Isaiah Marki Walker v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 22, 2017
• Docket: 46A03-1604-CR-870
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded FILED as precedent or cited before any court except for the purpose of establishing the defense of Jun 22 2017, 6:11 am

res judicata, collateral estoppel, or the law of CLERK Indiana Supreme Court the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer L. Koethe Curtis T. Hill, Jr. LaPorte, Indiana Attorney General of Indiana Angela N. Sanchez Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Isaiah Marki Walker, June 22, 2017 Appellant-Defendant, Court of Appeals Case No. 46A03-1604-CR-870 v. Appeal from the LaPorte Superior Court State of Indiana, The Honorable Michael S. Appellee-Plaintiff Bergerson, Judge Trial Court Cause No. 46D01-1506-F3-494

Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-870 | June 22, 2017 Page 1 of 9 Case Summary

[1] Isaiah Walker appeals his conviction for Level 3 felony rape. He contends that

the trial court abused its discretion by denying his request for a continuance

after the State failed to include the alleged victim on its witness list filed shortly

before the jury trial. Walker also argues that he was entitled to an instruction

on the lesser included offense of battery.

[2] We affirm.

Facts & Procedural History

[3] Several months prior to May 2015, Walker reached out to D.C. on Facebook.

The two had never met but Walker knew D.C.’s boyfriend, Juwan Carwell.

After Carwell and D.C. broke up, Walker increased his communications with

D.C. via Facebook.

[4] On May 5, 2015, Walker and D.C. arranged their first meeting. He was to walk

eighteen-year-old D.C. to school the following day. D.C. had recently started

at this new school, which was a special school that met for only a few hours

each day. D.C. suffers from a seizure disorder and has associated learning

difficulties that have resulted in her being held back in school. D.C. walked to

school each day and always arrived on time and was neat and tidy in her

appearance.

[5] Walker arrived around 10:00 a.m. at D.C.’s home, and she met him outside.

They began the forty-five-minute walk to her school. During the walk, Walker

Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-870 | June 22, 2017 Page 2 of 9 and D.C. talked about several things. At some point, he asked D.C. if she and

Carwell ever had sex. D.C. said they had not. Walker then indicated that he

would like to have sex with her. She declined Walker’s offer, indicating that

she was not ready.

[6] As they approached an alley, Walker grabbed D.C.’s wrist tightly and pulled

her down the alley. She tried to pull away, but he kept assuring her that

everything would be okay and that nothing was going to happen. Walker led

D.C. down the alley and eventually let go of her arm. When they came to the

end of the alley, D.C. tried to walk in the direction of her school. Walker

grabbed her arm again and pulled her down another alley. D.C. was frightened

and again tried unsuccessfully to free her arm. She told Walker that she did not

want to go and was just trying to get to school. Walker told her to trust him.

[7] Walker took D.C. to an abandoned house in a secluded area. After looking

around, he directed her up some outdoor stairs to a landing. D.C. turned to

walk back down the stairs and then Walker said, “Let’s have sex.” Transcript at

225. D.C. said no, she was not ready for sex, and she wanted to go to school.

Walker proceeded to unfasten her pants and then his own. He sat her down

and gently pushed her back onto the landing. He then raised her legs toward

her chest and placed his penis insider her vagina.

[8] D.C. repeatedly told Walker to stop and that it hurt. She told him that she did

not want to do this, and she tried to push him away. Walker responded, “Let

me cum first.” Id. at 227. After he ejaculated, Walker pulled up his pants.

Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-870 | June 22, 2017 Page 3 of 9 Scared that Walker might hurt her further, D.C. acted like she was okay and

pulled her pants up. The two walked toward the school but when Walker was

stopped by friends, D.C. quickly continued on her way. Walker called after

her, “I love you babe.” Id. at 230.

[9] When D.C. arrived at school, she was crying and her hair and clothes were

disheveled. She immediately informed her principal that she had been raped.

D.C. was crying, shaking, and sobbing so hard that she had trouble breathing as

she recounted the events. After police responded to the 911 call, D.C. took an

officer to the abandoned house. She was then taken to the hospital for a sexual

assault examination. The nurse observed a three- or four-inch red area on

D.C.’s arm, a small open tear below her vagina, and red friction areas on each

side of her vaginal valve. Subsequent testing of items in the rape kit revealed

Walker’s DNA and semen.

[10] Police interviewed Walker on May 12, 2015. He initially denied knowing

D.C. and then admitted knowing her but insisted they had never had sex. Later

in the interview, he acknowledged having sex with her at the abandoned house.

Walker, however, claimed the sex was consensual.

[11] On June 12, 2015, the State charged Walker with rape. In a discovery response

filed the next month, the State identified potential witnesses as “those persons

who are listed on the Charging Information and any other whose name is

mentioned in any discovery materials provided herewith or hereafter”.

Appendix Vol. 2 at 30. The State also provided the defense with the charging

Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-870 | June 22, 2017 Page 4 of 9 information, the police report, a supplemental police report, hospital records,

D.C.’s recorded interview, and other materials. On September 28, 2015, the

State supplemented its discovery response with additional information,

including a certificate of analysis from the State Police Lab. The State filed its

witness and exhibit list with the trial court on November 12, 2015. Due to an

oversight, D.C.’s name was not included on the list.

