Daquan WHITENER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
No. 20A04-1205-CR-254.
Court of Appeals of Indiana.
Feb. 14, 2013.
Affirmed.
BAILEY, J., and BROWN, J., concur.
Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
BROWN, Judge.
Daquan Whitener appeals his conviction for burglary as a class A felony and the trial court‘s determination that he register as a sex offender as a condition of probation. Whitener raises two issues which we revise and restate as:
- Whether the evidence is sufficient to sustain his conviction for burglary as a class A felony; and
- Whether the court erred in ordering that he register as a sex offender as a condition of probation.
Additionally, the State raises an issue on cross-appeal, namely, whether the court properly declined to enter a judgment of conviction for rape as a class B felony
The facts most favorable to the conviction follow. On August 5, 2009, K.A.1 was at her home with her three children in Elkhart County, Indiana, and over the course of the afternoon her mother, Laura Jackson, Holly Meyers, and Raquel Pizana arrived to visit. K.A.‘s mother spent most of the afternoon inside with K.A.‘s children while the four women socialized outside in the backyard. At some point in the afternoon or evening, the women decided that they wanted to drink alcohol. Also, at one point Meyers phoned Whitener, who was seventeen years old at the time, and asked if he could return a CD which belonged to Pizana and bring it to K.A.‘s home. Whitener arrived along with his cousin Anthony Wheeler. K.A. had not previously met Whitener or Wheeler. When Whitener arrived, K.A. and Jackson were inside, and Whitener and Wheeler talked outside with Meyers and Pizana. Whitener and Wheeler left the home with Pizana without speaking to K.A.
Whitener and Wheeler later returned to K.A.‘s home and again spoke in the backyard with Meyers and Pizana and finished a bottle of gin, and Pizana called K.A. to the back door and asked if she would go with Pizana, Whitener, and Wheeler to the liquor store to purchase more alcohol. Before driving to the liquor store they stopped by another home and picked up Telvon Whitener, who was thirteen or fourteen years old and was another cousin of Whitener‘s. When they arrived at the liquor store, K.A. went inside, purchased a bottle of gin, and then returned to the car and they left. When they returned to K.A.‘s home, K.A. went inside to attempt “to get rid of [her] mom” while the others went into the backyard. Transcript at 145. Around 8 p.m., after K.A.‘s mother left, K.A. asked Pizana to drive her to Kroger to purchase liquor for herself, and again K.A., Pizana, Whitener, and Wheeler traveled together to purchase alcohol. During this time, Jackson stayed at the home to watch K.A.‘s children and Meyers was in her car talking on the phone.
While in Pizana‘s vehicle, for the most part the people in the car listened to the radio and did not speak to each other. First, the vehicle went to a gas station so Whitener could purchase “a black and mild,” and then they proceeded to Kroger. K.A. and Pizana went inside, purchased a bottle of vodka, and then drove back to K.A.‘s home. Id. at 147. K.A. did not speak with Whitener while they were in the car.
When they returned, Whitener, Telvon, and Wheeler sat at the kitchen table while K.A., Jackson, and Pizana sat in the living room on the couch.2 K.A. and Jackson began to raise the issue with Pizana that they did not “feel comfortable with [the boys] there cause [sic] [they] didn‘t know how old they were but [they] knew that they were young,” and they told Pizana that they did not want the boys to be there. Id. at 151. Eventually, the three boys left with Pizana, but before they left K.A. asked Whitener if she could use his phone because she did not have her own phone. That brief conversation was the only time K.A. spoke with Whitener that evening.
After they left, Jackson told K.A. that she should keep drinking because K.A. did
They stayed at that house for a couple of minutes and then walked to Whitener‘s house which took about five or ten minutes. While at Whitener‘s house, Whitener went upstairs and then came back downstairs and stated to Wheeler and Telvon that he was going to go back to K.A.‘s house because “he remembered that she said she wanted to have sex with him,” although Wheeler did not hear K.A. state this to Whitener. Id. at 283. After staying at Whitener‘s house for “a minute,” the three of them walked back to K.A.‘s house. Id. at 284.
As they were arriving at K.A.‘s home, Whitener explained to Telvon and Wheeler that K.A. told Whitener to enter through a living room window because “she had child safety locks on her door.” Id. at 285. Whitener lifted up the screen in the window, pulled back the window, pushed in a fan which was blocking the window and crawled through. K.A. awoke and observed her “fan going down in [her] window.” Id. at 156. Whitener then went to the back door and let Wheeler and Telvon into the home. K.A. did not react to the fan initially because she was “too drunk” and was “going in and out, blacking out,” but she observed “a couple people in [her] house” and recognized Telvon and Whitener. Id. at 157-158.
