MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 14 2016, 8:42 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
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
Valerie K. Boots Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dejuan Wells, April 14, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1506-CR-604
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt Eisgruber,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G01-1309-FA-62015
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016 Page 1 of 10
Case Summary and Issues
[1] The State charged DeJuan Wells with twenty-five counts arising from conduct
related to his live-in girlfriend. A jury found him not guilty of two of those
counts, but guilty of the remainder. The trial court entered judgment of
conviction on twenty of the counts and sentenced Wells to a total of twenty-six
years. On appeal, Wells challenges only his convictions for criminal deviate
conduct, a Class B felony; rape, a Class B felony; battery, a Class D felony; and
battery, a Class A misdemeanor. He raises several issues on appeal, which we
consolidate and restate as: 1) whether there was sufficient evidence to support
his convictions for criminal deviate conduct and rape; and 2) whether his
convictions for both Class D felony battery (Count VIII) and Class A
misdemeanor battery (Count X) violate Indiana’s Double Jeopardy Clause. We
conclude there was sufficient evidence to convict Wells of criminal deviate
conduct and rape and affirm those convictions. We also conclude, however,
that his convictions for both Class D felony battery and Class A misdemeanor
battery violate Indiana’s Double Jeopardy Clause. We therefore reverse Wells’
conviction for Class A misdemeanor battery and remand with instructions for
the trial court to amend the abstract of judgment accordingly. We affirm in
part, reverse in part, and remand.
Facts and Procedural History
[2] In late June or early July 2013, Wells engaged in an argument with his
significant other, T.H., in the home they shared. Wells and T.H. were not
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016 Page 2 of 10
married, but they were involved in a long-term romantic relationship and have
three children together. The argument escalated when Wells punched T.H.
with a closed fist and pulled her upstairs to their eldest child’s bedroom. Wells
then retrieved a small handgun; he put it in T.H.’s mouth and held it to T.H.’s
head while threatening her. She begged him not to shoot and to think about his
kids. He eventually stopped.
[3] In early September 2013, Wells and T.H. again argued in their home. Wells
struck T.H. with her phone and punched her “a few times,” hitting her left eye,
arms, and legs. Transcript at 145. The argument continued into the kitchen,
where Wells pulled out a knife and put it on the counter. He became apologetic
and asked T.H. to perform oral sex to make him feel better, which she did.
[4] On September 18, 2013, Wells and T.H. once again argued in their home. This
time, the couple argued in their bedroom, resulting in Wells grabbing T.H.,
throwing her to the opposite side of the bed, punching her, and choking her first
with both hands and then by applying pressure to her neck with his arm or leg
as she laid on her back on the bed. Once Wells stopped attacking T.H., he told
her she needed to do something to make him feel better and wanted to have sex
with her. She said no, but she was scared and afraid he would beat her again,
so she eventually “went along with it.” Id. at 199. He at least partially tore her
underwear off and had sexual intercourse with her.
[5] The next morning T.H. dropped her eldest son off at school and called the
police. She met detectives at the police station and told them about Wells’
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016 Page 3 of 10
abuse. He was arrested at their home. T.H. agreed to go to the hospital, where
she consented to a sexual assault examination. The forensic nurse examiner
observed a right eye injury, bruising on her left eye, abrasions and swelling on
her neck, bruising behind her ear, and injuries to her shoulders and right arm.
Lab analysis of the sex crimes kit performed during the sexual assault
examination revealed the presence of Wells’ DNA inside T.H.’s vagina.
[6] After looking up Wells’ charges online, T.H. unsuccessfully attempted to have
the “sexual charges” dropped by contacting detectives and writing a letter to the
court. Id. at 188. During this time, Wells violated a no contact order by
repeatedly calling T.H. from jail. The State amended the charging information
to add thirteen counts of invasion of privacy based on this contact. Wells was
ultimately convicted of criminal deviate conduct, a Class B felony; rape, a Class
B felony; battery, a Class C felony; battery, a Class D felony; domestic battery,
a Class D felony; strangulation, a Class D felony; pointing a firearm, a Class D
felony; three counts of battery, all Class A misdemeanors; and thirteen counts
of invasion of privacy, all Class A misdemeanors.
