FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Dec 28 2012, 9:48 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELLEN M. O’CONNOR GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
ANDREW FALK
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARK SEXTON, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1204-CR-282
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Stanley E. Kroh, Judge Pro Tempore
Cause No. 49G03-1107-FB-52385
December 28, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Mark Sexton appeals his habitual-offender enhancement after his felony
convictions. He contends the trial court abused its discretion in allowing the State to file
the habitual-offender information more than ten days after the omnibus date and there is
insufficient evidence that he is a habitual offender. Finding that the trial court did not
abuse its discretion in finding good cause in the State’s delay in filing the habitual-
offender information and there is sufficient evidence that Sexton is a habitual offender,
we affirm.
Facts and Procedural History
In July 2011, A.J. was living in Indianapolis with her boyfriend. The two broke
up in mid-July, and A.J. moved out and stayed with her father and step-mother for a few
days. Since her father had only a studio apartment, A.J. kept looking for a different place
to live. She decided to contact Sexton, her uncle, and he agreed to let her stay with him.
Sexton picked A.J. up on July 23, and it was only then that A.J. learned that Sexton no
longer lived with his wife. The two ran errands together before going to Sexton’s home –
they went to the laundromat, to buy groceries, and to buy alcohol. A.J. also purchased
Vicodin “off of somebody off the street.” Tr. p. 80.
That night, A.J. and Sexton drank alcohol and snorted Vicodin, and A.J. saw
Sexton take some Klonopin, too. A.J. began to feel tired and sick, so she went to bed.
They had previously decided that A.J. would sleep on the couch, but Sexton said that A.J.
could sleep in his bed and he would sleep on the couch. A.J. changed into a tank top and
shorts and fell asleep in Sexton’s bed.
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In the middle of the night, A.J. awoke to find that Sexton had removed her clothes
and was naked on top of her. Sexton told A.J. she was beautiful, he knew she was his
niece and he knew it was wrong, but he was attracted to her. A.J. started to cry and told
Sexton she did not want him to do this. Sexton “jammed his fingers” into A.J.’s vagina,
id. at 89, and then put his mouth on her vagina and licked it. Id. at 90. He rubbed his
penis on her vagina, but he was unable to get an erection so he did not actually complete
the act of intercourse. Id. at 91-92.
A.J. told Sexton that she needed to go to the bathroom, so he let her leave the
bedroom. While in the bathroom, A.J. noticed that she had blood coming from her
vagina. Id. at 92-93. A.J. waited in the bathroom for fifteen to twenty minutes and then
slowly walked out, noticing that Sexton was asleep on the bed. A.J. quickly gathered her
clothes into her laundry basket, but she accidentally left the basket behind when she left
the house. She took Sexton’s keys and drove to a nearby gas station where she called her
friend, Andrew Clayton, and asked him to come pick her up. When Clayton arrived, A.J.
told him she had been assaulted by a relative; she was “hysterical” and looked “as if she
had seen a ghost.” Id. at 151. Clayton followed A.J. back to Sexton’s house so she could
pick up her clothes. Clayton did not go inside Sexton’s house, but he stayed on the phone
with A.J. while she went inside. When A.J. came outside, Clayton called the police, and
IMPD Detective Laura Smith came to the scene. Detective Smith took A.J. to St. Francis
Hospital where A.J. had a sexual assault exam. Sexton was taken to Wishard Hospital for
an exam.
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The State charged Sexton with two counts of Class B felony criminal deviate
conduct, Class B felony attempted rape, and Class C felony incest. The State sent a plea
offer to Sexton, and indicated that if he were to accept the offer, a habitual-offender
enhancement would not be filed. Sexton responded with a counter-offer two weeks later.
At the pre-trial conference on September 15, 2011, Sexton told the trial court that
he was considering the State’s offer and that he understood that if he rejected the plea
agreement, the State would file the habitual-offender enhancement. The omnibus date
was also extended to November 15, 2011, at that time. Four months later, Sexton’s
counsel sent an email to the State, asking whether it would consider a plea to sexual
battery. That same day, the State replied that it could not agree to that plea and also
informed Sexton that it would be filing the habitual-offender enhancement as had been
previously discussed.
On February 2, 2012, the State moved to amend the information by adding the
habitual-offender enhancement. The trial court granted the motion over Sexton’s
objection after a hearing. About a month later, a jury trial was held, and Sexton was
found guilty on all counts. Sexton waived his right to a trial by jury on the habitual-
offender enhancement, and the trial court found that he was a habitual offender.
