Harold Baker v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 25, 2015
• Docket: 49A02-1412-CR-889
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 25 2015, 8:47 am 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 Michael R. Fisher Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Harold Baker, August 25, 2015 Appellant-Defendant, Court of Appeals Case No. 49A02-1412-CR-889 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Marc Rothenberg, Appellee-Plaintiff. Judge Trial Court Cause No. 49G02- 1402-FB-6044

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015 Page 1 of 13 STATEMENT OF THE CASE

[1] Appellant-Defendant, Harold Baker (Baker), appeals his conviction for rape, a

Class B felony, Ind. Code § 35-42-4-1(a)(1) (2013); criminal confinement, a

Class D felony, I.C. § 35-42-3-3(a)(1) (2013); possession of a narcotic drug, a

Class D felony, I.C. § 35-48-4-6(a) (2013); battery resulting in bodily injury, a

Class A misdemeanor, I.C. § 35-42-2-1(a)(1)(A) (2013); interference with the

reporting of a crime, a Class A misdemeanor, I.C. § 35-45-2-5(1) (2013); and

possession of marijuana, a Class A misdemeanor, I.C. § 35-48-4-11(1) (2013).

[2] We affirm.

ISSUES

[3] Baker raises two issues on appeal, which we restate as follows:

(1) Whether the State presented sufficient evidence beyond a reasonable doubt

to support Baker’s conviction for rape; and

(2) Whether Baker’s conviction and sentences for rape and criminal

confinement violate the constitutional prohibition against double jeopardy.

FACTS AND PROCEDURAL HISTORY

[4] In 2006, Baker and B.A. began dating and were involved in an on-again/off-

again romantic relationship for the next eight years. On February 4, 2014,

Baker spent the evening at B.A.’s house in Indianapolis, Marion County,

Indiana. At some point, Baker expressed interest in engaging in sexual

intercourse with B.A., but B.A. declined. That night, B.A. slept alone in her

bedroom and Baker slept in the bathroom.

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015 Page 2 of 13 [5] The next day, B.A. woke up at approximately 2:00 p.m. When she emerged

from her bedroom, Baker was sitting on the couch in the living room. She

observed that he was drinking whiskey and appeared to be “in a foul mood.”

(Tr. p. 74). Baker reiterated his desire for sexual intercourse, and B.A. again

refused. As B.A. walked into the kitchen, Baker, who was “complaining about

not having sex[,]” followed and pushed her down to the floor. (Tr. p. 105).

B.A. tried to stand, but Baker “hit [her] on the side of the face and knocked

[her] back down.” (Tr. p. 75). Baker then rolled B.A. onto her stomach and

held her down by the back of her neck as he laid down on top of her and

“yanked up [her] nightgown and [attempted] to jam his hand into [her] vagina.”

(Tr. p. 78). B.A., who was scared and struggling to breathe under Baker’s body

weight, then stated, “If this is what you want, then let’s go in the bedroom.”

(Tr. p. 79). At her suggestion, Baker stood, and the two went into B.A.’s

bedroom. B.A. positioned herself “on all fours” on the bed because she “didn’t

want to look at him.” (Tr. p. 80). Baker applied some lubricant and inserted

his penis into B.A.’s vagina. After a few minutes, Baker stopped the intercourse

and went to the bathroom to smoke a cigarette. B.A. did not know whether

Baker ejaculated.

[6] B.A. went to the bathroom to confront Baker about what had just happened.

The two began arguing, and Baker punched B.A. in the side of her face using a

closed fist. B.A. stated that she was going to call the police, so Baker

“chopp[ed] on her arm” until he could grab the cell phone out of her hand. (Tr.

p. 83). During this struggle, B.A. scratched Baker’s neck. Baker held the phone

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015 Page 3 of 13 over B.A.’s head and threatened to break it unless she forgave him. Once B.A.

agreed to forgive him, Baker returned her cell phone. B.A. then texted a friend

and asked her to call the police. A few minutes later, Baker rejoined B.A. in the

living room and informed her that he was in possession of her loaded, semi-

automatic handgun, which she normally kept hidden in her dresser drawer.

B.A. reported that Baker pointed the gun at her and subsequently ejected the

magazine and ensured the chamber was empty. Despite B.A.’s pleas, Baker

refused to give her the now-unloaded firearm. When the police arrived, Baker

concealed the gun in a rolled-up rug in the hallway.