Once inside, Whitener asked Telvon to “try to talk to her” and to “[k]iss on her neck a little bit or whatever.” Id. at 250. Telvon kissed K.A. on the neck and pulled K.A.‘s pants down, but she told him to stop and he did not have sex with her. At one point Whitener moved Telvon aside and told Telvon that “you don‘t know what you‘re doing.” Id. at 258. K.A. observed Whitener, who was “real close” to her face and had his penis in his hand, and both Whitener and Telvon were telling her that it was “alright.” Id. at 159. Whitener put a condom on and had sex with K.A. During intercourse, K.A. was crying and attempting to push Whitener off of her and cried out for Jackson to help because she thought Jackson was still at her house. After Whitener finished having sex he asked Wheeler “do you want a turn man,” but Wheeler declined. Id. at 261. They then left through the back door, but before Whitener left he discarded the condom. After they left, K.A. “stumbled to the back door, pushed it all the way shut and locked it,” and then she went back into the living room and fed her baby, who had been in the living room in her car seat next to the couch during this time. K.A. started crying and eventually fell asleep. Id. at 162.
The next morning, K.A. awoke to her mother knocking on her door, and her mother asked why her window was pried open. Soon after, Jackson came over to K.A.‘s house and observed K.A. looking “kind of traumatized and ... crying and her hair was messed up and here [sic] mom was screaming,” and K.A. then started telling Jackson what had occurred. Id. at 114. K.A. called the police and Officer Bruce Anglemyer responded and took photographs of the home and transported K.A. to the hospital to have a rape kit done. K.A. noticed that her vaginal area was
On August 28, 2009, the State charged Whitener with Count I, burglary as a class A felony; and Count II, rape as a class B felony. The court held a jury trial which commenced on March 23, 2010. At trial, K.A. testified that she did not ask Whitener to return to her home that night, did not ask him to climb through the window, and did not ask him to have sex with her. K.A. testified that she did not call the police that night because she did not have a phone and did not want to go outside. Wheeler and Telvon both testified that Whitener had consensual sex with K.A. and that Telvon did not have sex with her.
Corporal James Peterson of the Elkhart Police Department testified that he collected “buckle swab standards” from Telvon and Whitener. Id. at 299. Officer Dan Milanese testified that he collected a condom and condom wrapper, located in the kitchen trash can, from K.A.‘s home, and photographic evidence of the condom was admitted into evidence. Jamie Lynn Rice, a registered nurse at Elkhart General Hospital, testified that she performed a sexual assault exam on K.A. and that K.A. told Rice that “she was very sore in her vagina ... she was swollen ... the external labia of her vagina and uhm, very red.” Id. at 349. Rice testified that K.A. had a red mark on the right side of her neck, swelling on her labia majora, a scratch to her knee, and a bruise on her back and longer scratch above the bruise. Detective Carlton Conway testified that he interviewed Whitener and Telvon and that Whitener voluntarily gave a statement in which he admitted that he had sex with K.A., that K.A. told him to climb through the window, and that although she did not say specifically that she wanted to have sex “he knew what she meant.” Id. at 395. Detective Conway also indicated that Whitener stated that he did not believe K.A. was intoxicated when they had sex, and testified that Whitener told him that he put a condom on to have sex with K.A. Lori Healey, a forensic scientist with the Indiana State Police who tested the recovered evidence, testified that DNA on the condom revealed that Whitener could not be excluded as a contributor and that Telvon and Wheeler could both be excluded. Healey also testified that a DNA swab sample from K.A.‘s neck revealed that neither Whitener nor Telvon could be excluded as contributors.
On March 25, 2010, the jury found Whitener guilty as charged. On April 19, 2010, the court held a sentencing hearing and sua sponte vacated Count II, finding that there was a reasonable possibility that the same evidentiary facts were relied upon by the jury in convicting Whitener on both Counts I and II. The court sentenced Whitener to twenty-five years with five years suspended to probation. The court also ordered that Whitener register as a sex offender.
On April 23, 2010, Whitener filed a motion to correct error stating that the court‘s order requiring him to register as a sex offender pursuant to
On April 9, 2012, Whitener filed a petition for leave to file a belated notice of appeal pursuant to Ind. Post-Conviction Rule 2(1). On April 17, 2012, the court granted his petition, and on May 16, 2012, Whitener by counsel filed a notice of appeal.
