MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 07 2019, 9:03 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Glen E. Koch II Curtis T. Hill, Jr.
Boren, Oliver & Coffey, LLP Attorney General of Indiana
Martinsville, Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Rickey D. Haines, February 7, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2113
v. Appeal from the Brown Circuit
Court
State of Indiana, The Honorable Judith A. Stewart
Appellee-Plaintiff Trial Court Cause No.
07C01-1512-F1-373
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2113 | February 7, 2019 Page 1 of 9
[1] Rickey D. Haines appeals his fourteen-year sentence on remand for Level 3
felony criminal confinement. 1 Haines argues the trial court abused its
discretion during his resentencing by considering convictions he obtained after
his original sentencing. Because Haines invited any alleged error by arguing the
court could consider his testimony about his behavior while incarcerated
between his first and second sentencing hearings, he cannot raise this alleged
error on appeal. We affirm.
Facts and Procedural History
[2] When Haines appealed following his first sentencing, we set out the facts as
follows:
As of December 2015, Haines and Jennifer Wagers (“Wagers”)
had been in an on-again/off-again relationship for approximately
fourteen years, and they had two minor children together, J.H.
and G.H. (together, “Children”). On December 8, 2015, Wagers
went to Haines’s residence to make dinner and pick up their
Children, ages nine and five years old at the time, who would be
getting off the school bus there. When Wagers arrived, she went
inside to begin making dinner. At some point, Wagers went into
the bathroom, and, shortly thereafter, Haines came in and closed
the door behind him. Haines demanded that Wagers hand over
her cell phone to him, because he wanted to search her phone for
contact with another man, and the two argued. Wagers would
not unlock her phone, and Haines was yelling at her. He told her
to “assume the position,” Wagers got on the floor on her knees,
and Haines tried to drown her in the bathtub. She ended up on
1
Ind. Code § 35-42-3-3(a)(2) (2014).
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her stomach on the floor of the bathroom, and he had sex with
her, which she testified was non-consensual. G.H. knocked on
the bathroom door, and Haines told him go away. G.H. heard
his mother crying and saying “stop,” and he ran to summon
Haines’s mother (“Grandmother”), who lived nearby.
Grandmother came to Haines’s residence and knocked on the
closed bathroom door, and Haines opened the door. Wagers
asked Grandmother to stay, but she left the residence.
Eventually, Wagers escaped the bathroom and ran out of the
residence, and Haines ran out another door, still arguing about
the phone. Haines cornered Wagers on the porch and would not
let her down the stairs to leave. He punched her in the face with
his fist. As Wagers sat on the porch, Haines put Wagers in “a
choke hold,” saying “good night bitch” as she struggled. The
Children came outside at some point, yelled at Haines “to stop,”
observed Haines put their mother in a choke hold, and saw him
throw a bicycle at Wagers. He told the Children to go back into
the house. Haines ripped a metal porch rail out of the porch and
threatened to hit Wagers and break her kneecap. He then swung
the metal pole at Wagers, striking her on the shin, ripping her
pants, lacerating her leg, and bruising her foot. Wagers agreed to
unlock her phone, and Haines looked through it. He saw
messages to other people and was angry, and he ordered her to
go back into the residence, which she did.
Inside, he made Wagers get his shotgun and give it to him, and
he sent the Children to bed. He told Wagers to go to the
bedroom, and he followed, bringing the shotgun and setting it in
a corner. He told her to remove her pants and lay on her
stomach, which she did, and he had intercourse with her, and he
directed her to perform oral sex. During this time, Haines told
Wagers that he was recording “everything” on her phone,
indicating he was going to share it on social media “to show
everyone how much of a whore [she] was and how much of a
bad mother [she] was.” Haines eventually went to sleep, but
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Wagers did not leave because she could not walk and was afraid
he would catch her. Sometime in the morning, Wagers regained
custody of her phone, finding it on Haines’s dresser, and after he
left for work, Wagers called her sister, Jamie Wagers (“Jamie”)
and asked her to come for her. After Wagers had left Haines’s
residence, she called the Brown County Sheriff’s Department to
report what Haines had done.
Deputy Joshua Stargell (“Deputy Stargell”) arrived, and Wagers
told him that she had been battered the previous night by Haines.
He observed a large laceration on her left shin, redness around
her nose and neck. She showed the officer the metal pole that
Haines used to batter her; it was about four feet long and had a
bolt sticking out of it. She also told him that she was strangled
and punched in the nose. Wagers told Chief Deputy Michael
Morris (“Chief Deputy Morris”) that Haines had said that he was
recording sex acts on her phone, so Chief Deputy Morris
collected Wagers’s phone as evidence.
*****
On December 11, 2015, the State charged Haines with Level 1
felony rape, and it subsequently amended the information to add
charges of Level 3 felony criminal confinement, Level 6 felony
domestic battery, Level 6 felony strangulation, and Class A
misdemeanor possession of a firearm by a domestic batterer. The
State also alleged that Haines was a habitual offender.
*****
The jury found Haines not guilty of the rape charge and guilty of
the remaining counts. Haines waived a jury trial as to the
habitual offender charge, and, after a hearing, the trial court
adjudicated him to be a habitual offender. . . . On May 1, 2017,
the trial court . . . imposed a nine-year sentence on the criminal
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confinement conviction, enhanced by six years for the habitual
offender adjudication, two and one-half years on the domestic
battery conviction, and one year on the firearm possession
conviction, with the sentences to run concurrently for an
aggregate sentence of fifteen years. The court subsequently
vacated the conviction for Level 6 felony strangulation on double
jeopardy grounds.
