Sep 12 2013, 6:04 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREW B. ARNETT GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DARREN L. BUNCH, )
)
Appellant-Defendant, )
)
vs. ) No. 73A01-1301-CR-15
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE SHELBY SUPERIOR COURT
The Honorable Jack A. Tandy, Judge
Cause No. 73D01-1006-FB-12
September 12, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Darren L. Bunch (“Bunch”) appeals his conviction of rape1 as a Class B felony.
Bunch raises two issues for our review, which we restate as follows:
I. Whether the evidence was sufficient to sustain his conviction; and
II. Whether his sentence was appropriate in light of his character and
the nature of the offense.
We affirm.
FACTS AND PROCEDURAL HISTORY
On the evening of April 24, 2010, Kimberly Lane (“Lane”) drove to J.G.’s
parents’ home in order to pick up J.G. and their mutual friend Terri Ward (“Ward”). The
women went to one bar for a short time, then traveled to Bo Jack’s, a bar in downtown
Franklin. Because she was driving, Kimberly had only two drinks throughout the
evening, but J.G. and Ward consumed a considerable amount.
While the group was at Bo Jack’s, Bunch approached Lane multiple times. He
repeatedly offered to purchase Lane a drink, but she denied his offers. Bunch then
approached J.G., offered her a drink, and J.G. accepted the offer. Due to her alcohol
consumption, J.G. does not recall certain portions of the evening, and does not remember
meeting Bunch.
At one point in the evening, Bunch attempted to kiss J.G., who had exclusively
dated women for the previous twelve years. When this occurred, Lane decided it was
time for the women to leave and began assisting J.G. and Ward into the car. Bunch tried
to enter the vehicle with them, but Lane told him to leave them alone. Lane began
1
See Ind. Code § 35-42-4-1.
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driving J.G. and Ward back to J.G.’s parents’ home. During the car ride, which took
place around 4:00 a.m. on April 25, 2010, Bunch and J.G. exchanged phone calls. Bunch
told the women that he was having a party at his house with “a lot of people.” Tr. at 74,
83. Bunch drove over to pick up J.G. and Ward. When they arrived at his residence,
there was no one else present.
J.G. remembers being at Bunch’s residence and that Ward wanted cigarettes. J.G.
and Bunch then went to purchase cigarettes at a gas station. When Bunch and J.G.
returned, Bunch parked his vehicle where Ward could not see inside of it, and asked J.G.
for a kiss. She complied, although she was frightened at the time. J.G. next remembers
being in the backseat of Bunch’s vehicle, but she does not recall who entered the backseat
first.
Bunch unbuttoned J.G.’s pants and pulled her pants and underwear down. J.G.
told Bunch “no,” was crying, and was afraid that Bunch would harm her. Tr. at 43-44.
Bunch then inserted his penis into J.G.’s vagina and ejaculated. J.G. cried throughout the
intercourse and repeatedly said “No!” “Please stop!” and “Get off me!” Tr. at 45-46.
J.G. did not hit Bunch because she was scared. Bunch was on top of J.G. throughout the
entire encounter.
J.G. ran from the vehicle into Bunch’s home, and told Ward that Bunch had raped
her. Ward called Lane to pick up her and J.G. Bunch gave the two women Vicodin, and
after approximately twenty minutes, drove the women to meet Lane at a grocery store
parking lot.
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When Ward and J.G. returned to J.G.’s parents’ home, Ward told J.G.’s parents
what happened, and police were called. J.G. spoke with the police and then went to the
hospital where she underwent a sexual assault examination. The examiner found redness
on parts of J.G.’s vagina and mild abrasions that were common in non-consensual sexual
encounters.
Bunch agreed to undergo a polygraph test and waived challenge to the
admissibility of the test. Prior to the test, Bunch informed the polygraph examiner that he
and J.G. had consensual sex, and that J.G. had only said “[d]on’t do it!” prior to his
ejaculation. Tr. at 118. During the test, the examiner asked Bunch whether J.G. ever
communicated that she did not want to have sex before his penis was inside her vagina.
The examiner also asked whether, before his penis entered J.G.’s vagina, J.G. ever said
no. Bunch answered negatively to both questions; however the polygraph test showed
that Bunch failed to tell the truth regarding the relevant questions.
