MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Nov 25 2015, 7:28 am Memorandum Decision shall not be regarded as precedent or cited before any 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 Cara Schaefer Wieneke Gregory F. Zoeller Wieneke Law Office, LLC Attorney General of Indiana Plainfield, Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Enzert G. Lewis, November 25, 2015
Appellant-Defendant, Court of Appeals Case No. 84A05-1503-CR-109 v. Appeal from the Vigo Superior Court. The Honorable David R. Bolk, State of Indiana, Judge. Appellee-Plaintiff. Cause No. 84D03-1211-MR-3652
Friedlander, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-109 |November 25, 2015 Page 1 of 15 [1] Following a jury trial, Enzert G. Lewis appeals his convictions of altering the 1 scene of a death, a Class D felony, and obstruction of justice, a Class D 2 felony. We affirm.
[2] Lewis raises two issues, which we restate as:
1. Whether there is sufficient evidence to sustain Lewis’s conviction for altering the scene of a death. 2. Whether Lewis’s convictions for altering the scene of a death and obstruction of justice violate Indiana’s constitutional prohibition of double jeopardy.
[3] Lewis physically abused his girlfriend, Allyson. In January and February 2011,
Regina Olsen lived with them and saw them argue every day. She also saw
Lewis strike Allyson in the face with a closed fist on several occasions. In July
2011, witnesses saw Lewis repeatedly strike Allyson with a closed fist on a
public street. The police were called, and they arrested Lewis. In August 2011,
police responded to a 911 call from Lewis and Allyson’s residence. A detective
noticed that Allyson was upset and crying, and she had visible injuries to her
1 Ind. Code section 36-2-14-17(d) (West, Westlaw 2007). The version of the governing statute, i.e., Ind. Code § 36-2-14-17, in effect at the time this offense was committed classified it as a Class D felony. This statute has since been revised and in its current form reclassifies the offense as a Level 6 felony. See Ind. Code § 36-2-14- 17 (West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly legislation effective through June 28, 2015). The new classification, however, applies only to offenses committed on or after July 1, 2014. See id. Because this offense was committed prior to that date, it retains the former classification. 2 Ind. Code section 35-44.1-2-2 (West, Westlaw 2012). The version of the governing statute, i.e., Ind. Code § 35-44.1-2-2, in effect at the time this offense was committed classified it as a Class D felony. This statute has since been revised and in its current form reclassifies the offense as a Level 6 felony. See Ind. Code § 35-44.1- 2-2 (West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly legislation effective through June 28, 2015). The new classification, however, applies only to offenses committed on or after July 1, 2014. See id. Because this offense was committed prior to that date, it retains the former classification.
Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-109 |November 25, 2015 Page 2 of 15 neck. Allyson seemed fearful and kept looking in Lewis’s direction. Lewis was
arrested.
[4] Lewis and Allyson married in May 2012. Nikkaray Hughes lived with them in
September 2012. She saw them argue frequently and saw Lewis shove Allyson
several times. Hughes heard Lewis tell Allyson, “It was till [sic] death do us
part, and he meant it.” Tr. p. 655.
[5] Later in September 2012, Lewis and Allyson separated, and Allyson stated that
she wanted a divorce. Allyson stayed in what had been their home, an
apartment on Fourteenth Street in Terre Haute. Lewis moved in with his
cousin, Lincoln Shaw, who also lived in Terre Haute. Although Lewis moved
out of the apartment, he stopped by Allyson’s apartment “almost every day” to
see if she was there. Id. at 657. Lewis accused Allyson of cheating on him.
Allyson tried to avoid Lewis.
[6] Lewis and Allyson had missed several rent payments on the Fourteenth Street
apartment. They went to their landlord’s office on October 3, 2012, and the
office manager told them to move out by the following weekend.
[7] On October 6, Lewis and Allyson attended a homecoming celebration with
Shaw and several other people. On October 9, 2012, an employee of the
landlord delivered moving boxes to Allyson at the apartment. Also in early
October, Allyson’s neighbor Janice Tetrick saw Allyson get into a car with
Lewis. Tetrick never saw Allyson again, but she saw Lewis enter Allyson’s
apartment every second or third day after that. He used a key to enter.
Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-109 |November 25, 2015 Page 3 of 15 [8] Donald M. Riley was Lewis’s friend and operated a car washing and detailing
business. Detailing a car consists of shampooing the carpets, seats, and trunk,
cleaning the engine, and washing the exterior. In early October, a few days
after the October 6 homecoming celebration, Lewis arrived at Riley’s business
and asked Riley to detail his car. In the past, Riley had washed the exterior of
Lewis’s car, but Lewis had never asked Riley to detail it. Riley declined
Lewis’s request because he had just closed for the day.
[9] During the same period of time after the homecoming celebration, Shaw noted
that his cousin, Lewis, was absent for two to three days and did not answer his
phone. When Lewis returned to Shaw’s house, Lewis looked tired, worried,
and had red eyes. He walked with a limp and had a swollen left hand. Shaw
asked him where he had been. Lewis told Shaw he had been in Greencastle
with a supervisor from work and a girl. He also told Shaw “I done [sic] the
bitch.” Id. at 1594.
[10] In October 2012, Aaliyah Ward encountered Lewis. He said that he and
Allyson had a court date, but Allyson “was never gonna make it to court.” Id.
at 538. During that same month, Katie Wallace spoke with Lewis, and he
asked her, “How do you divorce someone who is dead?” Id. at 578. Wallace
observed that one of the knuckles on his left hand was cut.
[11] Lewis worked at a factory in Brazil, Indiana. In early to middle October 2012,
Lewis informed his employer’s human resources administrator that Allyson was
Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-109 |November 25, 2015 Page 4 of 15 divorcing him and he would have to move. A week later, Lewis told the same
person, “Allyson is no more.” Id. at 886.
[12] On October 15, 2012, an employee of Allyson’s landlord entered the apartment
to check its condition. No one was home. Food had been left sitting out on a
table. Clothes were scattered on the floor in the bedroom and were hung up in
the bedroom closet. By contrast, the bathroom was clean.
[13] On November 3, 2012, Lewis arrived at Olsen’s home. He said that Allyson
had left town and would not be coming back. Lewis also told Olsen that she
could take anything she wanted from the Fourteenth Street apartment. Lewis,
Olsen, and several of her acquaintances went to the apartment. Allyson’s work
identification card, clothing, jewelry, photographs, computer, and furniture
were still there. The situation was “suspicious” to several of the people who
accompanied Olsen. Id. at 867. Olsen took some of Allyson’s personal items
out of the apartment for safekeeping, and her companions took some of the
furniture.
[14] On the afternoon of November 3, 2012, a person found a badly decomposed
body in rural Vigo County. The body was twenty feet from a road, in a shallow
ditch. Brush and a guardrail along the road prevented the body from being
easily seen.
[15] Detective Jason Fischer of the Vigo County Sheriff’s Department was
dispatched to the scene to collect evidence. The body was dressed in pants and
underwear but no shirt. It appeared to Detective Fischer from the way that the
Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-109 |November 25, 2015 Page 5 of 15 body was positioned that it had been dumped there. Detective Fischer saw
insect larvae on the body. He called Dr. Neal Haskell, a forensic entomologist,
for advice, and then he and another officer collected some of the larvae as
directed by Dr. Haskell.
[16] Detective Fischer and other officers returned to the scene two days later to
examine the surroundings in daylight. He found a plastic bag that contained an
empty one-gallon bottle. The bottle had contained bleach. The bag and the
bottle were on the other side of a fence from the body, approximately forty feet
away. Detective Fischer determined that the bottle had been left there recently.
[17] Meanwhile, Dr. Roland Kohr conducted an autopsy on the unidentified body
on November 5, 2012. During his examination, Dr. Kohr ascertained that the
upper jaw and the lower half of the skull, “from the mid-point of the nose
down,” were detached from the rest of the skull. Id. at 773. Most of the teeth
were missing, and both orbital bones, which frame the eyeballs, were damaged.
It was “a highly unusual injury.” Id. That injury was the cause of death, and it
resulted from a “very concentrated force” being applied to that portion of the
face. Id. at 791. A person wearing steel-toed boots could have inflicted the
injury with a kick or by stomping on the face with a boot’s heel. The injury
would have resulted in heavy bleeding, instant unconsciousness, and death
within minutes.
