ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan D. Rayl Karen Freeman-Wilson
Indianapolis, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
LINDELL WINN, )
Defendant-Appellant, )
)
v. ) 49S00-0004-CR-255
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9809-CF-154769
________________________________________________
On Direct Appeal
May 22, 2001
DICKSON, Justice
Lindell Winn was convicted of rape, a class A felony,[1] criminal
deviate conduct, a class A felony,[2] criminal confinement, a class B
felony,[3] battery, a class C felony,[4] and criminal recklessness, a class
D felony,[5] and he was sentenced as a habitual offender.[6] In this
direct appeal, the defendant claims error arising from: (1) insufficient
evidence to support his conviction for criminal confinement as charged; (2)
denial of his motion to recuse the trial judge; (3) keeping M.S. in jail
pending trial and excluding evidence thereof; (4) admissibility of habitual
offender evidence; (5) maximum habitual offender enhancement as manifestly
unreasonable; and (6) unbelievable and coerced testimony of the victim.
1. Criminal Confinement
The defendant contends that the State failed to prove the allegations
of the information charging him with criminal confinement. The information
charged that: "Lindell Winn, on or about September 25, 1998, did
knowingly, while armed with a deadly weapon, that is: rifle, confine
[M.S.], without the consent of [M.S.], by laying next to her with a rifle
refusing to let her leave." Record at 34. The defendant argues that the
evidence shows merely that he lay down beside M.S. while he was armed, but
that he did not confine her because, when she got up to go to the bathroom,
he asked her where she was going but did not attempt to stop her and fell
back asleep. He seeks a judgment of acquittal on the charge of criminal
confinement, asserting that, "[b]ecause the State presented no evidence
whatsoever that Winn would not allow [M.S.] to leave it failed to produce
substantial probative evidence of a material element of criminal
confinement as charged." Appellant's Br. at 11.
The State responds by noting evidence that the defendant had attacked
M.S. by striking her on the head with a rifle, threatened that he was going
to kill both her and her daughter, raped M.S. twice and forced her to
perform oral sex, and then, while holding a gun, directed her to lay down
next to him, and she complied. The State argues that this evidence
establishes the statutory elements of the crime.
The offense of criminal confinement as a class B felony is defined,
in pertinent part, as follows:
A person who knowingly or intentionally:
(1) confines another person without the other person's consent;
or
(2) removes another person, by fraud, enticement, force, or
threat of force, from one (1) place to another;
commits criminal confinement, a class D felony. However, the offense
is . . . a Class B felony if it is committed while armed with a deadly
weapon or results in serious bodily injury to another person.
Ind.Code § 35-42-3-3. As charged here, the offense is based on non-
consensual confinement under subsection (1) rather than removal under
subsection (2). Following its allegation that the defendant confined M.S.
without her consent, the charging information adds "by laying next to her
with a rifle refusing to let her leave." Record at 34. The parties do not
dispute that the evidence establishes that the defendant directed M.S. to
lie down beside him while he was holding a sawed-off rifle, but they
disagree as to whether the State was also required to prove that the
defendant refused to let M.S. leave.
Without objection from the defense, the trial court instructed the
jury that to convict the defendant of criminal confinement under count IV,
the State must prove the following elements: (1) the defendant, (2)
knowingly, (3) confined [M.S.], (4) without her consent. Record at 142.
A charging information must allege the elements of the crime such
that the accused is sufficiently apprised of the nature of the charges
against him so that he may anticipate the proof and prepare a defense in
advance of trial. See Ind. Const. art. 1, § 13; Ind.Code § 35-34-1-2;
Smith v. State, 465 N.E.2d 702, 704 (Ind. 1984). The State is not required
to include detailed factual allegations in the charging instrument, though
it may choose to do so. Richardson v. State, 717 N.E.2d 32, 51 (Ind.
1999). Citing Allen v. State, 720 N.E.2d 707 (Ind. 1999), the defendant
seeks relief on grounds of a material variance between the charge and the
proof.
