                                                                                 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



      Court of Appeals of Indiana | Opinion 65A01-1511-CR-1979 | September 30, 2016                  Page 1 of 10
      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


      Court of Appeals of Indiana | Opinion 65A01-1511-CR-1979 | September 30, 2016   Page 2 of 10
      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


      Court of Appeals of Indiana | Opinion 65A01-1511-CR-1979 | September 30, 2016   Page 3 of 10
      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

      Court of Appeals of Indiana | Opinion 65A01-1511-CR-1979 | September 30, 2016   Page 4 of 10
       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
       Court of Appeals of Indiana | Opinion 65A01-1511-CR-1979 | September 30, 2016   Page 5 of 10
       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.




       Court of Appeals of Indiana | Opinion 65A01-1511-CR-1979 | September 30, 2016   Page 6 of 10
[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


       Court of Appeals of Indiana | Opinion 65A01-1511-CR-1979 | September 30, 2016   Page 7 of 10
       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.



       Court of Appeals of Indiana | Opinion 65A01-1511-CR-1979 | September 30, 2016   Page 8 of 10
[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.


       Court of Appeals of Indiana | Opinion 65A01-1511-CR-1979 | September 30, 2016   Page 9 of 10
                                                  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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