[7] At sentencing, the trial court merged a Class A misdemeanor battery, the Class
D felony domestic battery, and the Class D felony pointing a firearm
convictions with other convictions and sentenced Wells on the remaining
counts to a total of twenty-six years executed, with twenty years to be served in
the Department of Correction and six years to be served in community
corrections. Wells now appeals.
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016 Page 4 of 10
Discussion and Decision
I. Sufficiency of Evidence
A. Standard of Review
[8] “When reviewing the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
verdict.” Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct. App. 2013), trans. denied.
We will not reweigh the evidence or assess the credibility of the witnesses.
Glenn v. State, 999 N.E.2d 859, 861 (Ind. Ct. App. 2013). “The conviction will
be affirmed unless no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt.” Id. (citation and quotation marks
omitted).
B. Criminal Deviate Conduct and Rape
[9] “A person who knowingly or intentionally causes another person to perform or
submit to deviate sexual conduct when . . . the other person is compelled by
force or imminent threat of force . . . commits criminal deviate conduct, a Class
B felony.” Ind. Code § 35-42-4-2(a)(1) (2013). “[A] person who knowingly or
intentionally has sexual intercourse with a member of the opposite sex when
. . . the other person is compelled by force or imminent threat of force . . .
commits rape, a Class B felony.” Ind. Code § 35-42-4-1(a)(1) (2013).
[10] Wells contends no reasonable inference could be drawn from T.H’s testimony
that she was forced to perform oral sex during the early September episode,
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016 Page 5 of 10
which is the basis for the criminal deviate conduct conviction, nor that she was
forced to have sexual intercourse on September 18, which is the basis for the
rape conviction. He argues T.H. was not compelled by force or imminent
threat of force because both sex acts occurred after the physical attacks ended.
Although T.H.’s testimony was equivocal about her consent to perform oral sex
and have sexual intercourse, we conclude she was compelled to consent and
perform under threat of force in both instances. Our supreme court has stated,
“Force or threat of force may be shown even without evidence of the attacker’s
oral statement of intent or willingness to use a weapon and cause injury, if from
the circumstances it is reasonable to infer the attacker was willing to do so.”
Smith v. State, 500 N.E.2d 190, 192 (Ind. 1986) (quoting Lewis v. State, 440
N.E.2d 1125, 1127 (Ind. 1982)). Wells did not verbally threaten physical force
against T.H. if she refused to engage in sexual acts with him; nonetheless, a
threat can be reasonably inferred from the circumstances.
[11] During the early September incident, Wells punched T.H. and struck her with a
phone. When she ran to the kitchen, he followed and placed a knife on the
countertop. Although he had begun apologizing, the knife was in full view
when he requested and received oral sex from T.H. On September 18, Wells
strangled T.H. until she nearly lost consciousness and also gave her a black eye.
He requested intercourse and she initially answered “no,” but then he ripped off
her underwear and had intercourse with her anyway. In both cases, it is
reasonable to infer Wells was willing to exert force against T.H., given he had
already done so.
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016 Page 6 of 10
[12] In Smith, 500 N.E.2d at 191, the defendant held a knife in his hand while raping
the victim. Although he did not explicitly threaten to use the knife against the
victim, the circumstances were sufficient to show that the victim was not acting
upon her own free will; rather, it was reasonable to infer she was acting under
threat of violence. Wells’ willingness to commit violence against T.H. is akin to
the perpetrator in Smith holding a knife throughout the assault. In both cases,
the victims knew that the defendants were readily able to commit violence
against them if they resisted. We therefore conclude the jury could reasonably
infer that T.H. was compelled by the imminent threat of force to agree to Wells’
sexual requests.
[13] Wells also argues he did not have the necessary mens rea for the commission of
criminal deviate conduct and rape against T.H. For both offenses, a person
must “knowingly or intentionally” engage the victim in specified sexual
conduct when “the other person is compelled by force or imminent threat of
force.” Ind. Code §§ 35-42-4-2(a), 35-42-4-1(a). “A person engages in conduct
‘knowingly’ if, when he engages in the conduct, he is aware of a high
probability that he is doing so.” Ind. Code § 35-41-2-2(b). “Knowledge, like
intent, is a mental state of the actor; therefore, the trier of fact must resort to
reasonable inferences based on the examination of the surrounding
circumstances to reasonably infer its existence.” Slone v. State, 912 N.E.2d 875,
880 (Ind. Ct. App. 2009), trans. denied.
