Latroy Maxwell v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 25, 2016
• Docket: 79A02-1601-CR-154
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 25 2016, 8:43 am

regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David T. A. Mattingly Gregory F. Zoeller Mattingly Legal, LLC Attorney General of Indiana Lafayette, Indiana Paula J. Beller Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Latroy Maxwell, August 25, 2016 Appellant-Defendant, Court of Appeals Case No. 79A02-1601-CR-154 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Thomas H. Busch, Appellee-Plaintiff Judge Trial Court Cause No. 79C01-1505-F1-2

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 79A02-1601-CR-154 | August 25, 2016 Page 1 of 8 Case Summary [1] Latroy Maxwell (“Maxwell”) appeals his conviction and sentence for Rape, as

a Level 1 felony.1 We affirm.

Issues [2] Maxwell presents two issues for review:

I. Whether the State presented sufficient evidence of serious bodily injury to elevate the offense to a Level 1 felony; and

II. Whether his thirty-year advisory sentence is inappropriate.

Facts and Procedural History 2

[3] In April of 2015, N.G. lived in Lafayette with her four children. She had

obtained a no-contact order against Maxwell, who was the father of one of the

children.

1 Ind. Code § 35-42-4-1. He does not challenge his two convictions or concurrent sentences for Invasion of Privacy, a Class A misdemeanor. I.C. § 35-46-1-15.1. 2 We remind Maxwell’s counsel that the Statement of Facts in an appellate brief “shall be stated in accordance with the standard of review appropriate to the judgment or order being appealed.” Indiana Appellate Rule 46(A)(6)(b). The Statement of Facts section of the Appellant’s brief is permeated with an appalling lack of sensitivity. For example, the first paragraph opens with the language: “This is a consent Rape case.” Appellant’s Brief at 8. The trial is described as a “he-said, she-said” matter. Appellant’s Brief at 8. In argument, despite a lack of evidence of the duration of N.G.’s unconsciousness, counsel insists that the period was brief and N.G.’s injuries superficial. According to counsel, “a brief period of unconsciousness coupled with other merely superficial injuries” do not “make the grade” for serious bodily injury. Appellant’s Brief at 18-19. Counsel also repeatedly suggests that the evidence of N.G.’s injuries is unworthy of credit, as “self-reporting.” Appellant’s Brief at 11-12.

Court of Appeals of Indiana | Memorandum Decision 79A02-1601-CR-154 | August 25, 2016 Page 2 of 8 [4] On April 23, 2015, at around 10:00 p.m., N.G. answered a knock at her door to

find Maxwell standing there holding a case of beer. He handed N.G. the beer

and stated that he would be back, then took off down the street.

[5] Within minutes, Maxwell returned. N.G. again opened the door, but did not

invite Maxwell inside. Maxwell insisted that he wanted to give his child a hug

and kiss, and he walked past N.G. into the house. After trying to awaken his

child and interact with her, Maxwell began to express displeasure that the child

was not very responsive. He accused N.G. of doing something to cause the

child to react negatively to him.

[6] N.G. told Maxwell that he could leave, but Maxwell continued to engage N.G.

in conversation. He was alternately speaking in normal tones and in loud,

angry tones. At one point, Maxwell “flipped his hand” across N.G.’s lip and

expressed his desire to engage in sexual relations. (Tr. at 67.) When N.G.

rebuffed Maxwell’s request for “moo shoo,” he motioned that she should

perform oral sex. (Tr. at 67.) N.G. repeatedly told Maxwell no and requested

that he leave. Instead, Maxwell tried to interrogate N.G. about whom she was

trying to be faithful to. He stated that he was “tired of [N.G.] treating him like

one of those other punk ass n-----s on the street” and began to push her into the

bedroom. (Tr. at 69.)

[7] Maxwell and N.G. struggled on the bed. N.G. attempted to get up, but

Maxwell repeatedly pushed her down. He was attempting to remove N.G.’s

pants and she was “holding onto them so he couldn’t pull them down.” (Tr. at

Court of Appeals of Indiana | Memorandum Decision 79A02-1601-CR-154 | August 25, 2016 Page 3 of 8 74.) N.G. dug her nails into Maxwell’s neck and bit him on his chest. Maxwell

then put his arm around N.G. and choked her into unconsciousness. When

N.G. came to, she was aware that her pants were off.

[8] Maxwell used one arm to pin N.G. down and the other arm to pry her knees

apart. Maxwell raped N.G. and asked if she “was going to call the police on

him.” (Tr. at 81.) After N.G. assured Maxwell that she would not call the

police, he left.

[9] N.G. called the police and was escorted to the hospital. Maxwell was arrested

and charged with Rape, Criminal Confinement, Strangulation, Battery, and

Invasion of Privacy. At the conclusion of a jury trial on November 17, 2015,

Maxwell was convicted as charged. Because of Double Jeopardy concerns, the

trial court entered judgments of conviction on only the Rape and Invasion of

Privacy verdicts. Maxwell was sentenced to an aggregate term of imprisonment

of thirty years. He now appeals.

Discussion and Decision Sufficiency of the Evidence of Serious Bodily Injury [10] When reviewing the sufficiency of the evidence to support a conviction,

appellate courts must consider only the probative evidence and the reasonable

inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.

