FILED
Sep 30 2016, 8:42 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
James H. Voyles Gregory F. Zoeller
Jennifer M. Lukemeyer Attorney General of Indiana
Voyles Zahn & Paul
Indianapolis, Indiana Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ricky R. House, Jr., September 30, 2016
Appellant-Defendant, Court of Appeals Case No.
65A01-1511-CR-1979
v. Appeal from the Posey Circuit
Court
State of Indiana, The Honorable James M.
Appellee-Plaintiff. Redwine, Judge
Trial Court Cause No.
65C01-1409-F1-329
Barnes, Judge.
Case Summary
[1] Ricky House appeals his convictions for three counts of Level 1 felony rape,
two counts of Level 5 felony criminal confinement, and one count each of
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Level 5 felony kidnapping, Class A misdemeanor battery resulting in bodily
injury, and Class A misdemeanor pointing a firearm. We affirm.
Issue
[2] House raises one issue, which we restate as whether the trial court properly
excluded evidence of the victim’s prior drug usage.
Facts
[3] House and his girlfriend, Kendra Tooley, lived in a trailer in Stewartsville that
did not have running water. House told Tooley that he had a fantasy about
abducting a woman and raping her.
[4] On July 9, 2014, J.L. was living in a shelter in southern Indiana. She was
walking back to the shelter in the early evening when House stopped to talk to
her. J.L. knew House and Tooley because she had previously worked with
Tooley. House asked if J.L. wanted to go with him to see Tooley, and House
agreed to bring J.L. back to the shelter before her midnight curfew. J.L. went to
House’s trailer where she smoked marijuana with House and Tooley and drank
alcohol.
[5] As J.L. was getting ready to leave so that House could return her to the shelter,
House “came at” her and placed a rag soaked with chloroform on her face. Tr.
p. 286. J.L. lost consciousness and, when she woke up, she was naked,
blindfolded, had zip ties on her wrists and ankles, and was tied “spread eagle”
on a bed. Id. at 287. House repeatedly sexually assaulted J.L. over the next
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fifty-eight days. Sometimes Tooley would hold J.L.’s head and force her to
give House oral sex. House and Tooley made J.L. wear a belt, dog collar, and
leash. About halfway through the fifty-eight days, House constructed a wooden
cage in the trailer. House and Tooley would place J.L. in the cage and lock the
door with a padlock. If J.L. did exactly what was asked of her, she would be
allowed to sit on the couch and watch TV. Either House or Tooley was with
J.L. at all times. When J.L. screamed and struggled, House told her “to shut up
or he would shoot [her], kill [her].” Id. at 289. House and Tooley repeatedly
threatened to shoot or “sell” J.L. Id. at 291. House burned J.L.’s purse and
other possessions. According to J.L., House and Tooley regularly consumed
marijuana and methamphetamine during this time period.
[6] On September 4, 2014, Ronald Higgs came to the trailer to visit Tooley, who
was his ex-wife. Tooley was having back pain and had asked Higgs to bring her
painkillers. When Higgs arrived, Tooley told him that they were keeping a
woman in a cage in the next room. House gave J.L. a t-shirt to wear and
brought her out of the cage. Higgs did not recognize J.L., who “looked like a
whipped dog,” was wearing a dog collar, had a rope hanging down her back,
was disheveled, and “had a slight odor to her.” Id. at 398. Tooley told J.L.,
“The rules don’t change because [Higgs] is here.” Id. at 439. Eventually, J.L.
was able to tell Higgs that she “didn’t want to be there” and that “they wouldn’t
let [her] leave.” Id. at 320. On September 6, 2014, Higgs was leaving and gave
House and Tooley $100 and said that he was taking J.L. with him. House and
Tooley refused to let J.L. leave with Higgs and said, “She is not going
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nowhere.” Id. at 421. Higgs and House got into a physical altercation, while
Tooley grabbed the dog collar and tried dragging J.L. back to the cage. House
retrieved a gun, which he pointed at Higgs. Higgs ultimately convinced House
that J.L. was leaving with him. Higgs took J.L. to his apartment in Evansville
where she showered, ate, and called her mother. J.L.’s mother contacted the
police, who had been looking for J.L.