The evidence relating to the specific conduct alleged to constitute
criminal confinement is sparse. Record 286-88. Prior to the alleged acts
of confinement, the defendant struck M.S. in the head twice with the butt
of his sawed-off rifle, raped her, forced her to have oral sex with him,
and then raped her again. During the episode, he pointed the rifle at
M.S.'s daughter and declared that he was going to kill both M.S. and her
daughter. During the preceding rapes and criminal deviate conduct, M.S.
had not objected or resisted because the defendant was holding a gun and
had threatened her. As to the events constituting the alleged confinement,
however, there is no direct evidence regarding whether she specifically
consented. M.S. testified that, after she engaged in nonconsensual sexual
intercourse with her on top of him, the defendant "told me to lay down next
to him." Record at 286. She did so. At some later point in time, not
described in the record, M.S. got up, and the defendant asked where she was
going. She replied that she was going to the bathroom. There is no
evidence of any response from him. When she came out of the bathroom, he
was snoring, and M.S. and her daughter left, sought medical attention, and
called the police. When police arrived at the scene of the crime, the
defendant was still sleeping, holding his sawed-off rifle.
We agree with the defendant that the State failed to prove the
specific factual allegation that the defendant refused to let [M.S.] leave
while he lay next to her with a rifle. While this is an essential
difference between the proof and pleading, we find that the specific facts
alleged were surplusage and as such could have been "entirely omitted
without affecting the sufficiency of the charge against the defendant."
Mitchem v. State, 685 N.E.2d 671, 676 (Ind. 1997). When the factual
allegations in the charge are not necessary to the sufficiency of the
charge, a greater variance between the allegations and the proof is
tolerated before finding the variance material or fatal. Allen, 720 N.E.2d
at 713. To award relief on the basis of a variance between allegations in
the charge and the evidence at trial, the variance must be such as to
either have misled the defendant in the preparation and maintenance of his
defense with resulting harm or prejudice or leave the defendant vulnerable
to double jeopardy in a future criminal proceeding covering the same event,
facts, and evidence. Mitchem, 685 N.E.2d at 677; Harrison v. State, 507
N.E.2d 565, 566 (Ind. 1987).
The defendant does not present any argument as to how he was misled
in his defense or suffered prejudice as a result of the variance. We also
note that defense counsel in closing argument acknowledged that the State
had presented evidence of alternate theories supporting the elements of
criminal confinement, and, while disputing that the defendant prevented
M.S. from leaving after he lay down with her, admitted that "[n]ow if you
believe he had the gun there and he was threatening with it then [criminal
confinement is] what he's guilty of but you have to believe that first."
Record at 470. Further, under Indiana's double jeopardy jurisprudence, the
defendant is similarly not vulnerable to being tried again for the same
crime.
Having found that the variance is not fatal, we must still determine
if the evidence presented is sufficient to support the conviction for
criminal confinement. If the surplus "refusing to let her leave" language
is omitted, the State charged that the defendant "did knowingly, while
armed with a deadly weapon, that is: rifle, confine [M.S.], without the
consent of [M.S.], by laying next to her with a rifle." Record at 34. This
language is sufficient to charge the defendant with criminal confinement.
In reviewing a claim of insufficient evidence, we will affirm the
conviction unless, considering only the evidence and reasonable inferences
favorable to the judgment, and neither reweighing the evidence nor
assessing the credibility of the witnesses, we conclude that no reasonable
fact-finder could find the elements of the crime proven beyond a reasonable
doubt. Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000).
We find the evidence sufficient to prove criminal confinement as
defined by statute, as set forth in the jury instructions, and as alleged
in the information charging the non-consensual confinement by laying next
to M.S. while armed. Particularly in light of the defendant's conduct
preceding the confinement, the evidence is sufficient to create the
reasonable inference that M.S.'s obedience to the defendant's command that
she lie in bed with him established a reasonable inference that he
initially confined her in bed without her consent, notwithstanding her
subsequent departure. The evidence was sufficient to prove criminal
confinement.
2. Motion to Recuse Judge
The defendant claims that the trial court erred by failing to recuse
itself upon a showing by the defendant that the court was biased against
him. The defendant alleges that the court abandoned its neutrality and
assumed an adversarial role against the defendant when it sua sponte had
the State’s chief witness, in this case M.S., incarcerated past her release
date to guarantee that she would be available to testify at the defendant's
trial. The defendant argues that the trial court's assistance to the State
gives rise to a rational inference of bias or prejudice, and the trial
court’s denial of his motion is clearly erroneous.