At sentencing, the trial court vacated Sexton’s Class C felony incest conviction
due to double-jeopardy concerns. It then imposed eighteen years on each of the three
remaining counts and ordered that they be served concurrently. The trial court then
enhanced the first count of Class B felony criminal deviate conduct by sixteen years due
to Sexton’s habitual-offender enhancement.
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Sexton now appeals.
Discussion and Decision
Sexton raises two arguments on appeal: (1) the trial court abused its discretion in
allowing the State to file the habitual-offender information more than ten days after the
omnibus date and (2) there is insufficient evidence that Sexton was a habitual offender.
I. Habitual-Offender Enhancement
Sexton contends that the trial court abused its discretion in allowing the State to
file the habitual-offender information more than ten days after the omnibus date because
the State lacked good cause. We disagree.1
Indiana Code section 35-34-1-5(e) governs the amendment of a charging
information to include a habitual-offender charge and states:
An amendment of an indictment or information to include a habitual
offender charge . . . must be made not later than ten (10) days after the
omnibus date. However, upon a showing of good cause, the court may
permit the filing of a habitual offender charge at any time before the
commencement of the trial.
A trial court’s finding of good cause is reviewed for an abuse of discretion, which occurs
“only where the decision is clearly against the logic and effect of the facts and
circumstances.” Land v. State, 802 N.E.2d 45, 53 (Ind. Ct. App. 2004) (quoting Palmer
v. State, 704 N.E.2d 124, 127 (Ind. 1999)), trans. denied.
1
The State argues that Sexton waived this issue for appeal by not requesting a continuance after
the trial court granted the State’s motion to amend the information. We have previously held that under
Indiana Code section 35-34-1-5, “a defendant’s failure to request a continuance after a trial court allows a
pre-trial substantive amendment to the charging information over defendant’s objection results in
waiver.” Wilson v. State, 931 N.E.2d 914, 918 (Ind. Ct. App. 2010), trans. denied. However, because we
prefer to decide cases on their merits, we will address Sexton’s claim as raised on appeal.
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“Good cause” is not defined, but was found to exist in Johnican v. State, 804
N.E.2d 211 (Ind. Ct. App. 2004). The State filed its habitual-offender count well past the
ten-day period established under the statute, and approximately a month before trial. Id.
at 214-15. In explaining the delay, the State said that it had promised not to file the
habitual-offender enhancement as part of plea negotiations; as soon as it became apparent
that Johnican was not going to agree to a plea, the State filed its amendment. Id. at 215.
The trial court found that this constituted good cause, stating:
The plea negotiations continued up to or very shortly prior to the filing of
the enhancement. . . . Johnican may not now be heard to successfully argue
that he was surprised by the late filing of the enhancement. Nor should the
Defendant be permitted to virtually weaponize the State’s previous offer of
leniency, by claiming that the duration of the State’s period of forbearance
was essentially too lengthy.
Id. This Court agreed with that assessment. We reached the same conclusion in Land,
holding that the trial court did not abuse its discretion by finding “good cause in the delay
in filing the habitual-offender count because of ongoing plea offers that were made.” 802
N.E.2d at 53. We therefore hold that in this case, like in Johnican and Land, since the
State delayed in filing the habitual-offender information due to ongoing plea negotiations,
it has shown good cause for its filing of the information more than ten days after the
omnibus date.
Moreover, Sexton has failed to show that any unfair prejudice has resulted to him
as a result of the late filing of the habitual-offender information. The purpose of Indiana
Code section 35-34-1-5(e) is “to allow a defendant sufficient time to prepare a defense
for the habitual offender charge.” Id. Sexton has made no credible claim that he was
prejudiced in any way or did not have sufficient time to prepare a defense. The State
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filed its habitual-offender information on February 14, 2012, and Sexton did not ask for a
continuance at that time. Appellant’s App. p. 17. Two weeks later, Sexton asked for a
continuance due to his counsel’s scheduling conflicts, and that was granted over the
State’s objection. Id. at 89-91. As a result of that continuance, Sexton’s request for a
speedy trial was waived. Sexton contends that the waiver of his request for a speedy trial
was because of the filing of the habitual-offender information and was prejudicial to him,
but it was actually a result of his own request for a continuance. Sexton also had five
weeks to prepare his defense for trial, and he did not request a continuance for additional
time to prepare for the habitual-offender charge. Sexton has therefore failed to show that
any unfair prejudice has resulted to him as a result of the late filing of the habitual-
offender information.
We hold that the trial court did not abuse its discretion in finding good cause to
allow the State to file the habitual-offender information more than ten days after the
omnibus date.