[18] In Dr. Kohr’s opinion, the body had been transported to the location where it
was found. The body was found 4.2 miles south of U.S. Highway 40. That
Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-109 |November 25, 2015 Page 6 of 15 highway was the most direct route between Lewis’s residence and his place of
work.
[19] On November 6, 2012, Allyson’s mother heard on the news that a body had
been discovered. She had not spoken with Allyson since September and was
concerned, so she called the police. Allyson’s dental records were obtained,
and a forensic odontologist confirmed that the body was Allyson’s.
[20] Also on November 6, Lewis approached his cousin, Shaw, and told Shaw that
he saw on the news that Allyson’s body had been found. Lewis further stated
that he had killed Allyson by kicking her in the face. Lewis told Shaw that he
threw away his bloody clothes and his cellphone. Officers took Lewis into
custody that night and impounded the car he had been driving.
[21] Later on November 6, 2012, police officers searched Allyson’s apartment
pursuant to a search warrant. There was mail in the mailbox. The most recent
mail bore a postmark of October 18. In the kitchen, someone had put pieces of
cardboard in the windows, which blocked the view into the room. None of the
other windows in the apartment were blocked. Officers discovered a paint tray,
cans of paint, and paint rollers in the kitchen. The color of paint on the kitchen
walls matched the color of the paint on the rollers and in the paint tray. A bowl
containing a substance later determined to be bleach was sitting on the stove,
and officers later discovered a bottle of bleach in a cabinet. There were dirty
dishes in the kitchen sink. Officers found a trash bag that contained, among
other items, Allyson’s Social Security card. It had been torn into pieces.
Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-109 |November 25, 2015 Page 7 of 15 [22] Elsewhere in the apartment, the bathroom was clean. The living room did not
contain any furniture, but there was a bag of trash that contained, among other
items, washrags that were stained with bleach and Allyson’s Work One
unemployment benefit card. Allyson’s clothes and some of her personal items
were still present in the bedroom.
[23] Next, the officers brought to the apartment two dogs that were trained to locate
the odor of human cadaver material, including trace amounts of blood. The
dogs were separated and allowed into the apartment one at a time. Both dogs
alerted to the odor of cadaver material in the kitchen. In addition, one of the
dogs alerted to the odor of cadaver material in the bathroom.
[24] The dogs were taken to Shaw’s house, where Lewis had been living. Again, the
dogs were allowed into the house one at a time. The first dog alerted to the
odor of cadaver material in the closet of Lewis’s bedroom. A police officer
began to move clothes from the closet onto Lewis’s bed, but the dog’s handler
stopped the officer because she was worried that the scent of cadaver material
could transfer to the bed. The items were returned to the closet, and the dog
was unable to pinpoint the source of the odor.
[25] When the second dog entered Shaw’s house, it went to Lewis’s bedroom. That
dog alerted to the odor of cadaver material in the closet. It also alerted to the
presence of the odor on the bed. That dog also could not pinpoint the source of
the odor in the closet.
Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-109 |November 25, 2015 Page 8 of 15 [26] Finally, both dogs were taken to Lewis’s car, which the police had kept in a
secure location. The dogs were allowed to sniff the car separately. One of the
dogs alerted to the odor of cadaver material in the car, on the passenger side.
Officers searched the car and found a bottle of bleach and a bottle that
contained an unspecified caustic liquid.
[27] The police seized several items they found in Allyson’s apartment, Lewis’s
bedroom, and Lewis’s car. They sent those items, along with some of the items
they found near Allyson’s body, to the State Police Laboratory for DNA
testing. Testing did not yield any incriminating information. Forensic biologist
Angela Gibbs, who performed the testing, indicated that in her experience the
presence of bleach on an item can hinder the process of generating a DNA
profile for analysis.
[28] Dr. Haskell, the forensic entomologist who Detective Fischer had called for
advice, was present at the autopsy with several students from the forensic
science course he taught. During the autopsy, one of the students collected
insect specimens from Allyson’s body under Dr. Haskell’s direction. Next, Dr.