[7] After speaking with B.A., the police officers placed Baker under arrest. During

the search incident to arrest, police officers discovered marijuana and heroin in

Baker’s pockets. Baker was transported to the Sex Crimes Office and detained

in an interview room. At some point when there was no other law enforcement

personnel present, Baker—who was not physically restrained—walked out of

the interview room and exited the building. He was found at his home the

following day and was re-arrested. However, because Baker had just ingested a

handful of pills, the officers transported him to the hospital to be treated for a

possible overdose. While he was in the hospital, the police also obtained a

search warrant to have hospital personnel obtain DNA samples from Baker.

[8] After the police left her home on the evening of the assault, B.A. drove herself

to the emergency room at Methodist Hospital for a sexual assault examination.

After interviewing B.A., Sexual Assault Nurse Examiner Danielle Ford (Nurse

Ford) conducted a physical assessment and documented B.A.’s various injuries.

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015 Page 4 of 13 Nurse Ford noted a purple bruise on B.A.’s right temporal area; “a bruise that

was painful to palpation” on the right side of her upper chest; “severe pain” on

the back part of B.A.’s neck; “an area of swelling and some bruising, purple

discoloration” in the middle of B.A.’s back; a bruised wrist; and

scratches/scrapes on B.A.’s neck, elbow, and forearm. (Tr. pp. 172, 174-75).

During the pelvic portion of the examination, Nurse Ford found no injuries to

B.A.’s genital organs. However, Nurse Ford explained that the absence of

genital injuries during a sexual assault examination is “not uncommon” due to

the elasticity of a vagina. (Tr. p. 183). Forensic serology testing and DNA

analysis confirmed the presence of Baker’s seminal fluid inside B.A.’s vagina.

DNA analysis also indicated the presence of Baker’s skin cells underneath

B.A.’s fingernails.

[9] On September 21, 2014, the State filed an amended Information, charging

Baker with Count I, rape, a Class B felony, I.C. § 35-42-4-1(a)(1) (2013); Count

II, criminal confinement, a Class D felony, I.C. § 35-42-3-3(a)(1) (2013); Count

III, possession of a narcotic drug, a Class D felony, I.C. § 35-48-4-6(a) (2013);

Count IV, battery resulting in bodily injury, a Class A misdemeanor, I.C. § 35-

42-2-1(a)(1)(A) (2013); Count V, pointing a firearm at another person, a Class

D felony, I.C. § 35-47-4-3(b) (2013); Count VI, interference with the reporting

of a crime, a Class A misdemeanor, I.C. § 35-45-2-5(1) (2013); and Count VII,

possession of marijuana, a Class A misdemeanor, I.C. § 35-48-4-11(1) (2013).

[10] On September 22-23, 2014, the trial court conducted a jury trial. At the close of

the evidence, the jury returned a guilty verdict on Counts I, II, III, IV, VI, and

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015 Page 5 of 13 VII. The trial court entered a judgment of conviction on the same and a

judgment of acquittal as to Count V. On December 3, 2014, the trial court held

a sentencing hearing. Based on double jeopardy concerns, the trial court

merged Count IV, battery resulting in bodily injury, into Count VI, interference

with the reporting of a crime. Thereafter, the trial court imposed fifteen years,

with three years suspended, for rape; two years for criminal confinement; two

years for possession of a narcotic drug; one year for interference with the

reporting of a crime; and 180 days for possession of marijuana. The trial court

ordered all Counts to run concurrently, resulting in an aggregate sentence of

twelve years executed in the Indiana Department of Correction and three years

suspended to probation.

[11] Baker now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Sufficiency of Evidence

[12] Baker first claims that there is insufficient evidence to support his rape

conviction. When reviewing a claim of insufficient evidence, our court does

not reweigh evidence or assess the credibility of witnesses. Gale v. State, 882

N.E.2d 808, 816-17 (Ind. Ct. App. 2008). Rather, we will consider only the

evidence and any reasonable inferences therefrom that support the verdict. Id.

at 817. So long as there is “evidence of probative value from which a

reasonable trier of fact could find the defendant guilty beyond a reasonable

doubt[,]” we will affirm the conviction. Id.

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015 Page 6 of 13 [13] In order to convict Baker of rape as a Class B felony, the State was required to

prove that he

knowingly or intentionally ha[d] sexual intercourse with a member of the opposite sex when: (1) the other person [was] compelled by force or imminent threat of force; (2) the other person [was] unaware that the sexual intercourse [was] occurring; or (3) the other person [was] so mentally disabled or deficient that consent to sexual intercourse [could not] be given.

I.C. § 35-42-4-1(a) (2013).