[7] The State charged House with sixteen counts: (1) Level 1 felony rape; (2) Level
1 felony rape; (3) Level 1 felony rape; (4) Level 1 felony rape; (5) Level 1 felony
rape; (6) Level 1 felony rape; (7) Level 1 felony conspiracy to commit rape; (8)
Level 3 felony criminal confinement; (9) Level 5 felony criminal confinement;
(10) Level 3 felony criminal confinement; (11) Level 5 felony criminal
confinement; (12) Level 3 felony kidnapping; (13) Level 5 felony kidnapping;
(14) Level 3 felony conspiracy to commit criminal confinement; (15) Class A
misdemeanor battery resulting in bodily injury; (16) Class A misdemeanor
pointing a firearm.
[8] The State filed a motion in limine to prevent House from presenting any
evidence of prior drug or alcohol usage by the State’s witnesses. The trial court
granted the motion “without objection” by House and directed that, if House
intended to offer any such evidence, he would first seek permission of the trial
court outside of the presence of the jury. App. V. II. p. 10. At the jury trial,
J.L. testified regarding her use of marijuana, alcohol, methamphetamine, and
Valium during her captivity. Regarding the methamphetamine, she testified
that she used it twice, once by smoking it and once by injecting it. She testified
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that she injected it because “I have used drugs in the past and I have used it like
that before” and injecting the drug can increase the effect. Tr. p. 367. House
did not seek to introduce evidence concerning J.L.’s prior drug usage during her
testimony. At the close of his case-in-chief, House recalled J.L. to make an
offer of proof regarding her prior drug usage. The jury found House guilty as
charged.
[9] The trial court later vacated the verdicts on Counts 1, 3, 5, 7, 8, 10, 12, and 14,
leaving judgments for Count 2 (Level 1 felony rape), Count 4 (Level 1 felony
rape), Count 6 (Level 1 felony rape), Count 9 (Level 5 felony criminal
confinement), Count 11 (Level 5 felony criminal confinement), Count 13 (Level
5 felony kidnapping), Count 15 (Class A misdemeanor battery resulting in
bodily injury), and Count 16 (Class A misdemeanor pointing a firearm). The
trial court sentenced House to thirty years on each of the Level 1 felony
convictions, three years on each of the Level 5 felony convictions, and one year
on each of the Class A misdemeanor convictions. The trial court ordered the
sentences for Counts 2, 4, 6, and 13 to be consecutive and the remainder of the
sentences to be served concurrently for an aggregate sentence of ninety-three
years. House now appeals.
Analysis
[10] House argues that the trial court abused its discretion by excluding evidence of
J.L.’s prior drug usage. The exclusion of evidence rests within the sound
discretion of the trial court, and we review the exclusion of evidence only for an
abuse of discretion. Griffith v. State, 31 N.E.3d 965, 969 (Ind. 2015). Even if a
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trial court errs by excluding evidence, “we will not overturn the conviction if
the error is harmless.” Id. An error is harmless if “the probable impact of the
evidence upon the jury is sufficiently minor so as not to affect a party’s
substantial rights.” Id.; see Ind. Trial Rule 61.
[11] House argues that the trial court should have admitted evidence of J.L.’s prior
drug use because “the addiction evidence support[ed] House’s claim that
[J.L.’s] usage, and thus other conduct, was voluntary while at the trailer” and
“it also explained her motive for being and staying at the trailer.” Appellant’s
Br. p. 13. According to House, the addiction evidence created an “inference of
voluntariness.” Id. at 14.
[12] The State first responds that the issue is waived because House failed to object
to the motion in limine and never asked the trial court to revisit the ruling or to
admit the evidence. A motion in limine is appropriate to determine the
admissibility of evidence outside of the jury’s hearing in order to avoid
prejudice. Miller v. State, 716 N.E.2d 367, 370 (Ind. 1999). In order to preserve
an error for appellate review, however, a party must do more than challenge the
ruling on a motion in limine. Id. The evidence must be offered at trial to give
the trial court an opportunity to rule on its admissibility at that time. Id. A
party traditionally makes an offer to prove after the trial court has sustained an
objection to the admission of the party’s evidence. Harman v. State, 4 N.E.3d
209, 216 (Ind. Ct. App. 2014), trans. denied.
