ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Robert W. Hammerle Steve Carter
Joseph M. Cleary Attorney General of Indiana
Timothy W. Beam
Deputy Attorney General
SUPREME COURT OF INDIANA
BRIAN RINGHAM, )
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 49S02-0112-CR-642
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 49A02-0009-CR-577
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Alex Murphy, Judge Pro Tempore
Cause No. 49G01-9907-CF-122609
ON PETITION FOR TRANSFER
May 29, 2002
Brian Ringham was convicted of rape as a Class A felony. The
Court of Appeals reversed his conviction and remanded the cause for a new
trial because (1) the Master Commissioner improperly presided over Ringhams trial, and (2)
the trial court committed fundamental error when it failed to instruct the jury
that the State had the burden of disproving Ringhams mistake of fact defense.
We affirm the judgment of the trial court.
Factual and Procedural Background
Ringham was introduced to the victim, C.C., at a private party at a
nightclub in downtown Indianapolis. Ringham worked at the club, but was off
duty that evening. After C.C. and Ringham talked and danced for about
an hour, Ringham offered a tour of the closed areas of the club
and C.C. agreed. Ringham spoke with an on-duty employee, then led C.C.
up the stairway. After exploring the second floor where a new bar
was being constructed, Ringham and C.C. continued to the fourth floor, where a
variety of construction materials and discarded building fixtures were stored.
Ringham kissed C.C., who initially did not object to his advances, but resisted
when Ringham raised her skirt. After forcibly restraining C.C. despite her repeated
requests to return to the first floor, ultimately Ringham raped C.C., at one
point placing his arm over the top of her head and threatening to
break her neck if she was not quiet. When Ringham finally released
C.C., she left the club by a back door, ran to her car
and immediately drove to a hospital where she reported the rape.
Indianapolis Police Detective Lawrence Cahill was dispatched to the hospital and interviewed C.C.
there. Later the next day, Cahill went to the nightclub and interviewed
Ringham. Ringham voluntarily gave a statement, claiming that he and a woman
whose name he could not remember had engaged in consensual intercourse at the
club the night before. Ringham was subsequently charged with one count of
rape as a Class A felony.
On April 17, 2000, Judge Tanya Walton Pratt handled some preliminary matters prior
to the commencement of Ringhams trial. A brief recess was ordered, and
when the court reconvened Judge Pratt was occupied by administrative duties related to
an upcoming death penalty trial. Judge Pratt executed an Appointment of Attorney
as Judge Pro Tempore form to permit Master Commissioner Alex Murphy to preside
over the trial. The papers appointing Judge Murphy were placed in the
Marion County Clerks order book, but were not included in Ringhams court file.
The entry in the Chronological Case Summary (CCS) for April 17 described
the JUDGE as 44214 PRATT TANYA W and the entry for April 18
described the JUDGE as 49420 MURPHY ALEX TYPE: Pro Tem.
A preliminary hearing was convened on April 17, and Judge Murphy took the
bench, stating that the commissioner was empowered to continue the proceedings. Ringham
objected, stating that earlier rulings in the case by Judge Murphy as Master
Commissioner led him to conclude that Judge Murphy was biased against him.
Ringham asked that the regular sitting judge be the individual to hear the
case. Judge Murphy overruled Ringhams objection and presided over the remainder of
the preliminary hearing and the trial.
At the conclusion of the trial, Ringham tendered a mistake of fact jury
instruction. Without objection from Ringham, the trial court modified the instruction to
mirror Indiana Code section 35-41-3-7, and instructed the jury that [i]t is a
defense that the person who engaged in the prohibited conduct was reasonably mistaken
about a matter of fact if the mistake negates the culpability required for
the commission of the offense. The trial court separately instructed the jury
on the elements of the crime, that the State was required to prove
the elements of the crime, including intent, beyond a reasonable doubt, and that
if the State failed to do so the jury should find Ringham not
guilty. The court also instructed the jury that Ringham was not required
to present any evidence to prove his innocence or to prove or explain
anything. The jury found Ringham guilty, and at a subsequent hearing Judge
Murphy sentenced Ringham to the presumptive sentence of thirty years, with ten years
suspended and probation for five years.
Ringham appealed, contending that Judge Murphy (1) improperly presided over the trial, (2)
erred in admitting C.C.s prior consistent statement, and (3) committed fundamental error by
failing to instruct the jury that the State had the burden of disproving
Ringhams mistake of fact defense. In support of his argument that Judge
Murphy improperly presided over the trial, Ringham filed the record of proceedings (now
known as the Record on Appeal) from the trial court, which did not
contain the papers appointing Judge Murphy. The State requested and received permission
to file a supplemental record containing the appointment papers. Ringham asked the
Court of Appeals to reconsider the grant of the States request, and because
of the confusion over Judge Murphys appointment, the Court of Appeals remanded to
the trial court to make findings on the propriety of the appointment.
