Jordan Collins v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 9, 2020
• Docket: 19A-CR-1563
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 09 2020, 8:25 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE James H. Voyles, Jr. F. Aaron Negangard Tyler D. Helmond Chief Deputy Attorney General Voyles Vaiana Lukemeyer Baldwin & J.T. Whitehead Webb Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jordan Collins, April 9, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1563 v. Appeal from the Hancock Circuit Court State of Indiana, The Honorable Cody B. Coombs, Appellee-Plaintiff, Court Commissioner Trial Court Cause No. 30C01-1801-F5-36

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1563 | April 9, 2020 Page 1 of 12 Case Summary and Issues [1] Following a bench trial, Jordan Collins was found guilty of two counts of

sexual misconduct with a minor, one each as a Level 5 and a Level 6 felony;

and rape, a Level 3 felony. The trial court entered judgments of conviction for

Level 6 felony sexual misconduct and rape and sentenced Collins to an

aggregate sentence of eight years. Collins appeals and presents two issues for

our review: (1) whether Collins personally, knowingly, intelligently, and

voluntarily waived his right to a jury trial; and (2) whether there was sufficient

evidence to support his rape conviction. Concluding Collins’ waiver of a jury

trial was personal, knowing, intelligent, and voluntary, and the State presented

sufficient evidence to support Collins’ rape conviction, we affirm.

Facts and Procedural History [2] The facts most favorable to the trial court’s judgment are as follows. H.D.’s

parents are separated, and she has an older brother named Landon, who is in

the Army. H.D. lives primarily with her father, Shane, in Lawrence, Indiana,

and her mother, Cindy, lives in Fortville. In December 2017, Landon came

home for several weeks to visit over the holidays.

[3] On December 31, Landon hosted a New Year’s Eve party at their mother’s

house. H.D. had turned fourteen years old only three weeks prior. That

evening, around 5:00 or 6:00 p.m., H.D.’s father dropped her off at her

mother’s house for the party. Shortly thereafter, two of H.D.’s girlfriends from

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1563 | April 9, 2020 Page 2 of 12 school arrived and the three of them got ready for the party. Around 7:30-8:00

p.m., Landon and Collins arrived. Landon and Collins had been friends for

approximately ten years; H.D. had known Collins that long as well. Other

friends arrived later, and Cindy and her boyfriend were also present during the

party. There were roughly fifteen guests and “[p]eople started drinking and

they were just hanging out[.]” Transcript of Evidence, Volume II at 23.

[4] During the party, H.D. “had a sip of champagne, . . . a few sips of beer, and

two or three shots of tequila.” Id. at 39. She also witnessed Collins consume

alcohol, including beer, Captain Morgan, champagne, and “something in a shot

glass.” Id. Everyone gathered in the living room to watch the ball drop at

midnight. After the ball dropped, most guests left but H.D. and her two

girlfriends hung out in her room for a while. Around 12:30 a.m., January 1,

Landon went to bed and Cindy and her boyfriend left to go to a nearby bar.

H.D., her two friends, a male friend, and Collins hung out in the kitchen and

talked. While they were in the kitchen, Collins told H.D. “that [she] was like a

sister to him and that he cared about [her] and . . . [told their male friend] that if

he did anything to any of [the] girls that he would beat the crap out of him.” Id.

at 42.

[5] At some point, Collins texted H.D. his phone number and told her if she ever

needed to talk to him while Landon is away, she could. Then, H.D. recalled

Collins announcing to everyone in the kitchen, “me and [H.D.] are going to go

outside to talk, don’t come out there until I say you can come in.” Id. at 45.

Collins told H.D. he wanted to speak with her about Landon leaving, so they

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1563 | April 9, 2020 Page 3 of 12 walked into the garage. Upon entering the garage, Collins kissed H.D., then sat

in a chair, and told her to “straddle him[.]” Id. at 46. H.D. said no. She sat on

Collins’ lap “for a second[,]” then stood in front of him, and he tried to pull her

pants down but she resisted. Id. at 47.