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[13] Here, House did not object to the motion in limine. During J.L.’s testimony, he
did not attempt to question her regarding her prior drug usage and did not raise
the issue with the trial court. At the end of presenting his case-in-chief, House
made an offer of proof regarding J.L.’s prior drug usage. Before making the
offer of proof, House’s counsel said, “We expect your ruling will be it is not
coming in.” Tr. p. 1021. The trial court said, “It is not coming in,” and
House’s counsel commented, “I may make such a compelling offer, Your
Honor.” Id. Trial counsel then stated, “Well, maybe it is coming in.” Id. J.L.
later testified outside the presence of the jury that her substance abuse issues
with methamphetamine began in 2005, that she had been to rehab on three
occasions, and that she had relapsed after each rehab. House did not revisit the
admissibility of the evidence with the trial court, and the trial court never
commented on its admissibility. We question whether House used the proper
procedure to have the trial court consider the admissibility of the evidence of
J.L.’s prior drug usage and make an offer of proof. However, waiver
notwithstanding, the trial court did not abuse its discretion by excluding the
evidence.
[14] Indiana Evidence Rule 402 provides that relevant evidence is generally
admissible. Under Indiana Evidence Rule 401, “[e]vidence is relevant if (a) it
has any tendency to make a fact more or less probable than it would be without
the evidence; and (b) the fact is of consequence in determining the action.” Our
supreme court has “‘consistently upheld decisions of trial courts excluding
evidence of a witness’ past drug use as irrelevant.’” Jenkins v. State, 729 N.E.2d
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147, 149 (Ind. 2000) (quoting Williams v. State, 681 N.E.2d 195, 199 (Ind.
1997)).
A witness’s drug abuse would be pertinent only as to the
witness’s ability to recall events on the dates in question had he
been using drugs at that time, or if the witness was on drugs at
trial, or if drug abuse was so extensive as to impair the witness’s
mind.
Crocker v. State, 563 N.E.2d 617, 623 (Ind. Ct. App. 1990) (citing Stonebraker v.
State, 505 N.E.2d 55, 59 (1987)), trans. denied; see also Palmer v. State, 654 N.E.2d
844, 847-48 (Ind. Ct. App. 1995).
[15] Our supreme court addressed a similar argument in Jenkins. There, the
defendant, who was accused of rape, criminal deviate conduct, criminal
confinement, and being an habitual offender, alleged that his sexual contact
with the victim was consensual because she attempted to purchase marijuana
from him, they smoked marijuana together, and they had sexual intercourse.
The victim testified that the defendant entered her car while she was stopped at
a traffic light and then sexually assaulted her. Our supreme court held that the
victim’s prior marijuana usage was not relevant to whether she was sexually
assaulted by the defendant. “If relevant at all to the highly collateral issue of
whether she purchased drugs from [the defendant], it is clearly outweighed by
the danger of unfair prejudice.” Jenkins, 729 N.E.2d at 149. Consequently, the
court determined that the trial court did not abuse its discretion by limiting the
defendant’s cross-examination of the victim regarding her prior drug usage.
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[16] Here, J.L. testified regarding her drug usage during the time of her captivity.
There is no indication that her prior drug usage was so extensive as to impair
her mind. Further, it is not relevant as to whether J.L. was held against her will
and repeatedly sexually assaulted. We agree with the State that admission of
this evidence was an “attempt to smear the victim’s character by labeling her as
a drug addict who was willing to abandon her family and submit to degrading
and humiliating sexual assaults and to be treated like an animal so long as she
received methamphetamine.” Appellee’s Br. p. 19. The trial court properly
excluded the evidence of J.L.’s prior drug usage.
[17] Moreover, even if the trial court erred by excluding the evidence, any error was
harmless. When J.L. testified regarding her methamphetamine usage in
captivity, she testified that she used it twice, once by smoking it and once by
injecting it. She testified that she injected it because “I have used drugs in the
past and I have used it like that before” and injecting the drug can increase the
effect. Tr. p. 367. Consequently, the jury was aware of J.L.’s prior usage of
methamphetamine. J.L. consistently testified that she did not consent to the
sexual assaults and that she did not stay at House and Tooley’s trailer
voluntarily. Tooley, who was called as a defense witness, also testified that
J.L.’s captivity was not consensual and that “she was being held against her
will.” Id. at 946. The evidence was overwhelming that J.L. did not stay at the
trailer voluntarily and did not consent to the sexual assaults. Any error in the
exclusion of evidence regarding her prior drug usage did not affect House’s
substantial rights and was harmless.
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Conclusion
[18] The trial court properly excluded evidence of J.L.’s prior drug usage. Even if
the trial court erred by excluding the evidence, any error was harmless. We
affirm.
[19] Affirmed.
Riley, J., and Bailey, J., concur.
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