When the examiner confronted Bunch with the test results, Bunch admitted that
J.G. “said no approximately two to three times prior to him having intercourse.” Id. at
121. Bunch also admitted to lying when he stated that J.G. was on top of him during the
intercourse. He further told the examiner that he took the polygraph because he was
“tryin’ to beat it.” Id. at 122. Bunch exhibited remorse, and the examiner suggested that
he write an apology letter to J.G. In that letter, Bunch wrote: “You did tell me no but I
didn’t believe you truley [sic] ment [sic] it because I thought you wanted to have sex with
me.” State’s Ex. 6. Bunch continued: “Please try to understand that it was late and we
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were drinking and very exited [sic] in the heat of moment [sic] and I made a terrible
decision by not listening to you.” Id.
The State charged Bunch with rape as a Class B felony. Bunch waived his right to
a trial by jury, and the trial court scheduled a bench trial for May 23, 2011. Bunch failed
to appear for his trial, and Bunch’s counsel requested a continuance. The trial court
denied the continuance and proceeded to try Bunch in absentia. The trial court found
Bunch guilty.
After a bounty hunter captured Bunch, the trial court conducted a sentencing
hearing on December 16, 2011. At the hearing, the prosecutor asked if Bunch could
comprehend how the present matter was difficult for J.G., and Bunch stated: “I really
don’t see how.” Tr. at 197. Bunch also commented: “I didn’t screw up her life . . . She
was screwed up from the get go.” Id. at 198. He further noted that the victim “was no
saint.” Id.
In sentencing Bunch, the trial court found his failure to appear at trial as an
aggravating circumstance. As a mitigating factor, the trial court found that J.G.
“facilitated the event that led to [Bunch’s] action,” in that she “facilitated or put herself in
a position that she became a victim.” Id. at 207-08. The trial court then sentenced Bunch
to twelve years in the Indiana Department of Correction. Bunch now appeals.
DISCUSSION AND DECISION
Bunch raises two arguments. First, he challenges the sufficiency of the evidence
to sustain his rape conviction, contending that the State did not sufficiently establish the
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essential element of force. Next, Bunch argues that his sentence was inappropriate in
light of the nature of the offense and his character.
I. Sufficiency of the Evidence
In reviewing a sufficiency of the evidence claim, we do not reweigh the evidence
or judge the credibility of the witness. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005).
When we are confronted with conflicting evidence, we must consider it most favorably to
the conviction. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We must affirm if the
probative evidence and reasonable inferences drawn from that evidence could have
allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.
McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).
Indiana Code section 35-42-4-1 provides in relevant part that a person commits
Class B felony rape when the victim was “compelled by force or imminent threat of
force.” Ind. Code § 35-42-4-1. However, “the force necessary to sustain a rape
conviction need not be physical . . . it may be inferred from the circumstances.” Bryant v.
State, 644 N.E.2d 859, 860 (Ind. 1994). It is from the victim’s perspective, not the
assailant’s, from which the presence or absence of forceful compulsion is to be
determined. Tobias v. State, 666 N.E.2d 68, 72 (Ind. 1996). The test is a subjective one,
which looks to the victim’s perception of the circumstances surrounding the incident. Id.
“Thus, the issue is whether the victim perceived the aggressor’s force or imminent threat
of force as compelling her compliance.” Filice v. State, 886 N.E.2d 24, 37 (Ind. Ct. App.
2008).
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Here, Bunch unbuttoned J.G.’s pants and pulled her pants and underwear down.
See Bryant, 644 N.E.2d at 861 (observing, when considering the element of force, that
“the evidence showed that [the defendant] took down [the victim’s] pants and
underwear.”). Further, J.G. repeatedly and clearly protested Bunch’s actions, yet Bunch
ignored her protests and, in the face of them, engaged in intercourse. See Tobias, 666
N.E.2d at 72 (finding the evidence supported the element of force, in part because the
defendant ignored the victim’s “lack of consent, verbal resistance, and requests for him to
stop”). J.G. was crying, but Bunch continued, maintaining a position of control on top of
her. The sexual assault examination demonstrated abrasions on J.G.’s vagina, which
were consistent with non-consensual sex. Consistent with our standard of review, we
conclude that the evidence was sufficient to establish that J.G. “perceived [Bunch’s] force
or imminent threat of force as compelling her compliance.” Filice, 886 N.E.2d at 37.
