MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                 Apr 26 2016, 9:16 am
regarded as precedent or cited before any
                                                                          CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Anthony S. Churchward                                    Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lavonte A. Wilderness,                                   April 26, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1510-CR-1725
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         02D06-1503-F3-23



Altice, Judge.


                                          Case Summary




Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1725 | April 26, 2016         Page 1 of 10
[1]   Lavonte A. Wilderness appeals his convictions and sentence for Rape as a

      Level 1 felony, Criminal Confinement as a Level 5 felony, and Strangulation as

      a Level 6 felony. He raises the following issues for our review:


              I. Did the trial court abuse its discretion in instructing the jury?


              II. Is Wilderness’s sentence inappropriate?


[2]   We affirm.


                                       Facts & Procedural History


[3]   On the evening of August 11, 2014, L.S. was making the return trip to her

      home in Decatur, Indiana after visiting her family in Chicago for the weekend.

      She took a bus from Chicago to Fort Wayne, where she had left her car parked

      near the bus station. While making the three-block walk to her car after getting

      off the bus, L.S. crossed paths with Wilderness. As soon as she walked past

      him, Wilderness turned around and pointed a gun at L.S.’s back and told her to

      keep walking. When they reached L.S.’s car, Wilderness took her keys and cell

      phone. He unlocked the car, threw her luggage in the trunk, and got in the

      passenger side. While pointing the gun at her, he told L.S. to get into the car

      and drive. L.S. told him that she did not have enough gas in the car, so they

      stopped at a gas station. Wilderness threatened to shoot L.S. in the gas station

      if she did not behave normally.


[4]   After L.S. put gas in the car, Wilderness directed her to drive to a dead-end

      street. Wilderness then yanked the gearshift into park and began choking L.S.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1725 | April 26, 2016   Page 2 of 10
      He then got out of the car and walked around to the driver’s side, where he

      resumed choking L.S. When L.S. tried to fight back, Wilderness punched her

      in the eye. Wilderness then dragged L.S. out of the car and raped her vaginally

      and anally. Afterward, Wilderness got up and walked away. L.S. vomited on

      the ground, then got into her car and drove home.


[5]   While en route to Decatur, L.S. called Theresa Bodle, who went to L.S.’s house

      and found her lying on the floor, crying and shaking in a fetal position. Bodle

      called the police and took L.S. to a medical center where she underwent a

      sexual assault examination. DNA samples collected during the exam were

      consistent with the DNA profile of Wilderness.


[6]   The State ultimately charged Wilderness with Level 1 felony rape, Level 5

      felony criminal confinement, and Level 6 felony strangulation. Following a

      two-day jury trial, Wilderness was found guilty as charged. On September 16,

      2015, the trial court sentenced Wilderness to consecutive terms of forty years

      for rape, six years for criminal confinement, and two and a half years for

      strangulation, for an aggregate sentence of forty-eight and a half years.

      Wilderness now appeals.


                                          Discussion & Decision


                                             I. Jury Instruction


[7]   Wilderness’s rape charge was elevated to a Level 1 felony based on the State’s

      allegation that he committed the offense while armed with a deadly weapon


      Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1725 | April 26, 2016   Page 3 of 10
      and/or threatening the use of deadly force. See Ind. Code § 35-42-4-1.

      Wilderness argues that the trial court erred by instructing the jury as follows:

              It is not required that the deadly weapon be held on the victim at
              all times. The initial showing of deadly force and the victim’s
              awareness of the defendant’s continued constructive possession
              of the weapon may be sufficient to satisfy the “armed with a
              deadly weapon” element.


      Appellant’s Appendix at 63. This instruction was adapted from language used by

      our Supreme Court in Potter v. State, 684 N.E.2d 1127, 1137 (Ind. 1997)

      (providing that “[w]hen Rape is elevated to a Class A felony due to the use of a

      deadly weapon, it is not necessary for the State to show that the weapon was

      held on the victim at all times”).