Haskell accompanied police officers to the spot where the body had been found
and collected additional specimens. He has a process for estimating when
insects began to colonize a body, which is to say when a person died, based on
an analysis of the types of insects found on the body, their ages, and the
weather conditions in the area where the body was found. Based upon his
analysis of the specimens that were collected on November 3 and November 5
Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-109 |November 25, 2015 Page 9 of 15 and the weather conditions, Dr. Haskell concluded that insects began to
colonize Allyson’s body between October 4 and October 11, 2012.
[29] The police questioned Lewis on the night of November 6, 2012. He said that he
last saw Allyson in September and had not been back to the apartment after he
moved out on September 16. Lewis was jailed. During Lewis’s incarceration,
he told fellow inmate Brian Thompson that he had killed Allyson and that, at
the time of her death, he had a pending criminal case involving Allyson. Lewis
further stated that he had dumped Allyson’s body on the way to work and that
he was worried about his fingerprints being found on a bleach bottle that he had
left at the scene. Lewis also told Thompson that he had cleaned his car and an
apartment with bleach and had discarded his cellphone.
[30] The State charged Lewis with murder, altering the scene of a death, obstruction
of justice, and invasion of privacy. The trial court severed the invasion of
privacy charge from the other charges. A jury determined that Lewis was guilty
of murder, altering the scene of a death, and obstruction of justice. The trial
court imposed a sentence, and this appeal followed.
1.
[31] Lewis argues that there is insufficient evidence to sustain his conviction of
altering the scene of a death. When we review the sufficiency of the evidence to
support a criminal conviction, we consider only the probative evidence and
reasonable inferences supporting the verdict. Buelna v. State, 20 N.E.3d 137
(Ind. 2014). We neither reweigh the evidence nor assess witness credibility. Id.
Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-109 |November 25, 2015 Page 10 of 15 We will affirm the conviction unless no reasonable factfinder could conclude
the elements of the crime were proven beyond a reasonable doubt. Id. A
verdict may be sustained by circumstantial evidence alone if that circumstantial
evidence supports a reasonable inference of guilt. Houston v. State, 730 N.E.2d
1247 (Ind. 2000).
[32] To convict Lewis of altering the scene of a death as charged, the State was
required to prove beyond a reasonable doubt that: (1) Lewis (2) with the intent
to hinder a criminal investigation (3) and without the permission of the coroner
or a law enforcement officer (4) knowingly or intentionally (5) altered (6)
Allyson’s scene of death (7) after Allyson died from violence and/or in an
apparently suspicious, unusual, or unnatural manner. Ind. Code § 36-2-14-17.
[33] In this appeal, there is no dispute that Lewis murdered Allyson. Detective
Fischer and Dr. Kohr both testified that Allyson was not murdered at the spot
where her body was found, but that someone had dumped her body there.
Furthermore, dogs that were trained to detect human cadaver material,
including blood, detected such material in the kitchen of her apartment and in
Lewis’s room at his cousin’s home. One of the dogs detected human cadaver
material in Lewis’s car. In addition, Lewis told Thompson that he had dumped
Allyson’s body on his way to work and thoroughly cleaned his car and an
apartment. Lewis had asked a friend to detail his car. The body was found 4.2
miles south of U.S. Highway 40, which was the most direct route between
Lewis’s residence and his workplace. This evidence is sufficient to establish
Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-109 |November 25, 2015 Page 11 of 15 beyond a reasonable doubt that Lewis altered the scene of a death by moving
Allyson’s body after murdering her.
[34] Lewis points to an expert witness’s testimony that the dogs’ detection of human
remains is merely presumptive and should be confirmed with further testing.
This is a request to reweigh the evidence, which our standard of review forbids.
The evidence is sufficient to sustain Lewis’s conviction.
2.
[35] Lewis claims that his convictions for altering the scene of a death and
obstruction of justice violate Indiana’s constitutional prohibition of double
jeopardy. Article I, section 14 of the Indiana Constitution provides, in relevant
part: “No person shall be put in jeopardy twice for the same offense.” We
review de novo whether a defendant’s convictions violate the Indiana Double
Jeopardy Clause. Glenn v. State, 999 N.E.2d 859 (Ind. Ct. App. 2013).
