Attorneys for Appellee
Attorney General of Indiana
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
December 20, 2001
Defendant then ordered the woman into the back office again. While holding
her at gunpoint, he unzipped his pants and required her to perform oral
sex. Defendant then forced her to lower her pants and underwear.
He then tried, unsuccessfully, to penetrate her anally. After telling the woman
to put her clothes on, he demanded her purse and took all of
her money. He then asked whether she could open the safe.
When she told him she couldnt, he had her unplug the phone and
lay down by the safe. Defendant then fled from the Budgetel.
Defendant was convicted of two counts of Criminal Deviate Conduct, Class A felonies,
Robbery, a class B felony,
and Confinement, a class B felony.
also pled guilty to being a habitual offender.
The trial court sentenced
defendant to an aggregate term of 100 years: 50 years for count
I, criminal deviate conduct, enhanced by 30 years for being a habitual offender;
50 years for the other criminal deviate conduct count to be served concurrently
with the first count; 20 years for count III, robbery, to be served
consecutively with count I; and 20 years for count IV, confinement, to be
served concurrently with the first three counts.
The trial court responded that the State still had additional witnesses to testify
and that they may be able to answer the question. The court
indicated that the parties had been made aware of her concern and suggested
that she wait and see if another witness addresses the i
Defendant then sought to prevent testimony that Detective Cahill filed charges against the
Defendant after finding that his fingerprints matched those at the scene. Defendant
wanted to exclude any evidence that would suggest to the jury that he
had been arrested prior to the arrest for the present crime.
Outside the presence of the jury, the trial judge expressed the view that
the juror was entitled to an answer. The trial court said it
was concerned that the juror [would be] left with a false impression.
That until [the morning of the trial], [Defendant] was never ident
ified as having
left those prints.
The Defendant and the State eventually agreed that Detective Cahill could testify that
he had received identification information from another officer and arrested Defendant in re
During Detective Cahills testimony, and prior to any mention of the fingerprints, D
Cahill had identified a photo array he had put together following the robbery
that contained a mug shot of Defendant. Detective Cahill testified that the
victim could not make an identification from the photo array. Defendant objected
to the introduction of the photo array, arguing that it was not relevant
given that the victim was not able to identify Defendant. Overruling the
objection, the trial court allowed the introduction of the photo array. The
trial court reasoned, The detective testified that in September of  the photograph
that has been identified as the defendant resembled his appearance on that date.
... I have not seen it so I dont know if theres
a difference in that photograph ... but thats for the jurors to review
and conclude. (Id.)
Directly after the photo array evidence, the State inquired about the fingerprint ev
Detective Cahill testified that he had received information identifying the fingerprints found
at the scene and he arrested Defendant based on the fingerprint information.
Just prior to excusing Detective Cahill from the stand, the trial court inquired
as to whether the jurors question had been sufficiently answered. The juror
responded that it had.
Defendant objected to the trial courts question, arguing that the trial courts question
highlighted the testimony of Detective Cahill. Defendant now argues on appeal that
the combination of the photo array and the testimony regarding fingerprints prejudiced Defe
because it indicated to the jury that Defendant had a criminal history.
(Appellants Br. at 15.) Defendant concedes that he did not object to
the introduction of the fingerprint evidence.
He also concedes that the admission
of a photo array containing mug shots is not per se inadmissible.
Nevertheless, Defendant argues that the combination of the fingerprint evidence and the photo
array were so prejudicial as to require reversal of his convictions.
Here, the cumulative effect of the photographs and fingerprints may have suggested to
the jury that Defendant had a prior criminal history. Defendant, however, failed
to object to the admission of the fingerprint evidence and we will therefore
only reverse if we find fundamental error. The standard for fundamental error
is whether the error was so prejudicial to the rights of the defendant
that a fair trial was impossible. See Carter v. State, 738 N.E.2d
665, 677 (Ind. 2000) (citing Charlton v. State, 702 N.E.2d 1045, 1051 (Ind.
Given the evidence of Defendants guilt here, however, we find no reversible error. Where the jurys verdict is supported by independent evidence of guilt such that upon review we are satisfied that there was no substantial likelihood that the evidence in question played a part in appellants conviction, any error in its admission is harmless. Roche, 596 N.E.2d at 901. Here, Defendant was videotaped as he held up the victim. His fingerprints were also found on the front desk and the registration card that the victim handed to him. We find no fundamental error and, in light of the overwhelming evidence of Defendants guilt, we find that any error was harmless.
The Fifth Amendment privilege against compulsory self-incrimination is violated when a prosecutor makes
a statement that is subject to reasonable interpretation by a jury as an
invitation to draw an adverse inference from a defendant's silence.
State, 669 N.E.2d 733, 739 (Ind. 1996). Article I, section 14, of
the Indiana Constitution also protects a defendants right to remain silent at trial.
See id. at 739 n. 14. If in its totality,
however, the prosecutor's comment is addressed to other evidence rather than the defendant's
failure to testify, it is not grounds for reversal. See Hopkins v.
State, 582 N.E.2d 345, 348 (Ind. 1991) (citing Hill v. State, 517 N.E.2d
784, 788 (Ind. 1988)).