I.
The first issue is whether the evidence is sufficient to sustain Whitener‘s conviction for burglary as a class A felony. When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh‘g denied. Rather, we look to the evidence and the reasonable inferences therefrom that support the verdict. Id. We will affirm the conviction if there exists evidence of probative value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Id. The uncorroborated testimony of one witness, even if it is the victim, is sufficient to sustain a conviction. Ferrell v. State, 565 N.E.2d 1070, 1072-1073 (Ind.1991).
The offense of burglary as a class A felony is governed by
Did break and enter the building or structure of another person, to wit: the residence of [K.A.], with intent to commit a felony therein, to wit: Rape, that is to knowingly have sexual intercourse with a member of the opposite sex and the person was compelled by force or the imminent threat of force, which conduct resulted in bodily injury, to wit: an impairment to the physical condition of the said [K.A.]....
Appellant‘s Appendix at 233. Thus, to convict Whitener of burglary as a class A felony, the State needed to prove that he broke and entered K.A.‘s residence with the intent to commit rape and that K.A. suffered an impairment to her physical condition.
Whitener argues that the State failed to prove the elements of burglary because “there was inadequate evidence presented at trial to establish that [Whitener] entered [K.A.‘s] apartment with the requisite intent to force [her] to have sexual intercourse with him.” Appellant‘s Brief at 10. Whitener argues that at trial, Telvon and Wheeler both testified that Whitener indicated to them that K.A. told him to come back to her home and to enter through the front window that was open because the front door had child safety locks on the handle. Whitener argues that K.A. “could not remember much of what happened,” noting that she “could not testify for certain that [Whitener] even had sexual intercourse with her, let alone whether said act was the result of a consensual encoun-
The State argues that Whitener “lifted up the screen in the window, pulled back the window, and pushed in the fan that was blocking the window” which satisfies the breaking and entering element. Appellee‘s Brief at 15. The State argues that Whitener “expressly intended to return to [K.A.‘s] house to have sex with her.” Id. The State argues that Whitener knew that K.A. did not have a phone and notes that K.A. testified that she did not invite Whitener to return or consent to having sex. The State argues also that the method of entering a home can evidence one‘s intent to commit a violent attack and that Whitener‘s entry by the window was evidence of such. The State argues that Whitener‘s behavior while inside K.A.‘s home is further evidence of intent, noting that he encouraged Telvon to have sex with her and asked Wheeler whether he wanted to have sex with her. The State also argues that evidence supports the verdict that K.A. suffered bodily injury as a result of Whitener‘s breaking and entering including “significant swelling, bruising, redness, soreness and pain in her vaginal area” as well as “bruising on her back, bruising and scratches on her knee, scratches on her buttock and hip area, and ecchymosis, or bruising, on her neck.” Id. at 16.
To the extent that Whitener suggests that the State failed to prove intent, we observe that evidence of intent “need not be insurmountable,” Gilliam v. State, 508 N.E.2d 1270, 1271 (Ind.1987), reh‘g denied, but there must be a “specific fact that provides a solid basis to support a reasonable inference that the defendant had the specific intent to commit a felony.” Freshwater v. State, 853 N.E.2d 941, 944 (Ind.2006). The evidentiary inference pointing to the defendant‘s intent must be separate from the inference of the defendant‘s breaking and entering. Justice v. State, 530 N.E.2d 295, 297 (Ind.1988); Kondrup v. State, 250 Ind. 320, 323, 235 N.E.2d 703, 705 (1968). “The inference of intent must not derive from or be supported by the inference of breaking and entering.” Baker v. State, 968 N.E.2d 227, 230 (Ind.2012). “In other words, the evidence must support each inference — felonious intent and breaking and entering — independently, and neither inference should rely on the other for support.” Id. “This is not to say, however, that the same piece of evidence cannot support both inferences.” Id.
Here, the facts most favorable to the conviction reveal that Whitener spent most of the evening at K.A.‘s home and was aware of the fact that she had been drinking heavily, and that when they left K.A.‘s home around 1 a.m. K.A. was “really, really drunk,” and was stumbling and slurring her words. Transcript at 86. Whitener also was aware that K.A. did not have a working phone. After leaving K.A.‘s home, Whitener, Wheeler, and Telvon arrived at Whitener‘s house, and Whitener stated that he was going back to K.A.‘s home because she wanted to have sex with him. They walked to K.A.‘s, and when they arrived Whitener approached the living room window, lifted up the screen in the window, pulled back the window, pushed in a fan which was blocking the window and crawled through. Whitener found K.A., who had been sleeping, on her couch, and she was drunk and “going in and out, blacking out.” Id. at 157. He then went to the back door and let the
Whitener‘s argument is essentially a request that we reweigh the evidence or judge the credibility of witnesses, which we cannot do. Jordan, 656 N.E.2d at 817. We conclude that the State presented evidence of a probative nature from which a reasonable trier of fact could have found beyond a reasonable doubt that Whitener‘s entry of K.A.‘s home was unauthorized and that he was guilty of burglary as a class A felony.