II. Sufficiency of the Evidence
Sexton also contends that there is insufficient evidence that he was a habitual
offender. Our standard of review with regard to sufficiency claims is well settled. In
reviewing a sufficiency of the evidence claim, this Court does not reweigh the evidence
or judge the credibility of the witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind. Ct.
App. 2010), reh’g denied, trans. denied. We consider only the evidence most favorable
to the judgment and the reasonable inferences draw therefrom and affirm if the evidence
and those inferences constitute substantial evidence of probative value to support the
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judgment. Id. Reversal is appropriate only when a reasonable trier of fact would not be
able to form inferences as to each material element of the offense. Id.
In order to establish that Sexton is a habitual offender, the State must show
“beyond a reasonable doubt that the defendant previously has been convicted of two
unrelated felonies.” Dexter v. State, 959 N.E.2d 235, 237 (Ind. 2012) (citing Ind. Code §
35-50-2-8(a), (g)). In order to prove the prior felony convictions beyond a reasonable
doubt, the “State must introduce into evidence proper certified and authenticated
records,” id. at 238, that are “sufficient to establish the fact of the alleged . . .
conviction[s].” Id. at 239. Sexton, however, argues that Dexter requires a signed abstract
of judgment in order to prove a prior felony conviction. Appellant’s Br. p. 13. We
disagree, as Dexter holds only that an abstract of judgment, standing alone, must be
signed by the trial judge “to constitute substantial evidence of probative value sufficient
to sustain a habitual-offender enhancement.” Dexter, 959 N.E.2d at 239. Dexter does
not prevent us from looking at all of the documents provided by the State to determine if
it has shown two previous unrelated felony convictions beyond a reasonable doubt.
During the habitual-offender stage of proceeding, the State introduced evidence
that Sexton had previously been convicted of Class B felony burglary and sentenced to
probation on February 10, 1989, and convicted of Class B felony criminal deviate
conduct and sentenced on June 12, 1990. To show the criminal deviate conduct
conviction, the State introduced the signed abstract of judgment, the charging
information, and the arrest report from that case. Ex. p. 724-29. This was sufficient to
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show Sexton’s conviction beyond a reasonable doubt, as Dexter says that a signed
abstract of judgment standing alone will suffice. 959 N.E.2d at 239.
To show Sexton’s burglary conviction, the State provided the arrest report, the
charging information, and the order of probation from that case, as well as the signed
abstract of judgment for the revocation of Sexton’s probation after his conviction. Ex. p.
731-37. Sexton argues that this is insufficient evidence to prove his burglary conviction
beyond a reasonable doubt. We disagree. The cause number on all of the documents
match, the order of probation states that Sexton was convicted of burglary, and both the
order of probation and the abstract of judgment for the probation revocation are signed by
the trial court judge. Further, the abstract of judgment for the revocation of Sexton’s
probation explicitly states that “The defendant was found Guilty of the following crimes
under the above-referenced cause” and then lists Class B felony burglary. Id. at 736.
The date of sentencing for the burglary is not listed, but the date Sexton was sentenced to
probation is listed as “2-10-89,” id. at 737, and the date when his probation was revoked
is listed as “7-10-90,” id. at 736; both dates are well before his 2011 arrest in this case.
This is sufficient evidence to prove Sexton’s burglary conviction.
Indiana Code section 35-50-2-8(c) states in relevant part that, “A person has
accumulated two (2) prior unrelated felony convictions for purposes of this section only
if: (1) the second prior unrelated felony conviction was committed after sentencing for
the first prior unrelated felony conviction; . . . .” Sexton argues that because the date of
sentencing for his burglary conviction is not listed, we cannot be sure beyond a
reasonable doubt that the burglary conviction was before his arrest for criminal deviate
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conduct and therefore an unrelated felony. Appellant’s Br. p. 13. However, drawing
reasonable inferences from the documents provided, if Sexton was placed on probation
for Class B felony burglary on February 10, 1989, and his probation was revoked in that
same case on July 10, 1990, the sentencing for his burglary conviction naturally had to
occur before both of those dates. Sexton was arrested for Class B felony criminal deviate
conduct on June 7, 1989, almost four months after being placed on probation for his
burglary conviction. We can therefore say that the State has shown beyond a reasonable
doubt that Sexton’s sentencing for his conviction for Class B felony burglary was before
his arrest for Class B felony criminal deviate conduct, making it an unrelated felony.
Looking at all of the State’s documents together, we find that the State has
provided sufficient evidence to establish Sexton’s alleged burglary conviction beyond a
reasonable doubt. We therefore hold that there is sufficient evidence that Sexton has
previously been convicted of two unrelated felonies and as a result is a habitual offender.
Affirmed.
BAILEY, J., and BROWN, J., concur.
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