Defendant never objected to the prosecutors comments. Generally, failure to object at
trial results in waiver of an issue for appeal.
See Issacs v.
State, 673 N.E.2d 757, 763 (Ind. 1996). When a prosecutors conduct subjects
a defendant to grave peril and has a probable persuasive effect on the
jurys decision, it may amount to fundamental error. See id. That
is what Defendant claims here.
We do not find any error. The prosecutors comment did not focus
on, or even me
ntion, Defendants decision not to testify. The comment was
in response to Defendants closing argument suggesting that the jury should not believe
the victim. The State invoked the language given in the instruction regarding
conflicting testimony and pointed out that the testimony in this case was not
contradictory. See Hopkins, 582 N.E.2d at 348 (Arguments which focus on the
uncontradicted nature of the State's case do not violate the defendant's right not
to testify.); see also Callahan v. State, 527 N.E.2d 1133, 1136-37 (Ind. 1988)
(holding that the remark, "Let's see, has there been any witnesses presented who
have told us where [Defendant] was that morning?" did not focus on Defendants
failure to testify and thus was not improper.)
The victim testified that Defendant jumped over the front desk of the hotel
and asked her where the money was. She told him it was
in the back office. He forced her into the back office and
instructed her to give him the money. The information indicates that Defendant
was charged with confinement for removing [the victim] from the registration desk of
the Budgetel Motel, to the back office of the Budgetel Motel. He
was charged with robbery for taking from her, U.S. Currency, by putting [the
victim] in fear or by using or threatening the use of force...
Indianas Double Jeopardy Clause was intended to prevent the State from being able to proceed against a person twice for the same criminal transgression. Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).
Defendant contends that the robbery and confinement constitute the same act and therefore one of the convictions must be overturned. We find that Defendant committed separate criminal transgressions for which he could be convicted of confinement and robbery. Defendant forced the victim to the back office; forced her to hand over money; sexually assaulted her; then robbed her again (taking money out of her purse).
Forcing the victim to the back office while instructing her to hand over
money arguably constitutes one criminal transgression for the purposes of Indianas double jeopardy
rule. Defendant argues that it does. Given Defendants other acts, however,
we do not need to reach that issue. To succeed in his
claim of double jeopardy under the Richardson actual evidence test, Defendant must demonstrate
a reasonable possibility that the jury used the same evidentiary facts to establish
the essential elements of both Robbery and Confinement. See Richardson, 717 N.E.2d
at 53. But Richardson requires that the possibility be reasonable, not speculative
or remote. Griffin v. State, 717 N.E.2d 73, 89 (Ind. 1999).
Given the clear evidence of a second, separate robbery, we find that Defendant
has failed to demonstrate a reasonable possibility that the jury found him guilty
of two offenses based on the same evidentiary facts. After assaulting
the victim, Defendant committed a second act of robbery when he took money
from her purse. This act occurred after the two acts of assault,
after the initial robbery, and after Defendant confined the victim by forcing her
to the back room. Therefore, the robbery conviction and the confinement conviction
are supported by two clearly separate acts. The confinement arises from the
act of forcing the victim to the back office, while the robbery conviction
arises from the distinct transgression of taking money from her purse.
The trial court has discretion to determine the appropriate sentence, and it may
be reversed only for a manifest abuse of that discretion. Ind. Appellate
Rule 17(B); Ford v. State, 704 N.E.2d 457, 461 (Ind. 1998).
The presumptive sentence for a class A felony is 30 years. See Ind. Code § 35-50-2-4 (1998). Up to 20 years may be added for aggravating circumstances and up to ten years may be subtracted for mitigating circumstances. See id. The presumptive sentence for a class B felony is 10 years, with not more than 10 years added for aggravating circumstances and not more than four years may be subtracted for mitigating circumstances. See Id. § 35-50-2-5. If a defendant is found to be a habitual offender, the trial court shall sentence [him or her]... to an additional fixed term that is not less than the presumptive sentence for the underlying offense nor more than three (3) times the presumptive sentence for the underlying offense. However, the additional sentence may not exceed thirty (30) years. Id. § 35-50-2-8(e).
Defendants total executed sentence is 100 years. The first component of that
ntence is a fully enhanced sentence of 50 years for criminal deviate conduct.
This enhancement was supported by the aggravating circumstance of Defendants significant
history of violent crime. Defendants pre-sentence report indicates that Defendant had a
juvenile history that included true findings of fleeing, battery, two counts of violating
probation, violation of home detention, conversion, escape, and carrying a handgun. As
an adult, Defendant had previously been convicted of conversion, four unrelated counts of
resisting law enforcement, two unrelated charges of auto theft, possession of cocaine, two
unrelated counts of driving while license suspended, robbery, and carrying a handgun without
The second component of the sentence is a 30-year habitual offender enhancement.
Defendant makes no claim that it was improperly imposed.
The third component of the sentence is a fully enhanced sentence of 20
years for ro
bbery, to be served consecutive to the 80 years just described.
While the trial court could have been more explicit in explaining its
reasoning for fully enhancing the sentence on this count and ordering it to
be served consecutively, we find its reasonsDefendants prior criminal history and the fact
that the robbery was a separate offense from the sexual assaultsufficient to conclude
that the sentence is not manifestly unreasonable.