Under Indiana Criminal Rule 12(B) a defendant requesting a change of
judge for bias or prejudice must "timely file an affidavit that the judge
has a personal bias or prejudice against the state or defendant." Rule
12(B) further requires the affidavit to "state the facts and the reasons
for the belief that such bias or prejudice exists," and be accompanied by
"a certificate from the attorney of record that the attorney in good faith
believes that the historical facts recited in the affidavit are true." The
court must grant the request "if the historical facts recited in the
affidavit support a rational inference of bias or prejudice." Id. The
ruling on a motion for change of judge is reviewed under the clearly
erroneous standard. Sturgeon v. State,719 N.E.2d 1173, 1182 (Ind. 1999).
Reversal of the judge's decision will require a showing which leaves us
with a definite and firm conviction that a mistake has been made. Id. at
1182.
In this case, the defendant did not file an affidavit or an attorney's
certificate.[7] Defense trial counsel raised the matter only by oral
motion made at the commencement of trial on Monday, November 29, 1999. He
informed the judge of his contention that the court's action in keeping
M.S. in jail an extra two days to assure her availability to testify "shows
a bias on the part of this Court." Record at 182. In support of his
request, the defendant called a records clerk at the Marion County jail,
who testified that on November 24, 1999 she received a call from an unknown
female person in Courtroom 5 who asked that M.S. be held until "her hearing
on 11-29 as a witness in this case." Record at 198. The witness stated
that she knew the call was from Courtroom 5 because she cross-referenced
the incoming phone number. The witness testified that the female caller
knew that M.S.'s release date was 11-27, but told the records clerk that
the court wanted M.S. held until the hearing. Id. The witness agreed that
this was the only reason [M.S.] was being held until the day of trial. Id.
at 199.
The trial court took the motion for recusal under advisement and,
after lunch recess, denied it. We note that the Record of Proceedings
contains a "Return Order" signed by the judge and filed the same day,
November 29, 1999, ordering the Sheriff to return M.S. to the Rockville
Correctional Facility, from which she had been transported to the Marion
County Jail. Record at 101.[8] The testimony of M.S. took place the next
day, November 30, 1999, and we find nothing in the Record to indicate
whether, when she appeared and testified, she was still in custody, whether
her appearance was voluntary, or whether her attendance was compelled by
subpoena.
The State contends that the defendant "can point to nothing in the
record that suggests bias on behalf of the court. [The jail clerk's]
testimony, viewed in the most favorable light possible to [the defendant],
shows only that someone identifying themselves as personnel from Marion
Superior Courtroom Five, without the judge's direction or even his
knowledge, asked for [M.S.] to be held until trial." Br. of Appellee at 7.
The defendant does not deny this characterization of the facts, but argues
that, even if the judge did not personally authorize this action, the judge
is responsible for the actions of his staff.
We acknowledge that a rational inference may be made that the court's
staff would not request the incarceration of a witness without either
explicit or standing judicial direction or, because the court staff member
assumed based on her knowledge that the judge would approve. We find no
rational inference, however, that the trial judge had personal knowledge
that extending the presence of M.S. in the Marion County Jail for two days
to testify might exceed the date of her scheduled release from the
Rockville Correctional Facility, or was otherwise improper. On motion of
the prosecutor, the trial court had ordered the transport of M.S. from the
Rockville Correctional Facility to testify.
Upon these facts, assuring the availability of this incarcerated
witness for trial does not reasonably suggest any bias or prejudice of the
trial judge. We decline to find from the asserted facts a rational
inference of personal bias or prejudice on the part of the judge. The
defendant's argument does not leave us with a definite and firm conviction
that a mistake has been made. Sturgeon, 719 N.E.2d at 1182.
3. Retaining Witness in Jail and Excluding Evidence
The defendant also contends that the trial court erred by assuming an
adversarial role by keeping the State’s witness in jail for no reason "but
to testify against" the defendant, and by failing to "disclose to the jury
what it had done." Appellant's Br. at 14.
We reject the defendant's claim that the judge assumed an improper
adversarial role for the same reasons discussed above with respect to the
claim of bias and prejudice.
As to the claim of excluded evidence, prior to trial, the court
granted the State's motion in limine seeking to prohibit the jury from
hearing evidence of [M.S.'s] criminal history and incarceration. Record at
104. The State now argues that the defendant failed at trial to make any
offer of proof or to otherwise seek relief from the order in limine. In
order to preserve an error for appellate review, the excluded evidence must
be offered at trial to give the trial court an opportunity to rule on its
admissibility at that time. Miller v. State, 716 N.E.2d 367, 370 (Ind.