[36] Two or more offenses are the “same offense,” in violation of section 14, if the
essential elements of one challenged offense also establish the essential elements
of another challenged offense. Sistrunk v. State, 36 N.E.3d 1051 (Ind. 2015).
We may consider the statutory elements of the challenged crimes or the actual
evidence used to convict the defendant of those crimes. Id.
[37] Lewis concedes that the statutory elements of the two crimes are not the same
and instead asserts that the same evidence was the basis for both of his
convictions. Under the “actual evidence” portion of Indiana’s Double
Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-109 |November 25, 2015 Page 12 of 15 Jeopardy Clause analysis, we must determine whether there is a reasonable
possibility that the evidentiary facts used by the fact-finder to establish elements
of one offense may have also been used to establish the essential elements of a
second challenged offense. Sloan v. State, 947 N.E.2d 917 (Ind. 2011).
Application of the actual-evidence test requires a reviewing court to look at the
evidence presented at trial and decide whether each challenged offense was
established by separate, distinct facts. Id. It is appropriate to consider the
charging information, jury instructions, and arguments of counsel. Lee v. State,
892 N.E.2d 1231 (Ind. 2008). Section 14 permits convictions for multiple
offenses committed in a protracted criminal episode when the case is prosecuted
in a manner that ensures that multiple guilty verdicts are not based on the same
evidentiary facts. Garrett v. State, 992 N.E.2d 710 (Ind. 2013).
[38] The State contends that Lewis committed the crime of altering the scene of a
death by moving Allyson’s body and separately committed the crime of
obstruction of justice by cleaning Allyson’s apartment to conceal the murder.
The State further argues that the jury was informed that each crime was
supported by separate evidence and was provided with the evidence.
[39] In the charging information, the State alleged that Lewis committed the offense
of altering the scene of death by “alter[ing] the scene of death of Allyson
Lewis.” Appellant’s App. p. 25. The State further alleged that Lewis
committed the offense of obstruction of justice by “removing and/or destroying
evidence related to the death of Allyson Lewis, nee Elmi including but not
limited to teeth, blood, and other trace evidence.” Id. Thus, the information
Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-109 |November 25, 2015 Page 13 of 15 specified that Lewis obstructed justice by cleaning up her blood and teeth. The
trial court included the charging information in its preliminary and final jury
instructions.
[40] The court also separately defined the offenses of altering the scene of a death
and obstruction of justice in its jury instructions. In relevant part, the court
instructed the jury that Lewis was alleged to have committed altering the scene
of a death by “Alter[ing] the scene of the death of Allyson Lewis, nee Elmi.”
Id. at 388, 411. The court further stated that Lewis was alleged to have
committed obstruction of justice by “Alter[ing], damag[ing] or remov[ing] . . .
A record, document, or thing . . . With intent to prevent it from being produced
or used as evidence in an official proceeding or investigation.” Id. at 389, 412.
[41] At trial, the State presented separate evidence for each conviction. The State
established that Lewis moved Allyson’s body from the scene of the murder, her
apartment, to rural Vigo County. The State then established that Lewis
thoroughly cleaned Allyson’s apartment and his car to eliminate all traces of the
murder, including her blood.
[42] Finally, we turn to counsel’s arguments. During the State’s rebuttal closing
argument, the prosecutor told the jury:
There has been a substantial amount of evidence of why we know the Defendant murdered his wife, Allyson. And the other charges go right along with it. When you look at those, same thing. We know the body was moved; we know evidence was destroyed; it’s a matter of who did it. The killer did it. The Defendant.
Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-109 |November 25, 2015 Page 14 of 15 Tr. pp. 1713-14.
[43] The State’s closing argument adequately informed the jury which separate acts
supported the offenses of altering the scene of a death and obstruction of justice,
and the State provided ample evidence in support of both charges. Lewis has
not established a reasonable possibility that the jury used the same evidence to
support both convictions, and his double jeopardy claim must fail. See Ellis v
State, 29 N.E.3d 792 (Ind. Ct. App. 2015) (State’s evidence and arguments to
the jury established that there was no violation of the actual evidence test),
trans. denied.
[44] For the reasons stated above, we affirm the judgment of the trial court.
[45] Judgment affirmed.
Robb, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 84A05-1503-CR-109 |November 25, 2015 Page 15 of 15