ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Robert W. Hammerle Steve Carter
Joseph M. Cleary Attorney General of Indiana
Indianapolis, Indiana
Timothy W. Beam
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
BRIAN RINGHAM, )
)
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 49S02-0112-CR-642
v. )
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 49A02-0009-CR-577
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Alex Murphy, Judge Pro Tempore
Cause No. 49G01-9907-CF-122609
__________________________________________________________________
ON PETITION FOR TRANSFER
__________________________________________________________________
May 29, 2002
BOEHM, Justice.
Brian Ringham was convicted of rape as a Class A felony. The Court
of Appeals reversed his conviction and remanded the cause for a new trial
because (1) the Master Commissioner improperly presided over Ringham’s
trial, and (2) the trial court committed fundamental error when it failed
to instruct the jury that the State had the burden of disproving Ringham’s
mistake of fact defense. We affirm the judgment of the trial court.
Factual and Procedural Background
Ringham was introduced to the victim, C.C., at a private party at a
nightclub in downtown Indianapolis. Ringham worked at the club, but was
off duty that evening. After C.C. and Ringham talked and danced for about
an hour, Ringham offered a tour of the closed areas of the club and C.C.
agreed. Ringham spoke with an on-duty employee, then led C.C. up the
stairway. After exploring the second floor where a new bar was being
constructed, Ringham and C.C. continued to the fourth floor, where a
variety of construction materials and discarded building fixtures were
stored.
Ringham kissed C.C., who initially did not object to his advances, but
resisted when Ringham raised her skirt. After forcibly restraining C.C.
despite her repeated requests to return to the first floor, ultimately
Ringham raped C.C., at one point placing his arm over the top of her head
and threatening to break her neck if she was not quiet. When Ringham
finally released C.C., she left the club by a back door, ran to her car and
immediately drove to a hospital where she reported the rape.
Indianapolis Police Detective Lawrence Cahill was dispatched to the
hospital and interviewed C.C. there. Later the next day, Cahill went to
the nightclub and interviewed Ringham. Ringham voluntarily gave a
statement, claiming that he and a woman whose name he could not remember
had engaged in consensual intercourse at the club the night before.
Ringham was subsequently charged with one count of rape as a Class A
felony.
On April 17, 2000, Judge Tanya Walton Pratt handled some preliminary
matters prior to the commencement of Ringham’s trial. A brief recess was
ordered, and when the court reconvened Judge Pratt was occupied by
administrative duties related to an upcoming death penalty trial. Judge
Pratt executed an “Appointment of Attorney as Judge Pro Tempore” form to
permit Master Commissioner Alex Murphy to preside over the trial. The
papers appointing Judge Murphy were “placed” in the Marion County Clerk’s
order book, but were not included in Ringham’s court file.[1] The entry in
the Chronological Case Summary (“CCS”) for April 17 described the “JUDGE”
as “44214 PRATT TANYA W” and the entry for April 18 described the “JUDGE”
as “49420 MURPHY ALEX TYPE: Pro Tem.”
A preliminary hearing was convened on April 17, and Judge Murphy took
the bench, stating that the “commissioner” was empowered to continue the
proceedings. Ringham objected, stating that earlier rulings in the case by
Judge Murphy as Master Commissioner led him to conclude that Judge Murphy
was biased against him. Ringham asked “that the regular sitting judge be
the individual to hear the case.” Judge Murphy overruled Ringham’s
objection and presided over the remainder of the preliminary hearing and
the trial.
At the conclusion of the trial, Ringham tendered a mistake of fact
jury instruction. Without objection from Ringham, the trial court modified
the instruction to mirror Indiana Code section 35-41-3-7, and instructed
the jury that “[i]t is a defense that the person who engaged in the
prohibited conduct was reasonably mistaken about a matter of fact if the
mistake negates the culpability required for the commission of the
offense.” The trial court separately instructed the jury on the elements
of the crime, that the State was required to prove the elements of the
crime, including intent, beyond a reasonable doubt, and that if the State
failed to do so the jury should find Ringham not guilty. The court also
instructed the jury that Ringham was not required “to present any evidence
to prove his innocence or to prove or explain anything.” The jury found
Ringham guilty, and at a subsequent hearing Judge Murphy sentenced Ringham
to the presumptive sentence of thirty years, with ten years suspended and
probation for five years.
Ringham appealed, contending that Judge Murphy (1) improperly presided
over the trial, (2) erred in admitting C.C.’s prior consistent statement,
and (3) committed fundamental error by failing to instruct the jury that
the State had the burden of disproving Ringham’s mistake of fact defense.