Judge Pratt presided over an evidentiary hearing and concluded that Judge Murphy had
been validly appointed as a judge pro tempore. Ringham renewed his appeal
and the Court of Appeals reversed his conviction, holding that Judge Murphy had
improperly presided over the trial.
Ringham v. State, 753 N.E.2d 29, 34
(Ind. Ct. App. 2001). The court held that because Judge Murphy stated
he was sitting as commissionerrather than as judge pro temporeand because the papers
appointing him were not notarized, file stamped and recorded in the trial courts
CCS for April 17, on that date Judge Murphy was presiding not as
a properly appointed judge pro tempore, but in the capacity of Master Commissioner.
Id. Accordingly, when Ringham objected, Judge Murphy was required by Indiana
Code sections 33-5.1-2-11(e) and 27(d) to transfer the proceedings back to Judge Pratt.
Id. at 34-35. The Court of Appeals also held that the
trial court committed fundamental error when it failed to instruct the jury that
the State had the burden of disproving Ringhams mistake of fact defense.
Id. at 38. This Court granted transfer.
I. Appointment of the Judge Pro Tempore
The State argues that the Court of Appeals erroneously overruled Judge Pratts finding
that Judge Murphy was validly appointed judge pro tempore, and that in any
case Ringham waived the issue because he objected to Judge Murphy on the
basis of bias, not because of any flaw in Murphys appointment. We
do not agree that the issued was waived. The State is correct
that failure to object at trial to a judge pro tempores authority to
preside over the proceedings generally waives the issue for appellate review. Coleman
v. State, 694 N.E.2d 269, 277 (Ind. 1998); Floyd v. State, 650 N.E.2d
28, 32 (Ind. 1994). It is also true that a litigant may
not raise one ground for objection at trial and a different ground for
objection on appeal. Lehman v. State, 730 N.E.2d 701, 703 (Ind. 2000).
However, in this case Judge Murphy stated that he was acting as
a commissioner, rather than judge pro tempore, and at the time of his
objection Ringham had no means of knowing that Judge Murphy was sitting as
judge pro tempore. An issue cannot be waived before it is presented
on the record. See Smith v. Convenience Store Distrib. Co., 583 N.E.2d
735, 739 (Ind. 1992) (error arising from trial judges ex parte communication with
jury not waived by plaintiffs failure to object prior to verdict where record
did not show that plaintiff had knowledge of communication prior to verdict).
Indiana Code section 33-5.1-2-27(d) provides: A party to a superior court proceeding that
has been assigned to a magistrate . . . may request that an
elected judge . . . preside over the proceeding instead of the magistrate
. . . . Upon a request made . . . by either
party, the magistrate . . . shall transfer the proceeding back to the
superior court judge. Ringham contends that, if Judge Murphy was sitting as
a commissioner, this section required him to transfer the proceedings back to Judge
Pratt when Ringham objected to his presiding. We need not resolve this
claim because we do not agree that Judge Murphy was sitting as a
commissioner. In the hearing on remand Judge Pratt entered findings of fact,
including a finding that Appointment of Attorney as Judge Pro Tempore papers were
executed and placed, [a]s done in the regular course of business, in the
Marion County Clerks order book. The court concluded as a matter of
law that although the deputy clerk failed to include these papers in Ringhams
record of proceedings, file stamp them, and record them in the trial courts
CCS on April 17, the papers were nevertheless properly executed and were intended
to be in defendants record of proceedings, and that accordingly Judge Murphy was
validly appointed. The trial court transmitted its findings of fact and conclusion
of law, along with the appointment papers, to the Court of Appeals, which
added them to the Record on Appeal.
The Court of Appeals concluded that because Judge Murphy stated he was sitting
as commissioner rather than as judge pro tempore, and because the papers appointing
him were not notarized, file stamped and recorded in the trial courts CCS
for April 17, on that date Judge Murphy was presiding not as a
properly appointed judge pro tempore, but in the capacity of Master Commissioner.
Ringham, 753 N.E.2d at 34. Trial Rule 63(E), which governs the appointment
of a judge pro tempore, states in pertinent part that [a] judge who
is unable to attend and preside at his court for any cause may
appoint in writing a judge pro tempore to conduct the business of this
court during his absence. The written appointment shall be entered in the
records of the court. Although we agree that notarizing, file stamping, and
contemporaneously noting appointment papers in the CCS is desirable and would minimize the
risk of the type of confusion that arose in this case, we do
not believe reversible error occurred by reason of these irregularities. Although Rule
63(E) requires the written appointment to be entered of record, there is no
explicit requirement as to the timing of that entry. Judge Pratt found
that the appointment was in fact made on April 17, and that finding
is not clearly erroneous. Indeed, it seems clearly correct.
