Johnson v. State

974 N.E.2d 604

Mark A. JOHNSON, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A05–1112–CR–681.

Court of Appeals of Indiana.

Sept. 21, 2012.

Appeal from the Marion Superior Court; The Honorable Kurt Eisgruber, Judge. Cause No. 49G01–1106–FB–41966.

Valerie K. Boots, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Michelle Bumgarner, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

BARNES, Judge.

Case Summary

Mark Johnson appeals his convictions for Class B felony rape, Class D felony criminal confinement, and Class A misdemeanor battery. We affirm in part, reverse in part, and remand.

Issues

The issues before us are:

I. whether Johnson's convictions for rape, criminal confinement, and battery violate double jeopardy principles;

II. whether the trial court properly denied Johnson's motion to dismiss that was based on alleged destruction of evidence by the State; and

III. whether the trial court properly refused to permit Johnson to introduce evidence suggesting the victim may have had sexual activity with a person or persons other than him shortly before the rape occurred.

Facts

The evidence most favorable to the convictions is that at around noon on June 12, 2011, A.T. agreed over the phone to go to Johnson's home in Indianapolis. A.T. went to Johnson's home hoping to smoke marijuana with him. Johnson told A.T. after she arrived that he did not have any marijuana but that someone else would bring some to the home at a later time. Meanwhile, the two sat on a couch and discussed each other's children. Johnson smoked crack cocaine and drank beer, while A.T. smoked only cigarettes and did not smoke any crack or drink any alcohol.

At some point, Johnson began taking off his clothes. A.T. then stood up, intending to leave, but Johnson grabbed her arm and threw her back on the couch. A.T. began yelling and telling Johnson to stop. Instead, Johnson pulled down A.T.'s pants, held her arms over her head, and had vaginal intercourse with her while she continued begging him to stop. After a period of time, Johnson stopped having intercourse, and A.T. pulled up her pants and ran out of the house. While driving away, planning on going to a hospital, A.T. saw a parked police car and reported what had happened to the officer.

DNA testing revealed the presence of biological material from A.T. on Johnson's penis and fingers and biological material from Johnson on A.T.'s neck.¹ However, there was no biological material from Johnson recovered from A.T.'s genital area or clothing. Additionally, there was DNA from three unidentified males recovered from the panties A.T. was wearing when she went to the hospital after the rape.

When police questioned Johnson about A.T.'s rape allegation and told him that A.T. had denied smoking crack, Johnson accused her of lying and asked whether A.T. would be tested for drugs. The interviewing officer, Detective Laura Smith, said that A.T.'s blood would be so tested at the hospital. However, this statement was based on Detective Smith's outdated belief that toxicology testing of the victim was standard rape examination protocol when in fact that protocol had been changed and toxicology was no longer performed. Instead, a liquid sample of A.T.'s blood was disposed of, without first being tested for the presence of drugs, after a lab technician placed a sample of the blood on a dry card for DNA testing purposes.

On June 15, 2011, the State charged Johnson with Class B felony rape, Class D felony criminal confinement, and Class A misdemeanor battery. The State later filed an allegation that Johnson was an habitual offender. Before trial, Johnson filed a motion to introduce evidence of the unidentified DNA found in A.T.'s underwear, which the trial court denied. Also before trial, Johnson sought dismissal of the prosecution on the basis that the State had destroyed material evidence, i.e. A.T.'s liquid blood, which Johnson claimed could have proven through toxicology testing that A.T. was under the influence of drugs and/or alcohol at the time of the incident, rendering her less credible. ² The trial court also denied this motion. On November 3, 2011, after a jury trial, Johnson was found guilty as charged, and he admitted to being an habitual offender. The trial court entered judgments of conviction on all three guilty findings and sentenced Johnson accordingly. Johnson now appeals.

Analysis

7. Double Jeopardy

We first address Johnson's claim that his convictions for rape, criminal confinement, and battery violate double jeopardy principles. For purposes of the Double Jeopardy Clause of the Indiana Constitution, two offenses are identical and one must be vacated if the evidentiary facts establishing the essential elements of one offense also establish all of the essential elements of a second offense. Spivey v. State, 761 N.E.2d 831, 833 (Ind.2002). Indiana courts also have long adhered to a series of rules of statutory construction and common law that prohibit multiple convictions for related offenses. Pierce v. State, 761 N.E.2d 826, 830 (Ind.2002).

