MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded
                                                                           FILED
as precedent or cited before any court except
for the purpose of establishing the defense of                         Jun 22 2017, 6:11 am

res judicata, collateral estoppel, or the law of                           CLERK
                                                                       Indiana Supreme Court
the case.                                                                 Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Jennifer L. Koethe                                          Curtis T. Hill, Jr.
LaPorte, Indiana                                            Attorney General of Indiana
                                                            Angela N. Sanchez
                                                            Supervising Deputy
                                                            Attorney General
                                                            Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Isaiah Marki Walker,                                        June 22, 2017
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            46A03-1604-CR-870
        v.                                                  Appeal from the LaPorte
                                                            Superior Court
State of Indiana,                                           The Honorable Michael S.
Appellee-Plaintiff                                          Bergerson, Judge
                                                            Trial Court Cause No.
                                                            46D01-1506-F3-494



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-870 | June 22, 2017            Page 1 of 9
                                               Case Summary


[1]   Isaiah Walker appeals his conviction for Level 3 felony rape. He contends that

      the trial court abused its discretion by denying his request for a continuance

      after the State failed to include the alleged victim on its witness list filed shortly

      before the jury trial. Walker also argues that he was entitled to an instruction

      on the lesser included offense of battery.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Several months prior to May 2015, Walker reached out to D.C. on Facebook.

      The two had never met but Walker knew D.C.’s boyfriend, Juwan Carwell.

      After Carwell and D.C. broke up, Walker increased his communications with

      D.C. via Facebook.


[4]   On May 5, 2015, Walker and D.C. arranged their first meeting. He was to walk

      eighteen-year-old D.C. to school the following day. D.C. had recently started

      at this new school, which was a special school that met for only a few hours

      each day. D.C. suffers from a seizure disorder and has associated learning

      difficulties that have resulted in her being held back in school. D.C. walked to

      school each day and always arrived on time and was neat and tidy in her

      appearance.


[5]   Walker arrived around 10:00 a.m. at D.C.’s home, and she met him outside.

      They began the forty-five-minute walk to her school. During the walk, Walker

      Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-870 | June 22, 2017   Page 2 of 9
      and D.C. talked about several things. At some point, he asked D.C. if she and

      Carwell ever had sex. D.C. said they had not. Walker then indicated that he

      would like to have sex with her. She declined Walker’s offer, indicating that

      she was not ready.


[6]   As they approached an alley, Walker grabbed D.C.’s wrist tightly and pulled

      her down the alley. She tried to pull away, but he kept assuring her that

      everything would be okay and that nothing was going to happen. Walker led

      D.C. down the alley and eventually let go of her arm. When they came to the

      end of the alley, D.C. tried to walk in the direction of her school. Walker

      grabbed her arm again and pulled her down another alley. D.C. was frightened

      and again tried unsuccessfully to free her arm. She told Walker that she did not

      want to go and was just trying to get to school. Walker told her to trust him.


[7]   Walker took D.C. to an abandoned house in a secluded area. After looking

      around, he directed her up some outdoor stairs to a landing. D.C. turned to

      walk back down the stairs and then Walker said, “Let’s have sex.” Transcript at

      225. D.C. said no, she was not ready for sex, and she wanted to go to school.

      Walker proceeded to unfasten her pants and then his own. He sat her down

      and gently pushed her back onto the landing. He then raised her legs toward

      her chest and placed his penis insider her vagina.


[8]   D.C. repeatedly told Walker to stop and that it hurt. She told him that she did

      not want to do this, and she tried to push him away. Walker responded, “Let

      me cum first.” Id. at 227. After he ejaculated, Walker pulled up his pants.


      Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-870 | June 22, 2017   Page 3 of 9
       Scared that Walker might hurt her further, D.C. acted like she was okay and

       pulled her pants up. The two walked toward the school but when Walker was

       stopped by friends, D.C. quickly continued on her way. Walker called after

       her, “I love you babe.” Id. at 230.


[9]    When D.C. arrived at school, she was crying and her hair and clothes were

       disheveled. She immediately informed her principal that she had been raped.

       D.C. was crying, shaking, and sobbing so hard that she had trouble breathing as

       she recounted the events. After police responded to the 911 call, D.C. took an

       officer to the abandoned house. She was then taken to the hospital for a sexual

       assault examination. The nurse observed a three- or four-inch red area on

       D.C.’s arm, a small open tear below her vagina, and red friction areas on each

       side of her vaginal valve. Subsequent testing of items in the rape kit revealed

       Walker’s DNA and semen.


[10]   Police interviewed Walker on May 12, 2015. He initially denied knowing

       D.C. and then admitted knowing her but insisted they had never had sex. Later

       in the interview, he acknowledged having sex with her at the abandoned house.

       Walker, however, claimed the sex was consensual.


[11]   On June 12, 2015, the State charged Walker with rape. In a discovery response

       filed the next month, the State identified potential witnesses as “those persons

       who are listed on the Charging Information and any other whose name is

       mentioned in any discovery materials provided herewith or hereafter”.

       Appendix Vol. 2 at 30. The State also provided the defense with the charging


       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-870 | June 22, 2017   Page 4 of 9
       information, the police report, a supplemental police report, hospital records,

       D.C.’s recorded interview, and other materials. On September 28, 2015, the

       State supplemented its discovery response with additional information,

       including a certificate of analysis from the State Police Lab. The State filed its

       witness and exhibit list with the trial court on November 12, 2015. Due to an

       oversight, D.C.’s name was not included on the list.