A. Force or Imminent Threat of Force

[14] On appeal, Baker contends that “[e]ven if the evidence supports the conviction

for confinement arising out of the acts in the kitchen, it does not show that the

act of sexual intercourse that occurred later in the bedroom was compelled by

force or threat of force.” (Appellant’s Br. p. 7). Instead, he asserts that the

uncontroverted evidence establishes “that B.A. suggested that they go into the

bedroom to have sex” and that B.A. “cooperated without resistance.”

(Appellant’s Br. p. 7).

[15] The element of rape requiring proof that the victim was “compelled by force or

imminent threat of force”

demonstrates that it is the victim’s perspective, not the assailant’s, from which the presence or absence of forceful compulsion is to be determined. This is a subjective test that looks to the victim’s perception of the circumstances surrounding

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015 Page 7 of 13 the incident in question. The issue is thus whether the victim perceived the aggressor’s force or imminent threat of force as compelling her compliance.

Newbill v. State, 884 N.E.2d 383, 392 (Ind. Ct. App. 2008) (quoting Tobias v.

State, 666 N.E.2d 68, 72 (Ind. 1996)), trans. denied. With respect to evidence

sufficiency, “‘the force necessary to sustain’ a conviction of rape ‘need not be

physical,’ and ‘it may be inferred from the circumstances.’” Id. (quoting Bryant

v. State, 644 N.E.2d 859, 860 (Ind. 1994)). Moreover, “‘[f]orce 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.’” Jones v. State, 589 N.E.2d

241, 243 (Ind. 1992) (quoting Lewis v. State, 440 N.E.2d 1125, 1127 (Ind. 1982),

cert. denied, 461 U.S. 915 (1983)).

[16] In arguing that B.A. was not compelled by force or threat of force, Baker relies

on Jones, in which our supreme court found the evidence did not support a

finding that the defendant

used force or threats to encourage [the alleged victim] to engage in sexual intercourse. He asked her three times, and on the third time she “just let him have it.” There was no evidence of any previous threats or force against [the alleged victim] from which the trier of fact could infer a fear of force or threats on this occasion.

Id. We, however, find the present case clearly distinguishable from Jones.

Here, before B.A. suggested that they go to the bedroom, Baker had followed

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015 Page 8 of 13 her into the kitchen—complaining that he was being denied sex and accusing

her of infidelity—and knocked her down to the floor. When she tried to stand,

Baker hit her in the face and shoved her back down. As he confined B.A. to the

floor, Baker “yanked up [her] nightgown” and roughly attempted “to jam his

hand into [her] vagina.” (Tr. p. 78). The photographs admitted at trial depicted

bruises on B.A.’s face, chest, back, and neck. Furthermore, B.A. testified that

she only offered to go into the bedroom with Baker because “I was terrified. I

couldn’t breathe. I didn’t know if I was going to die or going to be raped or I

didn’t know what was going to happen and I was afraid. So, I wanted to get

myself out of that position.” (Tr. p. 92). From this clear display of force

immediately prior to the sexual intercourse, we find that a trier of fact could

reasonably infer that B.A. was compelled by the fear of force or the imminent

threat of force.

B. Mistake of Fact: Consent

[17] Baker further asserts that, based on B.A.’s behavior and apparent consent, he

had no reason to believe that she was being compelled by force or imminent

threat of force and, therefore, he could not have acted knowingly as the rape

statute requires. “Although lack of consent is not an element of rape . . . per se,

evidence which has a tendency to prove either consent or lack of consent is

relevant to the element of compulsion.” Nolan v. State, 863 N.E.2d 398, 403

(Ind. Ct. App. 2007), trans. denied. A defendant may raise consent as an

affirmative defense under the mistake-of-fact statute, which provides that “[i]t is

a defense that the person who engaged in the prohibited conduct was

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015 Page 9 of 13 reasonably mistaken about a matter of fact, if the mistake negates the

culpability required for commission of the offense.” I.C. § 35-41-3-7.

[18] Although Baker now posits that his rape conviction should be vacated because

he engaged in consensual sexual intercourse with B.A., as the State points out,

“at no point did [Baker] offer the trial court a jury instruction on the mistake-of-

fact defense.” Nolan, 863 N.E.2d at 404. Therefore, Baker has waived the

matter for appellate review. Id. Waiver notwithstanding, we nevertheless find

that there is insufficient evidence demonstrating that Baker made a reasonable

mistake of fact as to whether B.A. consented. It is well established that, “[i]n

order for mistake of fact to be a valid defense, three elements must be satisfied:

(1) the mistake must be honest and reasonable; (2) the mistake must be about a

matter of fact; and (3) the mistake must negate the culpability required to

commit the crime.” Id. (alteration in original).