[8]   As this court has explained,

              [t]he purpose of jury instructions is to inform the jury of the law
              applicable to the facts without misleading the jury and to enable
              it to comprehend the case clearly and arrive at a just, fair, and
              correct verdict. In reviewing a trial court’s decision to give a
              tendered jury instruction, we consider (1) whether the instruction
              correctly states the law, (2) is supported by the evidence in the
              record, and (3) is not covered in substance by other instructions.
              The trial court has discretion in instructing the jury, and we will
              reverse only when the instructions amount to an abuse of
              discretion. To constitute an abuse of discretion, the instructions
              given must be erroneous, and the instructions taken as a whole
              must misstate the law or otherwise mislead the jury. We will
              consider jury instructions as a whole and in reference to each
              other, not in isolation.



      Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1725 | April 26, 2016   Page 4 of 10
       Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010) (quoting Murray v.

       State, 798 N.E.2d 895, 899-900 (Ind. Ct. App. 2003)).


[9]    Wilderness makes no argument that the instruction misstated the law, nor could

       he. See Potter, 684 N.E.2d at 1137. Instead, he argues that the instruction

       inappropriately invited the jury to rely on an appellate standard for determining

       the sufficiency of the evidence. In support, Wilderness cites Ludy v. State, 784

       N.E.2d 459, 460 (Ind. 2003), in which our Supreme Court disapproved of an

       instruction providing that a conviction may be based solely on the

       uncorroborated testimony of an alleged victim, partly because “it presents a

       concept used in appellate review that is irrelevant to a jury’s function as fact-

       finder.” Id. at 461. The Court reasoned that appellate courts reviewing the

       sufficiency of the evidence have observed that a conviction may rest upon the

       uncorroborated testimony of the victim, but that a jury is not charged with

       reviewing whether a conviction is supported. Instead, the jury’s task is to

       determine whether the State proved the charged crime beyond a reasonable

       doubt, and in doing so, the jury must consider all evidence presented. The

       Court reasoned that “[t]o expressly direct a jury that it may find guilt based on

       the uncorroborated testimony of a single person is to invite it to violate its

       obligation to consider all the evidence.” Id. at 462.


[10]   The instruction at issue here is very different from the one at issue in Ludy.

       Nothing about the instruction invited the jury to violate its obligation to

       consider all the evidence. Instead of presenting an appellate standard of review,

       the instruction helped to fully define the phrase “armed with a deadly weapon”

       Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1725 | April 26, 2016   Page 5 of 10
       in the context of the rape charge. In other words, the instruction was not

       improper because it was “necessary for a full, correct statement of the law[.]”

       See Patterson v. State, 11 N.E.3d 1036, 1042 (Ind. Ct. App. 2014). See also

       Munford, 923 N.E.2d at 15 (noting that “[t]here is no blanket prohibition against

       the use of appellate decision language in jury instructions”).


[11]   Again relying on Ludy, Wilderness also argues that the instruction

       inappropriately highlighted a single piece of evidence—in this case, the gun.

       Ludy is a poor analogue. In that case, the Court found that it was inappropriate

       to inform the jury that it may find guilt based solely on the victim’s

       uncorroborated testimony because doing so invited the jury to focus on the

       victim’s testimony to the exclusion of other evidence. In this case, however, it

       was entirely appropriate to make reference to the gun in instructing the jury on

       the “armed with a deadly weapon” element. Indeed, we are at a loss as to how

       the jury could have been properly instructed without making mention of such

       evidence.


[12]   Finally, Wilderness argues that the instruction was improper because it

       presumes that he possessed a gun, a fact the State was required to prove. This

       argument overlooks the other instructions given to the jury. Both the

       preliminary and final instructions informed the jury that the State was required

       to prove the elements of the offenses, including the “using or threatening the

       use of deadly force or . . . while armed with a deadly weapon” element of the

       rape charge, beyond a reasonable doubt. Amended Appellant’s Appendix at 45, 57.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1725 | April 26, 2016   Page 6 of 10
                                                 II. Sentencing


[13]   Wilderness also argues that his sentence is inappropriate. Article 7, section 4 of

       the Indiana Constitution grants our Supreme Court the power to review and

       revise criminal sentences. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014),

       cert. denied, 135 S.Ct. 978 (2015). Pursuant to Ind. Appellate Rule 7, the

       Supreme Court authorized this court to perform the same task. Cardwell v. State,

       895 N.E.2d 1219, 1224 (Ind. 2008). Per App. R. 7(B), we may revise a sentence

       “if after due consideration of the trial court’s decision, the Court finds that the

       sentence is inappropriate in light of the nature of the offense and the character

       of the offender.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R.