II.
The next issue is whether the court erred in ordering that Whitener register as a sex offender as a condition of probation. Probation is a criminal sanction where the convicted offender agrees to accept conditions upon his behavior in lieu of incarceration. Gaither v. Ind. Dep‘t of Correction, 971 N.E.2d 690, 694 (Ind.Ct.App.2012). A trial court has broad discretion to impose conditions of probation, with the only limitation being that the conditions have a reasonable relationship to the treatment of the accused and the protection of the public. Id. The reviewing court is limited to considering whether the conditions imposed by the court on the accused aid in the furtherance of the goal of “assuring that the probation serves as a period of genuine rehabilitation and that the community is not harmed by a probationer being at large.” Id. We will not set aside terms of probation unless the trial court abused its discretion. Id. An abuse of discretion occurs where the decision is “clearly against the logic and effects of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), clarified on reh‘g, 875 N.E.2d 218 (Ind.2007).
Whitener begins by reciting
The State argues that the trial court was within its discretion to order that Whitener register as a sex offender as a condition of probation and that the court did not abuse its discretion in doing so. The State argues that because the order was a condition of probation and not a statutory requirement, “a violation ... would [] be punishable as a probation violation and [Whitener] would not be subject [to] prose-
In Weiss v. Ind. Parole Board, 838 N.E.2d 1048, 1049 (Ind.Ct.App.2006), trans. denied, defendant Weiss was convicted of aggravated battery, and “[s]hortly after Weiss was paroled, his parole agent recommended that he be required to adhere to the standard and special sex offender parole conditions4 in addition to the standard parole conditions” because his crime involved “raping a minor and leaving her for dead,” and “these additional requirements would protect society and encourage rehabilitation.” Weiss challenged the imposition of the sex offender parole conditions, arguing in part that the Indiana Parole Board was prohibited from imposing the sex offender conditions on a parolee not convicted of an offense listed in the statute defining sex offender, and the court dismissed his claim pursuant to Ind. Trial Rule 12(B)(6). Id. at 1050.
On appeal, this court noted that the statutes as constructed did not prohibit imposing the sex offender conditions on offenders such as Weiss and that “[a]lthough [he] was not convicted of a sex offender crime, he pled guilty to aggravated battery of a minor” and he “does not deny that the battery to the minor also involved the rape of her.” Id. at 1051-1052. We observed that
III.
The issue raised by the State on cross-appeal is whether the court properly declined to enter a judgment of conviction
Initially, we observe that the State‘s authority to appeal criminal matters is extremely limited and is statutory in nature and that “the State cannot appeal unless given that statutory authorization by the legislature.” State v. Coleman, 971 N.E.2d 209, 211 (Ind. Ct.App.2012) (citing State v. Brunner, 947 N.E.2d 411, 415 (Ind.2011), reh‘g denied). Also, “[t]he State‘s statutory right of appeal is in contravention of common law principles and is therefore strictly construed.” Id. (citing State v. Pease, 531 N.E.2d 1207, 1208 (Ind. Ct.App.1988)). Specifically,
- From an order granting a motion to dismiss an indictment or information.
- From an order or judgment for the defendant, upon his motion for discharge because of delay of his trial not caused by his act, or upon his plea of former jeopardy, presented and ruled upon prior to trial.
- From an order granting a motion to correct errors.
- Upon a question reserved by the state, if the defendant is acquitted.
- From an order granting a motion to suppress evidence, if the ultimate effect of the order is to preclude further prosecution.
- From any interlocutory order if the trial court certifies and the court on appeal or a judge thereof finds on petition that:
- the appellant will suffer substantial expense, damage, or injury if the order is erroneous and the determination thereof is withheld until after judgment;
- the order involves a substantial question of law, the early determination of which will promote a more orderly disposition of the case; or
- the remedy by appeal after judgment is otherwise inadequate.