One of these common law or statutory rules prohibits “ ‘[c]onviction and punishment for a crime which consists of the very same act as an element of another crime for which the defendant has been convicted and punished.’ “ Guyton v. State, 771 N.E.2d 1141, 1143 (Ind.2002) (citing Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring)). Specifically, where confinement of a victim is coextensive with the behavior or harm necessary to establish an element of another crime, such as robbery or rape, then the confinement conviction should be vacated. See Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring) (citing Wethington v. State, 560 N.E.2d 496, 508 (Ind.1990)). Conversely, relief is not required if the behavior or harm of a second offense is either separate from or more extensive than that necessary to constitute an element of the first crime. Id. (citing Webster v. State, 628 N.E.2d 1212, 1214 (Ind.1994)). Likewise, convictions for both battery and rape cannot stand and the battery conviction must be vacated where the battery was a necessary element of the rape. Ott v. State, 648 N.E.2d 671, 673–74 (Ind.Ct.App.1995). Where it is clear, however, that a battery was separate from a rape, then convictions for both offenses may stand. Moore v. State, 882 N.E.2d 788, 794–795 (Ind.Ct.App.2008).

The tests for determining whether constitutional or common law rules against double jeopardy have been violated are largely co-extensive. We must “consider the evidence, charging information, final jury instructions and arguments of counsel in determining what facts the trier-of-fact used to establish each element of an offense.” Boss v. State, 964 N.E.2d 931, 937 (Ind .Ct.App.2012).

Here, Johnson was charged with rape by compelling A.T. to have sex with him “by force or imminent threat of force....” App. p. 36. The confinement count charged that Johnson confined A.T. without her consent “by holding [A.T.] on the couch....” Id. The battery charge alleged that Johnson battered A.T. by “grabbing” her. Id. at 37. It appears to us that the charging information makes no clear distinction between the rape, confinement, and battery, with the battery and confinement being the means by which Johnson accomplished the rape on the couch. The jury instructions included the charging information verbatim and contained no language that would clearly differentiate the charges.

Regarding argument of counsel, the prosecutor argued with respect to the rape, “He's got her pinned down. He's got her held down and that's the force that's necessary.” Tr. p. 703. With respect to confinement and battery, the prosecutor argued:

Then with respect to the crimes of confinement and battery many of the elements are very similar. In this case what we'd have to prove's the defendant knowingly confined [A.T.] without her consent. Ladies and gentlemen, that happened when he grabbed her as she was trying to leave and he threw her down on the couch. There's no consent that can be implied in that and then the battery charge—the defendant knowingly touched [A.T.] in a rude, insolent or angry manner which resulted in bodily injury to [A.T.]. Certainly pinning someone down on a couch which resulted in bruising to her that is a battery conviction as well.

Id. at 703–04. This argument blurs the lines between the force required for rape and that required for confinement and battery.

Finally, the evidence does not provide a reasonable basis for distinguishing between the force used to accomplish the rape and the force associated with the confinement and battery. This was all one single, continuous event, which started when A.T. stood up from the couch to leave and Johnson responded by throwing her back down onto it, and led directly into Johnson holding her wrists while he raped her. We conclude, after considering the charging information, jury instructions, argument of counsel, and the evidence, that the confinement and battery were entirely coextensive with the force Johnson required to accomplish the rape. We thus direct that Johnson's convictions for criminal confinement and battery be vacated.

II. Motion to Dismiss

Next, we review the trial court's denial of Johnson's motion to dismiss the charging information on the basis that the State destroyed material evidence, i.e., A.T.'s liquid blood that was drawn shortly after the incident. We review the denial of a motion to dismiss a charging information for an abuse of discretion. Shuai v. State, 966 N.E.2d 619, 625 (Ind.Ct.App.2012), trans. denied. We will reverse only if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Delagrange v. State, 951 N.E.2d 593, 594 (Ind .Ct.App.2011). However, we will review any legal questions...