       7). “Sentencing review under Appellate Rule 7(B) is very deferential to the trial

       court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Wilderness bears the

       burden on appeal of persuading us that his sentence is inappropriate. See id.


[14]   The determination of whether we regard a sentence as inappropriate “turns on

       our sense of the culpability of the defendant, the severity of the crime, the

       damage done to others, and myriad other factors that come to light in a given

       case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895

       N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to

       leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is

       not our goal in this endeavor to achieve the perceived “correct” sentence in

       each case. Knapp, 9 N.E.3d at 1292. Accordingly, “the question under

       Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,



       Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1725 | April 26, 2016   Page 7 of 10
       the question is whether the sentence imposed is inappropriate.” King v. State,

       894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original).


[15]   In order to assess the appropriateness of a sentence, we first look to the

       statutory range established for the classification of the relevant offense.

       Wilderness was convicted of a Level 1 felony, a Level 5 felony, and a Level 6

       felony. The relevant statutes provide a sentencing range of twenty to forty years

       for a Level 1 felony, one to six years for a Level 5 felony, and six months to two

       and a half years for a Level 6 felony. Ind. Code §§ 35-50-2-4, -6, -7. The trial

       court imposed consecutive terms of forty years for rape, six years for criminal

       confinement, and two and half years for strangulation. Thus, Wilderness’s

       aggregate sentence of forty-eight and a half years is the maximum sentence

       permitted by law.


       Ordinarily, the maximum possible sentence is most appropriate for the worst

       offenders. Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002). This is not,

       however, an invitation to determine whether a worse offender could be

       imagined. Wells v. State, 904 N.E.2d 265, 274 (Ind. Ct. App. 2009), trans.

       denied. “Despite the nature of any particular offense and offender, it will always

       be possible to identify or hypothesize a significantly more despicable scenario.”

       Buchanan, 767 N.E.2d at 973. Accordingly, “[w]e concentrate less on

       comparing the facts of this case to others, whether real or hypothetical, and

       more on focusing on the nature, extent, and depravity of the offense for which

       the defendant is being sentenced, and what it reveals about the defendant’s

       character.” Wells, 904 N.E.2d at 274.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1725 | April 26, 2016   Page 8 of 10
[16]   Wilderness’s offenses are reprehensible in nature. He abducted a terrified L.S.

       at gunpoint, threatened her life, and forced her to drive to an isolated location.

       Once there, he choked her and punched her in the face before dragging her out

       of the car and raping her vaginally and anally. When he finished, he left L.S. to

       vomit on the ground as he walked away. As a result of the attack, L.S. had a

       black eye, petechial hemorrhaging in her eyes, redness to her throat, and a

       bleeding abrasion on her cervix. Additionally, about a week after the attack,

       L.S. discovered that Wilderness had infected her with chlamydia. L.S.

       continues to suffer psychologically as a result of Wilderness’s brutal attack. She

       testified that she has to see a therapist on a long-term basis to manage her

       anxiety and that she has not slept well since the rape, even with the aid of

       sleeping pills prescribed by her doctor.


[17]   With respect to Wilderness’s character, we note that he has an extensive record

       of criminal conduct. As a juvenile, Wilderness was twice adjudicated

       delinquent, once for theft and once for burglary, both of which would have been

       felonies if committed by an adult. As an adult, Wilderness has been convicted

       of twelve misdemeanors, including two counts of battery and three counts of

       resisting law enforcement. He also has one felony conviction for possession of

       marijuana. Wilderness has been provided multiple opportunities for

       rehabilitation, all of which have apparently failed. His suspended sentences on

       his misdemeanor convictions have been revoked twice and modified once. His

       sentence on his felony conviction has been modified twice. Moreover, the

       brutality of the offenses in this case speaks volumes about Wilderness’s


       Court of Appeals of Indiana | Memorandum Decision 02A03-1510-CR-1725 | April 26, 2016   Page 9 of 10
       character. In light of the heinousness of Wilderness’s offenses and his unsavory

       character, we cannot conclude that the maximum sentence was inappropriate.


[18]   Judgment affirmed.


[19]   Robb, J. and Barnes, J., concur.




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