Haines v. State, No. 07A01-1708-CR-1994 at *1-*5 (Ind. Ct. App. March 14,
2018).
[3] On appeal, Haines challenged his convictions and sentence. We affirmed
Haines’ convictions, id. at *10, but we vacated Haines’ habitual offender
enhancement because his prior felony convictions were Class D felonies that
had not occurred within the prior ten years. Id. at *9. We then remanded for
the trial court to resentence Haines for his criminal confinement conviction
without the habitual offender enhancement attached. Id.
[4] At the resentencing hearing, over objection from the State, Haines testified
regarding his conduct while incarcerated subsequent to the original sentencing.
The State then entered evidence of convictions that Haines acquired following
his original sentencing: Class A misdemeanor invasion of privacy, 2 Class A
misdemeanor possession of a firearm by a domestic batterer, 3 and Class B
2
Ind. Code § 35-46-1-15.1 (1) (2014).
3
Ind. Code § 35-47-4-6 (2007).
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misdemeanor criminal mischief. 4 The trial court found Haines’ criminal history
and probation violation as aggravators and Haines’ good behavior in prison and
participation with the “Suicide Companion” group as mitigators. (Tr. at 16.)
The court sentenced Haines to fourteen years for Level 3 felony criminal
confinement.
Discussion and Decision
[5] Haines argues the trial court abused its discretion by considering, as part of his
criminal history, convictions he had not acquired at the time of the original
sentencing hearing. “We initially observe that sentencing decisions rest within
the sound discretion of the trial court and are reviewed on appeal only for an
abuse of discretion.” Gleason v. State, 965 N.E.2d 702, 710 (Ind. Ct. App. 2012).
An abuse of discretion occurs if the trial court’s 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.” Anglemyer
v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind.
2007).
The trial court can abuse its discretion by: (1) issuing an
inadequate sentencing statement, (2) finding aggravating or
mitigating factors that are not supported by the record, (3)
omitting factors that are clearly supported by the record and
4
Ind. Code § 35-43-1-2 (a)(1) (2014).
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advanced for consideration, or (4) finding factors that are
improper as a matter of law.
Gleason, 965 N.E.2d at 710.
[6] Haines claims the court abused its discretion by allowing the State to present
evidence of three new convictions Haines acquired after his original sentencing
hearing. However, during the resentencing hearing, while Haines testified on
his own behalf, the following events unfolded:
Q: Now since you’ve been in prison what have you been doing
with your time?
A: I graduated a course in Seventh Day Adventism and-
[STATE]: Your Honor, if I could. I’m just gonna object to this
line of questioning, because I think it exceeds the scope of what
would have happened as far as sentence. . . sentencing would
have been concerned when he was originally sentenced.
[DEFENSE]: Your Honor if I may respond?
THE COURT: Yes.
[DEFENSE]: I believe, I’ll have to find the case that I did have
up. There was a specific case that indicated that on re-sentencing
the Court could consider an aggravating factor that took place
between the original sentencing and the re-sentencing and in that
case it was perjury of the defendant and then testifying against
the co-defendant. So, my take on that would be that if an
aggravating factor can be admitted of something that occurred
after sentencing, but prior to date of re-sentencing the same
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would go for a mitigating factor and that case was, Hole [sic] v
State, 839 NE 2nd 1250.
THE COURT: Alright. I will go ahead and allow the testimony
and [State] if you have anything in the interim since the last one
that would be admitted as well. Go ahead [Defense].
(Tr. Vol. II at 6-7.) Thus, Haines urged the trial court to admit evidence of
events that occurred between the first and second sentencing hearings.
[7] “The doctrine of invited error is grounded in estoppel. Under this doctrine, a
party may not take advantage of an error that she commits, invites, or which is
the natural consequence of her own neglect or misconduct.” Witte v. Mundy ex
rel. Mundy, 820 N.E.2d 128, 133-4 (Ind. 2005). Because Haines invited any
error that may have occurred when the court admitted evidence of convictions
Haines obtained after his first sentencing hearing, he cannot raise that issue on
appeal. See Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005) (State not allowed
to appeal error it invited during trial).
[8] Had Haines not invited the error, we cannot say the consideration of his later
convictions would have required reversal. When a trial court considers an
improper aggravator, we may nevertheless affirm the sentence if we can “say
with confidence that the trial court would have imposed the same sentence.”
Webb v. State, 941 N.E.2d 1082, 1090 (Ind. Ct. App. 2011) (affirming despite
trial court’s failure to consider guilty plea a mitigator), trans. denied. The
convictions that Haines now says the court should not have considered were
based on charges that were filed on June 18, 2015, and Haines’ original
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sentencing was on May 5, 2017, (App. Vol. II at 246), such that the trial court
had access to information about the charges at the original sentencing hearing.
The pending charges demonstrate Haines’ prior interaction with the judicial
system had not led him to live a law-abiding lifestyle and leave a negative
impression of his character. As such, we are confident the trial court would
have reached a fourteen-year sentence regardless whether those acts were
considered as pending charges or as convictions. See, e.g., Webb, 941 N.E.2d at
1090 (affirming sentence despite abuse of discretion).
Conclusion
[9] Because Haines insisted the court could consider his behavior while
incarcerated after the first sentencing, he invited any error that may have
occurred when the State introduced evidence of convictions that Haines
obtained after the first sentencing. Additionally, any error in considering
Haines’ subsequent criminal history was harmless. Accordingly, we affirm.
[10] Affirmed.
Baker, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2113 | February 7, 2019 Page 9 of 9
Rickey D. Haines v. State of Indiana (mem. dec.)
Combined Opinion