II. Appropriateness of the Sentence
Bunch next argues that his twelve-year sentence was inappropriate. We may
revise a sentence after careful review of the trial court’s decision if we conclude that the
sentence is inappropriate based on the nature of the offense and the character of the
offender. Ind. Appellate Rule 7(B). “Under this rule, the burden is on the defendant to
persuade the appellate court that his or her sentence is inappropriate.” McMahon v. State,
856 N.E.2d 743, 749 (Ind. Ct. App. 2006) (citing Childress v. State, 848 N.E.2d 1073,
1080 (Ind. 2006)). The reviewing court “must and should exercise deference to a trial
court’s sentencing decision, both because Rule 7(B) requires us to give ‘due
consideration’ to that decision and because we understand and recognize the unique
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perspective a trial court brings to its sentencing decisions.” Stewart v. State, 866 N.E.2d
858, 866 (Ind. Ct. App. 2007).
In support of his character, Bunch contends that the trial court should have found
his low risk to reoffend as a mitigating circumstance. A trial court’s “reasons given, and
the omission of reasons arguably supported by the record, are reviewable on appeal for
abuse of discretion,” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007). An abuse of
discretion occurs if the decision is clearly against the logic and effect of the facts and
circumstances before the court, or the reasonable, probable, and actual deductions to be
drawn therefrom. Id. at 490. Still, “[a]n allegation that the trial court failed to identify or
find a mitigating factor requires the defendant to establish that the mitigating evidence is
both significant and clearly supported by the record.” Id. at 492. In his brief, Bunch
makes only a single-sentence argument as to this point—a threadbare assertion that the
trial court should have found that Bunch had a low risk to reoffend. Appellant’s Br. at 16
(“A proper mitigator was that Bunch’s actions were not likely to happen again and he
would respond to a short term imprisonment.”). Bunch has thus failed to meet his
burden, and has established neither the significance of this potential factor nor why the
record clearly supports it.
Bunch further contends that the trial court unreasonably determined that his failure
to appear at the trial was an aggravating factor. The trial court observed that, although
Bunch spoke of wanting to set a positive example for his children, his failure to appear
gave the example of running away from circumstances and demonstrated “significant
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character flaws.” Tr. at 207. We do not find that the trial court abused its discretion in
classifying Bunch’s failure to appear as an aggravating factor.
In further support of his character, Bunch urges that several witnesses testified as
to his positive character and mild-mannered nature, and that he has a limited criminal
history, which consists of one prior drunk driving conviction. He contends that the
failure to appear was just a lapse of judgment. Nevertheless, the trial court noted that
Bunch displayed “an attitude of total lack of empathy for the victim and . . . a hostile
aggressive angry attitude.” Id. Additionally, Bunch’s comments made at sentencing
appeared to shift blame to the victim, altogether demonstrating that a sentence of twelve
years is not inappropriate in light of his character.
As to the nature of the offense, Bunch contends that his actions do not warrant an
aggravated sentence because he did not use weapons or pin J.G. against the car seat, nor
did he engage in any coercive or threatening behavior prior to the sexual intercourse.
Bunch’s arguments are unpersuasive. Bunch evinced coercion when he singled out an
intoxicated woman, invited her back to his home on false pretenses, maneuvered his car
in a manner to conceal his actions, removed her clothing, and engaged in forceful sexual
intercourse, after she already had said no and was crying, and as she continuously
pleaded with him to stop. Bunch has failed to demonstrate that the trial court’s sentence
was inappropriate.
We further note that in its discussion of mitigating circumstances, the trial court
found that J.G. “facilitated” the rape with her actions by placing herself in the position
that “she became a victim.” Tr. at 207-08. Although it does not factor into our decision,
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we disapprove the trial court’s finding of mitigation that the victim had facilitated the
rape. Whether or not intoxicated, a rape victim is not responsible for her victimization,
and the victim’s alcohol consumption does not mitigate, excuse, or justify the crime.
Here, the defendant lied to the victim and her friends in an effort to manipulate their
coming to his house where he used force to compel sex with the victim, who was much
smaller in size than he, after the victim had repeatedly said, “No.” The victim’s
intoxication was not a proper mitigator, and she did not in any manner “facilitate” the
rape.
Affirmed.
ROBB, C.J., and RILEY, J., concur.
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