[6] H.D. recalled that “eventually [Collins] stood up and somehow we ended up

over by the fridge and I was like pushed up against it and [Collins] kept telling

me that I needed to suck his d*** and I said no. And then [Collins] kept pulling

my pants down and I was holding them up.” Id. at 46. Collins managed to pull

H.D.’s pants down a few inches, then put his hands down her pants, and

inserted several fingers inside her vagina for ten to fifteen seconds. H.D. told

Collins, “[S]top[,] it hurts[,]” but Collins did not respond and did not stop. Id.

at 49. At some point after H.D. refused him, Collins grabbed her hair and

pulled her head back, and while pinning her against the refrigerator, Collins

grabbed her hand and placed it on his exposed erect penis. Collins touched

H.D. with his penis and unsuccessfully attempted to penetrate her. Collins told

H.D., “I’m going to d*** you down now or I’m going to do it later.” Id. at 52.

During the encounter, H.D. repeatedly told Collins to stop and said “no.”

H.D. did not attempt to flee because she was afraid Collins would harm her or

hurt someone else if she disclosed the incident to anyone in the house.

[7] Hearing Cindy returning from the bar, Collins stopped and sat down in a chair.

H.D. returned to her room where her friends were and told them she thought

Collins had just raped her. At some point, Collins left the house. Later that

day, H.D. disclosed the incident to Landon via Snapchat but stated she did not

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1563 | April 9, 2020 Page 4 of 12 want the police involved. On January 2, Officer Matt Fox of the Fortville

Police Department received a report from the Department of Child Services

child abuse hotline indicating that H.D. had been sexually assaulted. Officer

Fox reached out to H.D.’s father, who brought H.D. to the police station to be

interviewed. After speaking with the police, H.D. then went to St. Vincent’s

hospital in Anderson and underwent a sexual assault examination.

[8] On January 4, 2018, the State charged Collins with the following: Count I,

sexual misconduct with a minor, a Level 5 felony; Count II, sexual misconduct

with a minor, a Level 6 felony; and Count III, criminal confinement, a Level 6

felony. Later, the State filed a motion to amend the information by adding

Count IV, rape, a Level 3 felony. The trial court granted the motion, and

Count IV was added.

[9] On February 15, 2019, Collins filed a Waiver of Jury Trial, which he personally

signed, along with his attorney. The short waiver stated, “Comes now

defendant in person and by counsel and hereby waives trial by jury and requests

this matter be scheduled for bench trial[.]” Appendix to Appellant’s Brief,

Volume Two at 62. A bench trial was held on June 5, 2019, and the trial court

found Collins guilty of both counts of sexual misconduct with a minor and

rape, and not guilty of criminal confinement. The trial court merged Counts I

and II and sentenced Collins to serve two years in the Indiana Department of

Correction (“DOC”) on Count II, concurrent with eight years on Count IV–

four of which were to be executed in the DOC, two years with community

corrections, and two years suspended to probation. Collins now appeals.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1563 | April 9, 2020 Page 5 of 12 Discussion and Decision I. Waiver of Jury Trial [10] “The jury trial right is a bedrock of our criminal justice system, guaranteed by

both Article 1, Section 13 of the Indiana Constitution and the Sixth

Amendment to the United States Constitution.” Horton v. State, 51 N.E.3d

1154, 1158 (Ind. 2016). It is fundamental and personal and therefore any

waiver of the right to a jury trial must be the knowing and voluntary choice of

the defendant himself. Perkins v. State, 541 N.E.2d 927, 928 (Ind. 1989); see also

Ind. Code § 35-37-1-2 (stating that “the defendant and prosecuting attorney, with

the assent of the court, may submit the trial to the court”) (emphasis added).

“A voluntary waiver occurs if the conduct constituting the waiver is the product

of a free will; a knowing waiver is the product of an informed will; [and] an

intelligent waiver is the product of a will that has the capacity to understand[.]”

Johnson v. State, 6 N.E.3d 491, 496 (Ind. Ct. App. 2014) (internal quotation

omitted).

[11] A knowing, voluntary, and intelligent waiver of the right to a jury trial cannot

be inferred from a record which does not evidence such personal choice. Boykin

v. Alabama, 395 U.S. 238, 243 (1969); Poore v. State, 681 N.E.2d 204, 206 (Ind.