1999). The defendant does not direct us to any offer of proof or other
action taken during trial to raise this question, and we find none. The
exclusion of the challenged evidence is therefore not an available issue on
appeal.
4. Habitual Offender Evidence Admission
The defendant next contends that the trial court erred during the
habitual offender phase of the trial in admitting evidence of two prior
misdemeanor convictions and a prior information charging the defendant
with being a habitual substance offender.
The State's information charging that the defendant was a habitual
offender alleged that he had accumulated two prior unrelated felony
convictions, one for theft as a class D felony, and the other for operating
a vehicle while intoxicated as a class D felony. To prove these prior
offenses, the State presented State's Exhibits 23 and 24. Each exhibit
consisted of a packet of the "Officer's Arrest Report / Book-in Slip," the
charging informations, and the order of judgment of conviction. Exhibit
24, supporting the conviction for class D felony operating while
intoxicated, included a count charging that defendant was a habitual
substance offender, based on two identified additional prior unrelated
substance offense convictions. The exhibit also indicated that, except for
the class D felony conviction, the other counts were dismissed. At trial,
the defendant objected to State's Exhibits 23 and 24 only on grounds of
improper foundation. The issue now claimed on appeal was not raised at
trial, and the trial court thus had no opportunity to consider the
possibilities of redaction, exclusion, or jury admonishment. The defendant
may not assert for the first time on appeal grounds for exclusion of
evidence not asserted at trial. Gill v. State, 730 N.E.2d 709, 711 (Ind.
2000); Taylor v. State, 710 N.E.2d 921, 923 (Ind. 1999). This claim is
forfeited by procedural default.
5. Manifestly Unreasonable Sentence Enhancement
The defendant also contends that the thirty-year habitual offender
sentence enhancement of his fifty-year sentence for rape is manifestly
unreasonable. Emphasizing that his two prior felony convictions were non-
violent class D felonies, he asks that his enhancement be reduced from
thirty years to ten years.
Upon the jury's determination that the defendant was guilty of rape
as a class A felony, criminal deviate conduct as a class A felony, criminal
confinement as a class B felony, battery as a class C felony, and criminal
recklessness as a class D felony, the trial court imposed the maximum
sentence for each count but ordered the sentences served concurrent to each
other. Because the jury found that the defendant was a habitual criminal
offender by reason of having accumulated two prior unrelated felony
convictions, the court was required to impose a habitual offender
enhancement upon only one of the convictions, and to specify the conviction
thus enhanced. See Greer v. State, 680 N.E.2d 526, 527 (Ind. 1997). In
the present case, depending upon whether the enhancement was attached to
one of the class A felonies or the class D felony, the trial court could
have imposed an enhancement ranging from as little as one and one-half
years to thirty years, pursuant to the statute which provides:
The court shall sentence a person found to be a habitual criminal to
an additional fixed term that is not less than the presumptive
sentence for the underlying offense nor more than three (3) times the
presumptive sentence for the underlying offense. However, the
additional sentence may not exceed thirty (30) years.
Ind.Code 35-50-2-8(e).[9] The trial court chose to attach the habitual
offender enhancement to the conviction for rape as a class A felony,
thereby further enhancing its maximum fifty-year sentence for rape to
eighty years. Because the presumptive sentence for a class A felony is
thirty years,[10] the habitual offender enhancement attached to a class A
felony requires an enhancement of thirty years.
The defendant argues that his habitual offender enhancement was the
same as would have been given to a serial murderer, and is manifestly
unreasonable considering that his two prior felony convictions were class D
felonies. The State responds that the enhancement was reasonable
particularly in light of the brutality of his offenses against M.S. We
note that a jury's habitual offender finding reflects not merely its
conclusion that a defendant has been twice previously convicted of
unrelated felonies, but also that the two prior convictions together with
the current offense lead it to find that the defendant is a habitual
criminal. Seay v. State, 698 N.E.2d 732, 736 (Ind. 1998).
This Court is authorized to review and revise a sentence authorized
by statute when we find the sentence is "manifestly unreasonable in light
of the nature of the offense and the character of the offender."
Ind.Appellate Rule 17(B).[11] To warrant modification of a sentence as
manifestly unreasonable, we must find it to be clearly, plainly, and
obviously unreasonable. Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999);
Brown v. State, 698 N.E.2d 779, 783-84 (Ind. 1998); Prowell v. State, 687
N.E.2d 563, 568 (Ind. 1997).