In support of his argument that Judge Murphy improperly presided over the
trial, Ringham filed the record of proceedings (now known as the Record on
Appeal) from the trial court, which did not contain the papers appointing
Judge Murphy. The State requested and received permission to file a
supplemental record containing the appointment papers. Ringham asked the
Court of Appeals to reconsider the grant of the State’s request, and
because of the confusion over Judge Murphy’s appointment, the Court of
Appeals remanded to the trial court to make findings on the propriety of
the appointment. Judge Pratt presided over an evidentiary hearing and
concluded that Judge Murphy had been validly appointed as a judge pro
tempore. Ringham renewed his appeal and the Court of Appeals reversed his
conviction, holding that Judge Murphy had improperly presided over the
trial. Ringham v. State, 753 N.E.2d 29, 34 (Ind. Ct. App. 2001). The
court held that because Judge Murphy stated he was sitting as
“commissioner”—rather than as judge pro tempore—and because the papers
appointing him were not notarized, file stamped and recorded in the trial
court’s CCS for April 17, on that date Judge Murphy was presiding not as a
properly appointed judge pro tempore, but in the capacity of Master
Commissioner. Id. Accordingly, when Ringham objected, Judge Murphy was
required by Indiana Code sections 33-5.1-2-11(e) and 27(d) to transfer the
proceedings back to Judge Pratt. Id. at 34-35. The Court of Appeals also
held that the trial court committed fundamental error when it failed to
instruct the jury that the State had the burden of disproving Ringham’s
mistake of fact defense. Id. at 38. This Court granted transfer.
I. Appointment of the Judge Pro Tempore
The State argues that the Court of Appeals erroneously overruled Judge
Pratt’s finding that Judge Murphy was validly appointed judge pro tempore,
and that in any case Ringham waived the issue because he objected to Judge
Murphy on the basis of bias, not because of any flaw in Murphy’s
appointment. We do not agree that the issued was waived. The State is
correct that failure to object at trial to a judge pro tempore’s authority
to preside over the proceedings generally waives the issue for appellate
review. Coleman v. State, 694 N.E.2d 269, 277 (Ind. 1998); Floyd v. State,
650 N.E.2d 28, 32 (Ind. 1994). It is also true that a litigant may not
raise one ground for objection at trial and a different ground for
objection on appeal. Lehman v. State, 730 N.E.2d 701, 703 (Ind. 2000).
However, in this case Judge Murphy stated that he was acting as a
“commissioner,” rather than judge pro tempore, and at the time of his
objection Ringham had no means of knowing that Judge Murphy was sitting as
judge pro tempore. An issue cannot be waived before it is presented on the
record. See Smith v. Convenience Store Distrib. Co., 583 N.E.2d 735, 739
(Ind. 1992) (error arising from trial judge’s ex parte communication with
jury not waived by plaintiff’s failure to object prior to verdict where
record did not show that plaintiff had knowledge of communication prior to
verdict).
Indiana Code section 33-5.1-2-27(d) provides: “A party to a superior
court proceeding that has been assigned to a magistrate . . . may request
that an elected judge . . . preside over the proceeding instead of the
magistrate . . . . Upon a request made . . . by either party, the
magistrate . . . shall transfer the proceeding back to the superior court
judge.” Ringham contends that, if Judge Murphy was sitting as a
commissioner, this section required him to transfer the proceedings back to
Judge Pratt when Ringham objected to his presiding. We need not resolve
this claim because we do not agree that Judge Murphy was sitting as a
commissioner. In the hearing on remand Judge Pratt entered findings of
fact, including a finding that Appointment of Attorney as Judge Pro Tempore
papers were executed and placed, “[a]s done in the regular course of
business,” in the Marion County Clerk’s order book. The court concluded as
a matter of law that although the deputy clerk failed to include these
papers in Ringham’s record of proceedings, file stamp them, and record them
in the trial court’s CCS on April 17, the papers were nevertheless
“properly executed and were intended to be in defendant’s record of
proceedings,” and that accordingly Judge Murphy was validly appointed. The
trial court transmitted its findings of fact and conclusion of law, along
with the appointment papers, to the Court of Appeals, which added them to
the Record on Appeal.
The Court of Appeals concluded that because Judge Murphy stated he was
sitting as “commissioner” rather than as judge pro tempore, and because the
papers appointing him were not notarized, file stamped and recorded in the
trial court’s CCS for April 17, on that date Judge Murphy was presiding not
as a properly appointed judge pro tempore, but in the capacity of Master
Commissioner. Ringham, 753 N.E.2d at 34. Trial Rule 63(E), which governs
the appointment of a judge pro tempore, states in pertinent part that “[a]
judge who is unable to attend and preside at his court for any cause may
appoint in writing a judge pro tempore to conduct the business of this
court during his absence. The written appointment shall be entered in the
records of the court.” Although we agree that notarizing, file stamping,
and contemporaneously noting appointment papers in the CCS is desirable and
would minimize the risk of the type of confusion that arose in this case,
we do not believe reversible error occurred by reason of these
irregularities. Although Rule 63(E) requires the written appointment to be
entered of record, there is no explicit requirement as to the timing of
that entry. Judge Pratt found that the appointment was in fact made on
April 17, and that finding is not clearly erroneous. Indeed, it seems
clearly correct.