Here, the propriety of Judge Murphys appointment did not become an issue until
Ringhams initial appeal. When the Court of Appeals realized that the Record
on Appeal was incomplete, it remanded to the trial court for findings.
The trial court held an evidentiary hearing, then transmitted its findings of fact
and conclusion of law, along with the appointment papers, to the Court of
Appeals, which added them to the Record on Appeal. This is exactly
what Indiana Appellate Rule 32 requires.
See footnote Under these circumstances, supplementing the record
pursuant to Appellate Rule 32 was sufficient to establish compliance with Trial Rule
63(E). Finally, although Judge Murphy referred to himself as commissioner when he
explained Judge Pratts absence to the parties, a judges status is determined by
an examination of the record, not the judges self-description.
Dearman v. State,
632 N.E.2d 1156, 1159 (Ind. Ct. App. 1994), trans. denied. As explained
above, the trial court record, as supplemented, shows that Judge Murphy was validly
appointed judge pro tempore.
II. Jury Instructions
Ringham tendered a mistake of fact jury instruction. Without objection from Ringham,
the trial court modified the instruction to mirror Indiana Code section 35-41-3-7, and
instructed the jury that [i]t is a defense that the person who engaged
in the prohibited conduct was reasonably mistaken about a matter of fact if
the mistake negates the culpability required for the commission of the offense.
The trial court separately instructed the jury on the elements of the crime,
that the State was required to prove the elements of the crime, including
intent, beyond a reasonable doubt, and that if the State failed to do
so the jury should find Ringham not guilty. The court also instructed
the jury that Ringham was not required to present any evidence to prove
his innocence or to prove or explain anything. On appeal, Ringham contended
the trial court committed fundamental error when it failed to instruct the jury
that the State had the burden of disproving Ringhams mistake of fact defense.
The Court of Appeals agreed, because [w]ithout such an instruction the jury
was free to believe that the State had no burden. Ringham, 753
N.E.2d at 38. We do not agree.
It is true that the State retains the ultimate burden of disproving a
mistake of fact defense beyond a reasonable doubt. Nordstrom v. State, 627
N.E.2d 1380, 1383 (Ind. Ct. App. 1994), trans. denied. Nevertheless, when this
Court considers a claim of fundamental error, we look to the jury instructions
as a whole to determine if they were adequate. Turner v. State,
682 N.E.2d 491, 497 (Ind. 1997). We addressed a factually similar issue
in Harlan v. State, 479 N.E.2d 569 (Ind. 1985). There, the trial
court refused to instruct the jury that the State had the burden of
disproving the defendants claim of self-defense. Id. at 571. We held
that when the jury was instructed on the States burden to prove all
the elements of the crime beyond a reasonable doubt, and on the elements
of self-defense, [n]o separate instruction regarding the burden of proof upon the issue
of self-defense was necessary. Id. Here, the trial court instructed the
jury on the elements of the crime, the States burden of proving those
elements beyond a reasonable doubt, and Ringhams mistake of fact defense, and explained
that Ringham did not have to explain or prove anything. Accordingly, we
do not believe the trial courts failure to specifically instruct the jury on
the States burden to disprove Ringhams mistake of fact defense might have led
the jury to believe the State had no burden. There was no
Pursuant to Indiana Appellate Rule 58(A)(2), we summarily affirm the Court of Appeals
finding that the trial court did not err when it admitted into evidence
C.C.s prior consistent statement. The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
The order book is not in the record. At the hearing
on remand, Judge Pratt made the following findings of fact:
2. Judge Pratt executed Appointment of Attorney as Judge Pro Tempore papers,
to allow Master Commissioner Alex Murphy to preside over defendants trial as judge
pro tempore. Judge Pro Tempore Murphy then presided over defendants trial until
its conclusion on April 18, 2000.
3. As done in the regular course of business, the documents appointing
Murphy as judge pro tempore were placed in the Marion County Clerks order
4. These documents were intended to be a part of defendants record
of proceedings, however the Marion County deputy clerk failed to include the pro
tempore papers in the record of proceedings.
Rule 32, the rough equivalent of former rule 7.2(C)(2), provides that if
a disagreement arises as to whether the Record on Appeal accurately discloses what
occurred in the trial court, the trial court shall issue an order either
confirming the disputed record or correcting it.