[19] As to the first element, “[h]onesty is a subjective test dealing with what

appellant actually believed” whereas “[r]easonableness is an objective test

inquiring what a reasonable man situated in similar circumstances would do.”

Id. (first alteration in original). We must find some evidence of both. Id.

Looking again to the circumstances surrounding B.A.’s plea to “go in the

bedroom[,]” we cannot agree that Baker could have reasonably been mistaken

that she was consenting to sexual intercourse. (Tr. p. 79). Rather, in light of

the fact that B.A. had just denied Baker’s request for sex, following which Baker

shoved her down to the floor twice, grabbed her by the back of her neck, hit her

in the face, and tried to force his hand into her vagina, we find that no

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015 Page 10 of 13 reasonable person would believe that B.A. spontaneously consented to have

sexual intercourse with Baker. Accordingly, “even if [Baker] had properly

preserved his appeal of the mistake-of-fact defense, that defense would fail as a

matter of law.” Nolan, 863 N.E.2d at 404.

II. Double Jeopardy

[20] Baker next claims that his conviction and sentences for both rape and criminal

confinement violate the Double Jeopardy Clause of the Indiana Constitution.

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, for purposes of double jeopardy, two offenses are the same

offense if, “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.”

Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). Our court reviews de novo

whether a defendant’s conviction violates the Double Jeopardy Clause.

Goldsberry v. State, 821 N.E.2d 447, 458 (Ind. Ct. App. 2005).

[21] On appeal, Baker contends that his conviction for rape and criminal

confinement violate the actual evidence test because “the only force employed

to commit the rape was precisely the same force used to commit the

confinement.” (Appellant’s Br. p. 13). Under the actual evidence test for

double jeopardy, our court must “examine the actual evidence presented at trial

in order to determine whether each challenged offense was established by

separate and distinct facts.” Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013).

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015 Page 11 of 13 “[W]e must conclude that there is ‘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.’” Id. (quoting Richardson, 717 N.E.2d at 53). A

“‘reasonable possibility’ that the jury used the same facts to reach two

convictions requires substantially more than a logical possibility.” Id. (quoting

Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008)). We will find no double

jeopardy violation if “the evidentiary facts establishing the essential elements of

one offense also establish only one or even several, but not all, of the essential

elements of a second offense.” Id. (quoting Spivey v. State, 761 N.E.2d 831, 833

(Ind. 2002)). On review, our court will “evaluate the evidence from the jury’s

perspective and may consider the charging information, jury instructions, and

arguments of counsel.” Id. at 720.

[22] As already discussed, Baker’s conviction of rape as a Class B felony required

the State to establish that he “knowingly or intentionally ha[d] sexual

intercourse with [B.A.] when . . . [B.A.] [was] compelled by force or imminent

threat of force.” I.C. § 35-42-4-1(a)(1) (2013). In turn, Baker’s conviction of

criminal confinement as a Class D felony required proof that he “knowingly or

intentionally . . . confine[d] [B.A.] without [B.A.’s] consent.” I.C. § 35-42-3-

3(a)(1) (2013). We find that the jury was presented with sufficiently distinct

evidence to separately establish the elements of each offense. Contrary to

Baker’s assertion, the force used to compel sexual intercourse greatly exceeded

the confinement of B.A. The evidence establishes that Baker—who had been

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015 Page 12 of 13 expressing his anger about being denied sexual intercourse and had accused

B.A. of infidelity—knocked B.A. to the floor twice and hit her across the face.

He then pulled up her nightgown and tried to force his hand into her vagina

until she eventually agreed, out of fear, to submit to sexual intercourse. On the

other hand, the elements of criminal confinement are satisfied by the evidence

demonstrating that Baker held B.A. down on the floor by lying on top of her

with the full weight of his body as she struggled to breathe and free herself.

Because we do not find a “reasonable possibility” that the jury relied on the

same evidentiary facts to establish the essential elements of both rape and

criminal confinement, Baker’s conviction does not violate Indiana’s Double

Jeopardy Clause. Garrett, 992 N.E.2d at 719.

CONCLUSION

[23] Based on the foregoing, we conclude that there is sufficient evidence to sustain

Baker’s conviction of rape as a Class B felony beyond a reasonable doubt. We

further conclude that Baker’s conviction for both Class B felony rape and Class

D felony criminal confinement does not run afoul of Indiana’s Double

Jeopardy Clause.

[24] Affirmed.

[25] Bailey, J. and Barnes, J. concur

Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015 Page 13 of 13