[14] Wells argues because he asked, rather than demanded, that T.H. engage in the
sexual acts, and she did not verbally refuse his requests or otherwise rebuff him,
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016 Page 7 of 10
he “could not have had an awareness that he was compelling her by force.”
Brief of Appellant at 25. Yet, the evidence shows that immediately prior to the
first incident, Wells had been angrily hitting and punching T.H., causing her
pain and giving her a black eye. He placed a knife in plain view before
requesting T.H. give him oral sex. Similarly, prior to the second incident,
Wells angrily threw T.H. across their bed, hit her, and then put his hands
around her neck and squeezed until she became lightheaded and had difficulty
breathing. When Wells indicated he wanted to have sex with her, T.H. said no
and asked why he was doing this. Wells told her she “needed to do something
to make him feel better,” tr. at 162, and she ultimately submitted. It is
reasonable to infer from these surrounding circumstances that Wells was aware
T.H. was not participating willingly but only because she feared further
violence.
II. Double Jeopardy
[15] Wells contends his convictions for Class D felony battery (Count VIII) and
Class A misdemeanor battery (Count X) violate Indiana’s Double Jeopardy
Clause, which provides, “No person shall be put in jeopardy twice for the same
offense.” Ind. Const. art. 1, § 14. We review whether multiple convictions
violate the Double Jeopardy Clause de novo. Jones v. State, 976 N.E.2d 1271,
1275 (Ind. Ct. App. 2012), trans. denied.
[16] Specifically, Wells argues these convictions violate the actual evidence test:
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016 Page 8 of 10
To show that two challenged offenses constitute the “same
offense” in a claim of double jeopardy, a defendant must
demonstrate a reasonable possibility that the evidentiary facts
used by the fact-finder to establish the essential elements of one
offense may also have been used to establish the essential
elements of a second challenged offense.
Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999).
[17] We conclude, and the State concedes, there is a reasonable possibility the jury
considered the same evidentiary facts to establish the essential elements of
misdemeanor battery and felony battery. Both charges alleged Wells touched
T.H. in a rude, insolent, or angry manner that resulted in pain and/or bruising
on September 18.1 Both convictions were based on T.H.’s testimony that Wells
hit or punched her with his hands on that night. The State’s closing argument
to the jury likewise failed to factually distinguish the two charges. See C.H. v.
State, 15 N.E.3d 1086, 1094 (Ind. Ct. App. 2014) (“On appeal, in determining
the facts used by the fact-finder, it is appropriate for a reviewing court to
examine the evidence presented, the charging information, arguments of
counsel, and any other factors that may have guided the fact-finder in making a
decision.”), trans. denied. As such, there is a reasonable possibility that the jury
considered the same evidence to convict Wells on each charge. We therefore
remand with instructions to vacate the lesser charge of misdemeanor battery.
1
The Class D felony charge additionally alleged that T.H. was a family or household member and that Wells
committed the act in the presence of children under the age of sixteen. Ind. Code § 35-42-2-1(a)(2)(M)
(2013).
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016 Page 9 of 10
See Richardson, 717 N.E.2d at 55 (remedying a double jeopardy violation by
vacating the conviction with “less severe penal consequences”).
Conclusion
[18] There was sufficient evidence to support Wells’ criminal deviate conduct and
rape convictions, and we affirm those convictions. However, Wells’
convictions for both misdemeanor battery and felony battery arising out of a
single incident violate Indiana’s Double Jeopardy Clause. We therefore reverse
and remand with instructions for the trial court to vacate Wells’ conviction for
misdemeanor battery and amend the abstract of judgment accordingly.
[19] Affirmed in part, reversed in part, and remanded.
Barnes, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-604 | April 14, 2016 Page 10 of 10
Dejuan Wells v. State of Indiana (mem. dec.)
Combined Opinion