1997). Rather, the defendant must personally indicate either in writing or

verbally in open court that he or she wishes to waive a jury trial and the waiver

must be made part of the record. Kellems v. State, 849 N.E.2d 1110, 1112-13

(Ind. 2006) (reh’g opinion). There is no requirement that a trial court orally

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1563 | April 9, 2020 Page 6 of 12 advise a defendant of his right to a jury trial and the consequences of waiving

that right. Coleman v. State, 694 N.E.2d 269, 278 (Ind. 1998).

[12] Collins argues that the waiver of jury trial filed with the trial court does not

establish that he personally communicated a knowing, intelligent, and

voluntary waiver because the actual waiver fails to indicate that he can read or

write and that he understands what a jury trial is and its function. We disagree.

[13] In Poore v. State, our supreme court held that the defendant in that case made a

personal, knowing, intelligent, and voluntary waiver of a jury trial in

circumstances similar to those in the instant case. 681 N.E.2d at 208. In Poore,

after the defendant had been criminally charged, he was given an initial hearing

rights form explaining the right to a jury trial, which he signed and dated.

Later, at a pre-trial hearing, the defendant filed a written waiver of jury trial,

signed by him, his attorney, and the deputy prosecuting attorney. Our supreme

court concluded that the defendant’s “filing of his signed jury trial waiver

adequately reflect[ed] a personal desire to waive this right and constitute[d] the

affirmative act necessary to do so for his felony charge.” Id. at 207.

[14] The court further held that the evidence in the record established that the

defendant made an intelligent and voluntary waiver. First, the defendant had

been given an initial hearing rights form, which “inform[ed] him generally and

unambiguously” of his right to jury trial. Id. Second, the “record provide[d]

multiple grounds for inferring that [he] understood the proceedings and the

choices he made.” Id. (emphasis added). The presentence investigation report

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1563 | April 9, 2020 Page 7 of 12 indicated that the defendant completed school through eleventh grade, later

obtained his G.E.D., and attended two years of undergraduate education; the

record of the initial hearing reflected a “literate exchange” between the

defendant and the court regarding a no contact order; and the defendant’s

significant criminal history suggested a “high level of familiarity with the

judicial process, making it quite likely that he knew what a ‘jury’ was.” Id. In

addition, the record revealed that the defendant’s attorney also signed the

waiver, “impl[ying] that [he] acted upon advice and information of legal

counsel.” Id. Lastly, our supreme court rejected the notion that the record

must show that a defendant could read and understand his or her rights:

“While it is advantageous for a trial judge to engage a defendant in colloquy

concerning the consequences of waiving trial by jury, such an exchange is ‘not

required by either the United States or the Indiana constitutions, or by statute.’”

Id. at 208 (quotation omitted). Therefore, the court held the defendant made a

personal, knowing, voluntary, and intelligent waiver.

[15] Such is the case here. Collins personally signed his waiver of jury trial, and this

is sufficient to establish that his waiver was personal. The record also supports

a knowing, voluntary, and intelligent waiver. First, Collins appeared in person

and with counsel at the initial hearing on January 4, 2018. See App. to

Appellant’s Br., Vol. Two at 3. The trial court’s Summary of Order for Initial

Hearing indicated that during the hearing, the trial court advised him that he

has (among other things) “the right to a speedy, public trial, by jury in the

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1563 | April 9, 2020 Page 8 of 12 county in which the offense was allegedly committed.” Id. at 28. The trial

court also initially scheduled a jury trial for July 26, 2018. Id.

[16] The record also provides several grounds for inferring Collins knowingly,

voluntarily, and intelligently waived his right to a jury trial. Notably, Collins’

written waiver was filed far into the case, on February 15, 2019, over a year

after the State initially filed the charges. And in addition to the initial hearing,

the record demonstrates that over this period of time, the trial court had several

opportunities to communicate with Collins in person to know whether he could

read, write, and understand English. See id. at 5, 7 (chronological case

summary indicating Collins appeared in person and by counsel for a final pre-

trial conference on May 10, 2018, as well as a change of plea hearing on July

12, 2018). Although Collins does not have a criminal history, his presentence

investigation report reveals he has a high school education. Id. at 75-77.