This rule applies with equal force when the State raises an issue by way of cross-appeal. See Hardley v. State, 905 N.E.2d 399, 401 (Ind.2009) (observing that generally
We also observe that in Hardley the Court held that, in addition to the circumstances enumerated in
The Court applied this principle in another case in which the defendant petitioned the trial court to modify his conviction for operating under the influence from a class D felony to a class A misdemeanor which the court granted. Brunner, 947 N.E.2d at 414. The Court held that the State “timely appealed a judgment entered by the trial court” which the court did not possess statutory authority to do and that under those circumstances, in which the issue was “a pure question of law that does not require evidence outside the record ... the State has the limited availability to appeal a trial court‘s modification of conviction under these particular circumstances.” Id. at 415-416. We note, however, that the statement in Hardley that such an appeal need not be filed within thirty days based upon
We turn next to State v. Holtsclaw, 977 N.E.2d 348, 349 (Ind.2012), in which the Court addressed whether Ind. Appellate Rule 9 applied to the State in tolling the thirty-day deadline for filing a notice of appeal when a party files a motion to correct error. In Holtsclaw, following the trial court‘s May 23, 2011 grant of the defendant‘s motion to suppress evidence, the State on June 21, 2011 filed a motion to correct error which the court denied on July 25. Id. On August 16, 2011, the State appealed the court‘s suppression ruling, and the defendant argued that the appeal was untimely and not authorized by statute because
Here, by contrast, following the court‘s denial of the State‘s motion to correct error on May 10, 2010, the State elected not to appeal. It was two years later, after Whitener pursued a direct appeal by filing a petition to file a belated appeal pursuant to Ind. Post-Conviction Rule 2(1), that the State elected to raise this issue. We conclude that, under these circumstances, the State‘s cross-appeal issue is untimely, and accordingly we dismiss the State‘s appeal.7
Finally, to the extent that the principle in Hardley that the State may seek review of pure questions of law in which such review would not require evidence outside the record might apply to the instant case, we observe that the Indiana Supreme Court has made clear that a double jeopardy challenge is not a challenge to a defendant‘s sentence. In McCullough v. State, 900 N.E.2d 745, 746 (Ind.2009) (emphasis added). The State raised by cross-appeal a challenge to the sentence imposed by the trial court, seeking either a remand for resentencing due to the alleged inadequacy of the sentencing statement or, alternatively, requesting that the defendant‘s sentence be revised by the appellate court and a longer sentence be imposed. Id. at 750. The Court held that “the State may not by appeal or cross-appeal (a) initiate a challenge to a trial court‘s criminal sentence that is within the court‘s sentencing authority or (b) seek appellate review and revision of such sentence,” unless the “defendant requests appellate review and revision of a criminal sentence pursuant to authority derived from Article 7, Sections 4 or 6 of the Indiana Constitution,” and that in that case the State was precluded from raising the issue on appeal. Id. at 750-751. Thus, despite the fact that the defendant raised a double jeopardy claim, the Court reasoned that the defendant did not challenge his sentence.
Even if the principle expressed in Hardley were to apply to the State‘s instant challenge, its claim could not be construed as challenging Whitener‘s sentence as illegal. Thus, any such claim would be subject to Ind. Appellate Rule 9(A) and the appeal must be brought within thirty days after the entry of a final judgment.
We also note that, in Beatty this court was addressing whether the State could raise on cross-appeal the question of whether the post-conviction court abused its discretion when it allowed the defendant to file a belated notice of appeal. As the Beatty court noted, the defendant‘s argument that
Affirmed.
BAILEY, J., and VAIDIK, J., concur.
Notes
(g) As a condition of parole, the parole board:
(1) may require a parolee who is a sex offender (as defined in IC 11-8-8-4.5) to:
(A) participate in a treatment program for sex offenders approved by the parole board; and
(B) avoid contact with any person who is less than sixteen (16) years of age unless the parolee:
(i) receives the parole board‘s approval; or
(ii) successfully completes the treatment program referred to in clause (A); and
(2) shall:
(A) require a parolee who is a sex or violent offender (as defined in IC 11-8-8-5) to register with a local law enforcement authority under IC 11-8-
(B) prohibit a parolee who is a sex offender from residing within one thousand (1,000) feet of school property (as defined in IC 35-31.5-2-285) for the period of parole, unless the sex offender obtains written approval from the parole board;
(C) prohibit a parolee who is a sex offender convicted of a sex offense (as defined in IC 35-38-2-2.5) from residing within one (1) mile of the victim of the sex offender‘s sex offense unless the sex offender obtains a waiver under IC 35-38-2-2.5;....
We observe that this statute differs from the version recited in Weiss in that