[12]   The jury trial commenced on December 7, 2015. Prior to the testimony of the

       first witness, Walker moved to exclude D.C. from testifying because she had

       not been included on the witness list. In the alternative, he requested a two-

       week continuance to develop possible impeachment evidence. Following a

       hearing outside the presence of the jury, the trial court denied the motion to

       exclude D.C.’s testimony, as well as the continuance. The jury found Walker

       guilty as charged, and he was subsequently sentenced to nine years in prison.

       Walker now appeals. Additional information will be provided as needed.


                                           Discussion & Decision


                                           1. Denial of Continuance


[13]   Walker contends that the trial court abused its discretion by denying the

       requested continuance. He does not claim that the State’s omission of D.C.’s

       name from the witness list was deliberate or that he was surprised by any of her

       testimony. Indeed, the State’s discovery responses filed months before trial put

       Walker on notice that D.C. – the alleged victim – was likely to be called as a

       witness at trial. See Griffith v. State, 59 N.E.3d 947, 957 (Ind. 2016).

       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-870 | June 22, 2017   Page 5 of 9
[14]   Defense counsel noted at trial that he was surprised when D.C.’s name was not

       included on the witness list submitted a few weeks before trial. Counsel argued

       that the omission precluded the defense from developing impeachment

       evidence and preparing for a rape shield hearing. Thus, Walker requested a

       fourteen-day continuance to “comply with the notice requirements of the Rape

       Shield Statute regarding a potential witness named Juwan Carwell who may

       have information about a false accusation of rape made by D.C. concerning

       him.” Appellant’s Brief at 12.


[15]   Rather than grant a continuance, the trial court held a hearing outside the

       presence of the jury regarding the proposed impeachment evidence. Walker’s

       mother, Latonya Davis, testified at this hearing and indicated that she had

       spoken with Carwell the night before trial. Carwell informed Davis that D.C.

       and her sister posted on Facebook after their break up that Carwell had

       “touched [D.C.] the wrong way” and he was “going to get what [he]

       deserve[d].” Transcript at 118. Davis testified that the post had since been

       deleted.1 The trial court concluded that this evidence was too speculative and,

       therefore, not admissible.


[16]   Generally, when the State calls a witness not previously listed, the defendant

       should move for a continuance to examine the witness’s testimony and prepare




       1
         On appeal, Walker asserts that Davis also testified that D.C. told Carwell, “I did this because I don’t want
       people to think I was a hoe”. Appellant’s Brief at 16. Davis, however, made clear that Carwell had not heard
       this directly from D.C. and it was “just his suspicion” of why she made the report against Walker. Transcript
       at 112.

       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-870 | June 22, 2017                Page 6 of 9
       a response. Flores v. State, 485 N.E.2d 890, 894 (Ind. 1985). The granting of a

       continuance in such circumstances, however, is a matter left to the trial court’s

       sound discretion, reversible only for an abuse thereof. Id. “An abuse of

       discretion occurs when the ruling is against the logic and effect of the facts and

       circumstances before the trial court or when the record demonstrates prejudice

       resulting from the denial.” Hamilton v. State, 864 N.E.2d 1104, 1109 (Ind. Ct.

       App. 2007).


[17]   The trial court did not abuse its discretion by denying Walker’s request for a

       continuance made during trial. As noted above, Walker had ample notice that

       D.C. would likely testify and plenty of opportunity to develop impeachment

       evidence. Further, the trial court held a hearing to determine the admissibility

       of the recently discovered evidence that D.C. may have made prior false

       accusations against Carwell. This evidence was clearly weak and did not

       establish that D.C. had made a “demonstrably false” prior rape accusation. See

       Fugett v. State, 812 N.E.2d 846, 849 (Ind. Ct. App. 2004) (“evidence of prior

       false accusations may be admitted, but only if (1) the complaining witness

       admits he or she made a prior false accusation of rape; or (2) the accusation is

       demonstrably false”; “accusations are demonstrably false where the victim has

       admitted the falsity of the charges or they have been disproved”).


                                            2. Battery Instruction


[18]   Walker also argues that the trial court abused its discretion by denying his

       request for the jury to be instructed on the lesser offense of battery. He claims


       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-870 | June 22, 2017   Page 7 of 9
       there is evidence to suggest that a battery without a rape occurred. Specifically,

       he argues that the jury could have believed that a battery occurred when he

       grabbed D.C.’s arm and pulled her down the alley but also believe that the

       subsequent sexual intercourse was consensual.


[19]   “Battery is an inherently included lesser offense of rape, and the element

       distinguishing the two offenses is sexual intercourse.” Angle v. State, 698 N.E.2d

       356, 359 (Ind. Ct. App. 1998). Where no serious evidentiary dispute exists

       regarding whether sexual intercourse occurred, however, the defendant is not

       entitled to an instruction on battery as a lesser included offense of rape.2 Id.


[20]   Here, as in Angle, there was no dispute that sexual intercourse occurred. The

       only issue before the jury was whether the sexual intercourse was consensual.

       Under the circumstances, there was no reasonable basis for the jury to find that

       the lesser offense of battery occurred during the sexual intercourse but not the

       greater offense of rape. Further, Walker’s reliance on uncharged misconduct

       that occurred before the sexual intercourse is improper. The trial court properly

       rejected the battery instruction.


[21]   Judgment affirmed.




       2
        If there is a serious evidentiary dispute about the element(s) distinguishing the greater from the lesser
       offense and if, in view of this dispute, a jury could conclude that the lesser offense was committed but not the
       greater, then it is reversible error for a trial court not to give an instruction, when requested, on the inherently
       or factually included lesser offense. Id.

       Court of Appeals of Indiana | Memorandum Decision 46A03-1604-CR-870 | June 22, 2017                     Page 8 of 9
Kirsch, J. and Mathis, J., concur.




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