Wise v. State

635 N.E.2d 221, 1994 Ind. App. LEXIS 740, 1994 WL 259462
CourtIndiana Court of Appeals
DecidedJune 15, 1994
Docket49A05-9307-CR-245
StatusPublished
Cited by6 cases

This text of 635 N.E.2d 221 (Wise v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wise v. State, 635 N.E.2d 221, 1994 Ind. App. LEXIS 740, 1994 WL 259462 (Ind. Ct. App. 1994).

Opinion

SHARPNACK, Chief Judge.

A jury found Don Eric Wise guilty of attempted rape, a class B felony, and criminal confinement, a class D felony. Wise raises two issues on appeal, which we restate as: (1) whether the evidence is sufficient to support his conviction of eriminal confinement; and (2) whether he was denied effective assistance of trial counsel. We affirm.

The facts most favorable to the judgment show that on December 12, 1991, Wise and his nine-year-old step-daughter, AA., went Christmas shopping for A.A.'s mother's gifts. After purchasing two gifts, A.A. told Wise that she wanted to go home, but Wise told her, "first we got to do something." Record, p. 152. AA. did not know where they were going. When Wise drove into the parking lot of Motor 8 Inn in Indianapolis, he ordered AA. to "get on the floorboard" of Wise's truck. Record, p. 153. Wise then checked into room 202 of the motel. Wise drove around to the back of the motel and told A.A. "come on," to which A.A. responded, "where are we going?" Wise responded to her question by demanding, "just come on." Record, p. 155. AA. picked up the gifts for her mother and followed Wise up to room 202.

Upon entering the room, A.A. took the presents out of the shopping bags in order to wrap them. Wise told A.A. to wait, "we got to do something first." Record, p. 155. As he said this he began to undress. Wise told A.A. to take off her clothes, but she refused. Wise then came around the bed to where AA. was seated on the bed and tried to undress A.A. AA. began kicking Wise, but Wise was able to get A.A.'s clothes off.

Wise, who was by this time naked, told A.A. to "relax and lay still and it won't hurt." Record, p. 158. Wise then attempted to place his penis in AA's vagina, but AA. began kicking him again. Wise touched her vagina with his penis, but was unable to penetrate. Wise then proceeded to wave his penis in A.A.'s face. A.A. continued to kick at Wise and asked him to stop.

Wise eventually went into the bathroom. While he was in there, A.A. rushed to put her clothes on and attempted to leave the motel room, but could not get the door unlocked. *223 Before she could get the door unlocked, Wise emerged from the bathroom and asked A.A. "hey, what are you doing," to which A.A. responded, "I'm going home." Record, p. 162. Wise then put on his clothes and they wrapped the presents. Before leaving the room, Wise told A.A. that if she told anyone what had happened, he would kill her entire family.

On February 20, 1992, in a statement to the police, Wise admitted that at one point while he and A.A. were in the motel room, he had his pants down and had acted as if he were going to penetrate A.A. with his penis.

On February 21, 1992, Wise was charged with one count of attempted rape and one count of criminal confinement. Wise filed a notice of an alibi defense on April 1, 1992. After a trial on February 22-24, 1998, Wise was found guilty on both counts. On March 24, 1998, Wise was sentenced to serve twenty years in prison on the attempted rape convietion and one and one-half years in prison on the criminal confinement conviction, the sentences to be served concurrently.

I

Wise argues that the evidence was insufficient to prove the elements of criminal confinement beyond a reasonable doubt. When we review the evidence supporting a conviction, we may not reweigh the evidence or rejudge the credibility of the witnesses. Washington v. State (1982), Ind., 441 N.E.2d 1355, 1358. Where the evidence is in conflict, we are bound to view only that evidence which is most favorable to the verdict and judgment of the trial court. Id. If there is substantial evidence supporting the judgment, we must affirm. Hutchinson v. State (1985), Ind., 477 N.E.2d 850, 855.

Criminal confinement is prohibited by Ind. Code § 85-42-8-8, which provides in pertinent part:

"A person who knowingly or intentionally
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(2) Removes another person, by fraud, enticement, force, or threat of force, from one (1) place to another;
commits eriminal confinement, a Class D felony...."

L.C. § 35-42-8-8. Wise was charged with removing A.A. from a vehicle to room 202 of the Motor 8 Inn by force, fraud, enticement, or threat of force. Wise contends that there was "no testimony either directly, or from which the trier of fact could infer, that [Wise] coerced, enticed, defrauded, forced or threatened [A.A.] to get her into the motel room." Appellant's brief, p. 7. We disagree.

The record reveals that there was sufficient evidence of enticement to sustain Wise's conviction. "Enticement" includes "inviting, persuading or attempting to persuade a child to enter any vehicle, building, room or secluded place with intent to commit an unlawful sexual act upon or with the person of said child." Black's Law Dictionary 531 (6th Ed.1990); see Bowen v. State (1975), 263 Ind. 558, 334 N.E.2d 691 (evidence sufficient to sustain defendant's kidnapping conviction where defendant lured * victims into his vehicle under pretext of a business opportunity, removed victims some distance, and forced them to perform fellatio upon him).

The record shows that after buying her mother's gift, A.A. was ready to go home. However, Wise told her that there was something that they had to do first. Wise then took A.A. to the Motor 8 Inn and checked into room 202. Wise testified that in October, 1987, he had taken his son and A.A. to a motel room to wrap A.A.'s mother's Christmas gift. Here, although A.A. questioned Wise as to why he wanted her to go to the room with him, A.A. carried the gifts up to the motel room. Once inside, she removed the presents from the shopping bags and prepared to wrap them when Wise attempted to rape her.

Thus, the jury could have inferred from this evidence that Wise persuaded AA. to leave the truck and enter the motel room by relying upon her past experience. We therefore find this evidence of enticement sufficient to sustain Wise's criminal confinement conviction.

II.

Wise argues next that he was denied effective assistance of trial counsel. Specifi *224 cally, he contends that trial counsel's performance was so deficient that he was denied a fair trial when trial counsel opened the door to otherwise inadmissible evidence of Wise's prior misconduct.

Reversal for ineffective assistance of counsel is appropriate when the defendant has shown that the deficient performance by counsel and the resulting prejudice was so serious that he was deprived of a trial the result of which is reliable. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; Miller v. State (1989), Ind., 541 N.E.2d 260, 262.

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635 N.E.2d 221, 1994 Ind. App. LEXIS 740, 1994 WL 259462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wise-v-state-indctapp-1994.