[12] The jury trial commenced on December 7, 2015. Prior to the testimony of the

first witness, Walker moved to exclude D.C. from testifying because she had

not been included on the witness list. In the alternative, he requested a two-

week continuance to develop possible impeachment evidence. Following a

hearing outside the presence of the jury, the trial court denied the motion to

exclude D.C.’s testimony, as well as the continuance. The jury found Walker

guilty as charged, and he was subsequently sentenced to nine years in prison.

Walker now appeals. Additional information will be provided as needed.

Discussion & Decision

1. Denial of Continuance

[13] Walker contends that the trial court abused its discretion by denying the

requested continuance. He does not claim that the State’s omission of D.C.’s

name from the witness list was deliberate or that he was surprised by any of her

testimony. Indeed, the State’s discovery responses filed months before trial put

Walker on notice that D.C. – the alleged victim – was likely to be called as a

witness at trial. See Griffith v. State, 59 N.E.3d 947, 957 (Ind. 2016).

Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-870 | June 22, 2017 Page 5 of 9 [14] Defense counsel noted at trial that he was surprised when D.C.’s name was not

included on the witness list submitted a few weeks before trial. Counsel argued

that the omission precluded the defense from developing impeachment

evidence and preparing for a rape shield hearing. Thus, Walker requested a

fourteen-day continuance to “comply with the notice requirements of the Rape

Shield Statute regarding a potential witness named Juwan Carwell who may

have information about a false accusation of rape made by D.C. concerning

him.” Appellant’s Brief at 12.

[15] Rather than grant a continuance, the trial court held a hearing outside the

presence of the jury regarding the proposed impeachment evidence. Walker’s

mother, Latonya Davis, testified at this hearing and indicated that she had

spoken with Carwell the night before trial. Carwell informed Davis that D.C.

and her sister posted on Facebook after their break up that Carwell had

“touched [D.C.] the wrong way” and he was “going to get what [he]

deserve[d].” Transcript at 118. Davis testified that the post had since been

deleted.1 The trial court concluded that this evidence was too speculative and,

therefore, not admissible.

[16] Generally, when the State calls a witness not previously listed, the defendant

should move for a continuance to examine the witness’s testimony and prepare

1 On appeal, Walker asserts that Davis also testified that D.C. told Carwell, “I did this because I don’t want people to think I was a hoe”. Appellant’s Brief at 16. Davis, however, made clear that Carwell had not heard this directly from D.C. and it was “just his suspicion” of why she made the report against Walker. Transcript at 112.

Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-870 | June 22, 2017 Page 6 of 9 a response. Flores v. State, 485 N.E.2d 890, 894 (Ind. 1985). The granting of a

continuance in such circumstances, however, is a matter left to the trial court’s

sound discretion, reversible only for an abuse thereof. Id. “An abuse of

discretion occurs when the ruling is against the logic and effect of the facts and

circumstances before the trial court or when the record demonstrates prejudice

resulting from the denial.” Hamilton v. State, 864 N.E.2d 1104, 1109 (Ind. Ct.

App. 2007).

[17] The trial court did not abuse its discretion by denying Walker’s request for a

continuance made during trial. As noted above, Walker had ample notice that

D.C. would likely testify and plenty of opportunity to develop impeachment

evidence. Further, the trial court held a hearing to determine the admissibility

of the recently discovered evidence that D.C. may have made prior false

accusations against Carwell. This evidence was clearly weak and did not

establish that D.C. had made a “demonstrably false” prior rape accusation. See

Fugett v. State, 812 N.E.2d 846, 849 (Ind. Ct. App. 2004) (“evidence of prior

false accusations may be admitted, but only if (1) the complaining witness

admits he or she made a prior false accusation of rape; or (2) the accusation is

demonstrably false”; “accusations are demonstrably false where the victim has

admitted the falsity of the charges or they have been disproved”).

2. Battery Instruction

[18] Walker also argues that the trial court abused its discretion by denying his

request for the jury to be instructed on the lesser offense of battery. He claims

Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-870 | June 22, 2017 Page 7 of 9 there is evidence to suggest that a battery without a rape occurred. Specifically,

he argues that the jury could have believed that a battery occurred when he

grabbed D.C.’s arm and pulled her down the alley but also believe that the

subsequent sexual intercourse was consensual.

[19] “Battery is an inherently included lesser offense of rape, and the element

distinguishing the two offenses is sexual intercourse.” Angle v. State, 698 N.E.2d

356, 359 (Ind. Ct. App. 1998). Where no serious evidentiary dispute exists

regarding whether sexual intercourse occurred, however, the defendant is not

entitled to an instruction on battery as a lesser included offense of rape.2 Id.

[20] Here, as in Angle, there was no dispute that sexual intercourse occurred. The

only issue before the jury was whether the sexual intercourse was consensual.

Under the circumstances, there was no reasonable basis for the jury to find that

the lesser offense of battery occurred during the sexual intercourse but not the

greater offense of rape. Further, Walker’s reliance on uncharged misconduct

that occurred before the sexual intercourse is improper. The trial court properly

rejected the battery instruction.

[21] Judgment affirmed.

2 If there is a serious evidentiary dispute about the element(s) distinguishing the greater from the lesser offense and if, in view of this dispute, a jury could conclude that the lesser offense was committed but not the greater, then it is reversible error for a trial court not to give an instruction, when requested, on the inherently or factually included lesser offense. Id.

Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-870 | June 22, 2017 Page 8 of 9 Kirsch, J. and Mathis, J., concur.

Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-870 | June 22, 2017 Page 9 of 9