Here, the propriety of Judge Murphy’s appointment did not become an
issue until Ringham’s initial appeal. When the Court of Appeals realized
that the Record on Appeal was incomplete, it remanded to the trial court
for findings. The trial court held an evidentiary hearing, then
transmitted its findings of fact and conclusion of law, along with the
appointment papers, to the Court of Appeals, which added them to the Record
on Appeal. This is exactly what Indiana Appellate Rule 32 requires.[2]
Under these circumstances, supplementing the record pursuant to Appellate
Rule 32 was sufficient to establish compliance with Trial Rule 63(E).
Finally, although Judge Murphy referred to himself as “commissioner” when
he explained Judge Pratt’s absence to the parties, a judge’s status is
determined by an examination of the record, not the judge’s self-
description. Dearman v. State, 632 N.E.2d 1156, 1159 (Ind. Ct. App. 1994),
trans. denied. As explained above, the trial court record, as
supplemented, shows that Judge Murphy was validly appointed judge pro
tempore.
II. Jury Instructions
Ringham tendered a mistake of fact jury instruction. Without
objection from Ringham, the trial court modified the instruction to mirror
Indiana Code section 35-41-3-7, and instructed the jury that “[i]t is a
defense that the person who engaged in the prohibited conduct was
reasonably mistaken about a matter of fact if the mistake negates the
culpability required for the commission of the offense.” The trial court
separately instructed the jury on the elements of the crime, that the State
was required to prove the elements of the crime, including intent, beyond a
reasonable doubt, and that if the State failed to do so the jury should
find Ringham not guilty. The court also instructed the jury that Ringham
was not required “to present any evidence to prove his innocence or to
prove or explain anything.” On appeal, Ringham contended the trial court
committed fundamental error when it failed to instruct the jury that the
State had the burden of disproving Ringham’s mistake of fact defense. The
Court of Appeals agreed, because “[w]ithout such an instruction the jury
was free to believe that the State had no burden.” Ringham, 753 N.E.2d at
38. We do not agree.
It is true that the State retains the ultimate burden of disproving a
mistake of fact defense beyond a reasonable doubt. Nordstrom v. State, 627
N.E.2d 1380, 1383 (Ind. Ct. App. 1994), trans. denied. Nevertheless, when
this Court considers a claim of fundamental error, we look to the jury
instructions as a whole to determine if they were adequate. Turner v.
State, 682 N.E.2d 491, 497 (Ind. 1997). We addressed a factually similar
issue in Harlan v. State, 479 N.E.2d 569 (Ind. 1985). There, the trial
court refused to instruct the jury that the State had the burden of
disproving the defendant’s claim of self-defense. Id. at 571. We held
that when the jury was instructed on the State’s burden to prove all the
elements of the crime beyond a reasonable doubt, and on the elements of
self-defense, “[n]o separate instruction regarding the burden of proof upon
the issue of self-defense was necessary.” Id. Here, the trial court
instructed the jury on the elements of the crime, the State’s burden of
proving those elements beyond a reasonable doubt, and Ringham’s mistake of
fact defense, and explained that Ringham did not have to explain or prove
anything. Accordingly, we do not believe the trial court’s failure to
specifically instruct the jury on the State’s burden to disprove Ringham’s
mistake of fact defense might have led the jury to believe the State had no
burden. There was no error.
Conclusion
Pursuant to Indiana Appellate Rule 58(A)(2), we summarily affirm the
Court of Appeals’ finding that the trial court did not err when it admitted
into evidence C.C.’s prior consistent statement. The judgment of the trial
court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
-----------------------
[1] The order book is not in the record. At the hearing on remand, Judge
Pratt made the following findings of fact:
2. Judge Pratt executed Appointment of Attorney as Judge Pro Tempore
papers, to allow Master Commissioner Alex Murphy to preside over
defendant’s trial as judge pro tempore. Judge Pro Tempore Murphy then
presided over defendant’s trial until its conclusion on April 18,
2000.
3. As done in the regular course of business, the documents
appointing Murphy as judge pro tempore were placed in the Marion
County Clerk’s order book.
4. These documents were intended to be a part of defendant’s record
of proceedings, however the Marion County deputy clerk failed to
include the pro tempore papers in the record of proceedings.
[2] Rule 32, the rough equivalent of former rule 7.2(C)(2), provides that
if a disagreement arises as to whether the Record on Appeal accurately
discloses what occurred in the trial court, the trial court shall issue an
order either confirming the disputed record or correcting it.