Critically, Collins’ attorney also signed his waiver, implying that he acted upon

the advice of his counsel. As the Poore court explained, “a defendant’s

understanding [of waiver of a jury trial] may be inferred when he and his

attorney both sign a written waiver of the jury trial right and file it in open

court. The evidence tends to show that [the defendant] could read and that he

thus had the ability to understand the short waiver form he signed.” 681

N.E.2d at 207.

[17] Based on the evidence in the record, we conclude that Collins personally and

knowingly, voluntarily, and intelligently waived his right to a jury trial.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1563 | April 9, 2020 Page 9 of 12 II. Sufficiency of the Evidence: Rape [18] Our standard of reviewing a sufficiency claim is well-settled. Brent v. State, 957

N.E.2d 648, 649 (Ind. Ct. App. 2011), trans. denied. We do not reweigh the

evidence or assess the credibility of the witnesses. Bailey v. State, 907 N.E.2d

1003, 1005 (Ind. 2009). Instead, we consider only the evidence most favorable

to the judgment and the reasonable inferences supporting it. Id. Therefore, the

evidence need not overcome every reasonable hypothesis of innocence. Drane

v. State, 867 N.E.2d 144, 147 (Ind. 2007). “[W]e will affirm the conviction

unless no reasonable trier of fact could have found the elements of the crime

beyond a reasonable doubt.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011).

[19] To convict Collins of rape, the State had to prove beyond a reasonable doubt

that Collins knowingly or intentionally caused H.D. to submit to other sexual

conduct1 when H.D. was compelled by force or imminent threat of force. Ind.

Code § 35-42-4-1(a)(1); Ind. Code § 35-41-4-1(a) (“A person may be convicted

of an offense only if his guilt is proved beyond a reasonable doubt.”). The force

necessary to sustain a rape conviction need not be physical; it may be

constructive or implied from the circumstances. Jones v. State, 589 N.E.2d 241,

242-43 (Ind. 1992).

1 Indiana Code section 35-31.5-2-221.5 defines “other sexual conduct” as an act involving “a sex organ of one (1) person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object.”

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1563 | April 9, 2020 Page 10 of 12 [20] Collins argues that our appellate courts have considered the compulsion by

force element many times and “in almost every case the force was significantly

greater than what [was] involved” in this case. Appellant’s Brief at 11. He

argues that the State failed to prove this element because Collins did not use a

weapon during the offense, there were “no detectable injuries found during

[H.D.’s] sexual assault examination, or any evidence . . . of male DNA[,] H.D.

did not object to kissing[, s]he never made any attempt to leave the garage, and

Collins never told her she couldn’t leave the garage.” Id. at 12 (record citations

omitted). We disagree.

[21] At trial, H.D. testified that when she and Collins walked into the garage, he

kissed her, tried to take her pants off, and then pinned her against the

refrigerator and at some point, instructed her to “suck his d***[.]” Tr., Vol. II

at 46. Collins tried to pull her pants down as H.D. tried to hold them up.

Despite H.D.’s refusal, Collins put his hands down her pants and inserted

several fingers into her vagina. H.D. told Collins that it hurt and to stop.

Collins grabbed H.D.’s hair and pulled her head back, grabbed her hand, and

placed it on his erect penis. He then touched her with his penis and attempted

to penetrate her. During the encounter, H.D. repeatedly told Collins “no” and

asked him to stop. In addition, documentation from H.D.’s sexual assault

examination was admitted into evidence and indicated the following

information provided by H.D.: “[Collins] kept pulling my hair – he tried to

choke me – he put his hand on my throat for a second[;] I had a hard time

breathing[.]” Exhibits, Volume IV at 33.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1563 | April 9, 2020 Page 11 of 12 [22] In sum, although Collins did not use a weapon, he physically pinned H.D. to

the refrigerator, pulled her pants down as she tried to keep them up, grabbed

her by the hair, penetrated her, and choked her – all while H.D. repeatedly said

no and asked him to stop. This is sufficient evidence establishing Collins’ use of

physical force to compel H.D. to submit to sexual conduct.

Conclusion [23] We conclude that Collins personally, knowingly, voluntarily, and intelligently

waived his right to a jury trial and there is sufficient evidence to support his rape

conviction. Accordingly, we affirm.

[24] Affirmed.

Bradford, C.J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1563 | April 9, 2020 Page 12 of 12