)(M) (2013).

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016 Page 9 of 10 See Richardson, 717 N.E.2d at 55 (remedying a double jeopardy violation by

vacating the conviction with “less severe penal consequences”).

Conclusion [18] There was sufficient evidence to support Wells’ criminal deviate conduct and

rape convictions, and we affirm those convictions. However, Wells’

convictions for both misdemeanor battery and felony battery arising out of a

single incident violate Indiana’s Double Jeopardy Clause. We therefore reverse

and remand with instructions for the trial court to vacate Wells’ conviction for

misdemeanor battery and amend the abstract of judgment accordingly.

[19] Affirmed in part, reversed in part, and remanded.

Barnes, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016 Page 10 of 10