In sentencing the defendant, the trial court found that he had a
history of non-violent criminal activity consisting of theft in 1998,
operating while intoxicated as a D felony in 1995, operating while
intoxicated as a misdemeanor in 1994, operating while intoxicated in 1991,
and several incidents of driving while suspended prior to 1990. The court
found that, with respect to the count charging criminal recklessness, the
defendant pointed a rifle at M.S.'s child, who was less than 12 years of
age. The court summarized the criminal episode as follows: "You, while
armed with a deadly weapon, confronted this lady, and struck her, and
threatened her and required her to forcibly submit to sexual activities,
More than one." Record at 532-33. As mitigating circumstances, the court
found that the defendant had earned a G.E.D., that he had served in the
U.S. Army during Operation Desert Storm, and that his incarceration would
be hardship on his family. Record at 532.
Considering the nature of the offenses and the defendant's character
as reflected by the trial court's sentencing findings, the court's decision
to impose the maximum fifty-year sentences for rape and criminal deviate
conduct, and the range of habitual offender enhancements available, we
conclude that imposing the maximum habitual enhancement by attaching it to
one of the class A felony convictions was clearly and plainly unreasonable.
We agree with the defendant that the enhancement should be ten years.
This may be implemented by attaching the enhancement to either criminal
confinement as a class B felony or battery as a class C felony.
6. Inherently Improbable Witness Testimony
As a separate issue, the defendant contends that all his convictions
should be reversed because the testimony of the sole eyewitness, M.S., was
both coerced and unbelievable. His claim of coercion arises from his
allegation that M.S. was held in jail past her release date.
To support his claim that M.S.'s testimony was inherently improbable,
the defendant alleges that her conduct during the episode was unlikely,
that her testimony was not credible, and that there were inconsistencies
between her trial and deposition testimony. The State responds that
various parts of M.S.'s testimony were corroborated with evidence of
injuries to her scalp consistent with being hit, injuries to her hands
consistent with defending herself, semen on her thigh, and the police
officers' discovery of the defendant sleeping in M.S.'s bed cradling a gun.
While there are inconsistencies in M.S.’s testimony, none are sufficient
to render her testimony as a whole inherently improbable. We further find
nothing to support the defendant's speculation that M.S.'s testimony was
coerced by the possibility that she was kept incarcerated beyond her
release date. We find no error on this issue.
Conclusion
We affirm the judgment except for the length of the habitual offender
enhancement, and remand to the trial court solely for the following
purpose: the trial court shall sever the thirty-year habitual offender
enhancement from the sentence for rape as a class A felony and shall impose
a ten-year habitual offender enhancement by attaching it to either the
sentence for criminal confinement as a class B felony or to the sentence
for battery as a class C felony.
SHEPARD, C.J., and BOEHM, and RUCKER, JJ., concur. SULLIVAN, J.
concurs except as to Part 5, as to which he concurs in result.
-----------------------
[1] Ind.Code § 35-42-4-1(b).
[2] Ind.Code § 35-42-4-2.
[3] Ind.Code § 35-42-3-3(1).
[4] Ind.Code § 35-42-2-1(a)(3).
[5] Ind.Code § 35-42-2-2(b).
[6] Ind.Code § 35-50-2-8.
[7] The State did not oppose the motion either at trial or on appeal
on grounds that the defendant failed to comply with the requirements of the
Rule.
[8] On October 27, the State filed a motion to transport M.S. from the
Rockville Correctional Facility to Marion County for the purpose of
testifying at the jury trial in this case originally scheduled to begin
November 8, 1999. By entry dated October 29, 1999, the court ordered her
to be transported to the Marion County Jail "no later than November 5,
1999, and further to the Marion Superior Court, Criminal Division Five, on
November 8, 1999 for the purposes of testifying . . . ." Record at 91. On
its own motion for court congestion, the court later vacated the original
trial date of November 8, 1999, and reset it for November 29, 1999. Record
at 97. The trial began on November 29, 1999.
[9] The presumptive sentence for a class D felony is one and one-
half years. Ind.Code § 35-50-2-7.
[10] Ind.Code § 35-50-2-4.
[11] For appeals initiated after January 1, 2001, this provision is
Appellate Rule 7(B).