2007). In so doing, we do not assess witness credibility or reweigh the

Court of Appeals of Indiana | Memorandum Decision 79A02-1601-CR-154 | August 25, 2016 Page 4 of 8 evidence. Id. We will affirm the conviction unless no reasonable fact-finder

could find the elements of the crime proven beyond a reasonable doubt. Id.

[11] In order to convict Maxwell of Rape, a Level 1 felony, as charged, the State was

required to show that Maxwell knowingly or intentionally had sexual

intercourse with N.G. when N.G. was compelled by force or imminent threat

of force, and that the offense resulted in serious bodily injury to N.G. I.C. § 35-

42-4-1(b)(3); Confidential App. at 207.

[12] Maxwell challenges only the sufficiency of the evidence to elevate the offense to

a Level 1 felony, that is, serious bodily injury. “Serious bodily injury” is bodily

injury that creates a substantial risk of death or that causes serious permanent

disfigurement, unconsciousness, extreme pain, permanent or protracted loss or

impairment of the function of a bodily member or organ, or loss of a fetus. I.C.

§ 35-31.5-2-292.

[13] The State presented evidence that Maxwell rendered N.G. unconscious by

strangulation. N.G. testified that Maxwell used his arm to choke her, she began

to get dizzy, and her ears were ringing; she then “blacked out.” (Tr. at 78.)

N.G. further testified that when she regained consciousness, she began crying

and accused Maxwell of trying to kill her. Her pants had been removed. Nurse

Cathy Clark testified that N.G. appeared to have symptoms consistent with loss

of consciousness, specifically, memory loss, confusion, and ear pain.

[14] According to Maxwell, the evidence is insufficient to support the elevation of

his offense because the evidence of unconsciousness is derived from N.G.’s

Court of Appeals of Indiana | Memorandum Decision 79A02-1601-CR-154 | August 25, 2016 Page 5 of 8 “self-reporting at the hospital” as opposed to medical tests, and the State did

not establish that the episode of unconsciousness was prolonged. Appellant’s

Brief at 13. Maxwell argues: “if N.G. was unconscious, it was only briefly, and

such scant evidence should not provide the basis to support a finding of serious

bodily injury.” Appellant’s Brief at 13. Maxwell’s argument is a blatant request

that we reweigh evidence and find N.G. to be lacking in credibility. We will

not do so.

[15] Because the statute defining serious bodily injury is written in the disjunctive,

the State need only prove one type of injury to establish serious bodily injury.

Davis v. State, 819 N.E.2d 91, 100 (Ind. Ct. App. 2004). When the victim was

rendered unconscious by a blow to the mouth, “[t]his alone was sufficient to

establish serious bodily injury.” Id. at 100-101. See also State v. Greene, 16

N.E.3d 416, 420-23 (Ind. 2014) (observing that “serious bodily injury” includes

bodily injury causing unconsciousness and recognizing, in the context of post-

conviction proceedings, that “the State presented more than sufficient evidence

for the jury to infer that Greene’s act of force, i.e. his strangulation of Johnson

… resulted in serious bodily injury to her”). The State presented sufficient

evidence to establish that Maxwell committed Rape, as a Level 1 felony.

Appropriateness of Sentence [16] Pursuant to Indiana Code Section 35-50-2-4, a person convicted of a Level 1

felony shall receive a term of imprisonment of between twenty years and forty

Court of Appeals of Indiana | Memorandum Decision 79A02-1601-CR-154 | August 25, 2016 Page 6 of 8 years, with thirty years being the advisory sentence. Maxell was given the

advisory sentence.

[17] Under Indiana Appellate Rule 7(B), this “Court may revise a sentence

authorized by statute if, after due consideration of the trial court’s decision, the

Court finds that the sentence is inappropriate in light of the nature of the offense

and the character of the offender.” In performing our review, we assess “the

culpability of the defendant, the severity of the crime, the damage done to

others, and myriad other factors that come to light in a given case.” Cardwell v.

State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such review is

to attempt to leaven the outliers. Id. at 1225. A defendant ‘“must persuade the

appellate court that his or her sentence has met th[e] inappropriateness standard

of review.”’ Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007) (quoting

Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).

[18] As for the nature of the offense, Maxwell violated a no-contact order in place

for the protection of N.G. and their child, and refused to leave the house when

repeatedly asked to do so. Maxwell then attacked, strangled, and raped his

former girlfriend while her four minor children were present in the house.

[19] As to the character of the offender, Maxwell has prior felony convictions in

Illinois and Indiana, specifically, for Possession of a Controlled Substance,

Attempted Robbery, and Robbery. He has misdemeanor convictions for Retail

Theft, Battery, Driving While Intoxicated, and Leaving the Scene of an

Accident. He was on probation at the time he committed the present offense.

Court of Appeals of Indiana | Memorandum Decision 79A02-1601-CR-154 | August 25, 2016 Page 7 of 8 [20] Having reviewed the matter, we conclude that the trial court did not impose an

inappropriate sentence under Appellate Rule 7(B), and the sentence does not

warrant appellate revision. Accordingly, we decline to disturb the sentence

imposed by the trial court.

Conclusion [21] Sufficient evidence supports the elevation of Maxell’s crime of rape to a Level 1

felony. Maxwell has not demonstrated that his advisory sentence is

inappropriate.

[22] Affirmed.

Riley, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 79A02-1601-CR-154 | August 25, 2016 Page 8 of 8