MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                                Jul 12 2016, 8:54 am
this Memorandum Decision shall not be
                                                                          CLERK
regarded as precedent or cited before any                             Indiana Supreme Court
                                                                         Court of Appeals
court except for the purpose of establishing                               and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Leanna Weissmann                                         Gregory F. Zoeller
Lawrenceburg, Indiana                                    Attorney General

                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Kenneth Williams,                                        July 12, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         15A01-1511-CR-1899
        v.                                               Appeal from the Dearborn Circuit
                                                         Court
State of Indiana,                                        The Honorable James D.
Appellee-Plaintiff.                                      Humphrey, Judge
                                                         Trial Court Cause No.
                                                         15C01-1410-F3-053



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 15A01-1511-CR-1899 | July 12, 2016          Page 1 of 10
                                          Case Summary
[1]   Kenneth Williams was convicted of two counts of rape, attempted rape,

      criminal confinement, and being a habitual offender, and the trial court

      sentenced him to an aggregate term of fifty-two years.

[2]   Williams now appeals, arguing that the trial court erred in admitting into

      evidence phone calls he made from jail in which he offered the victim’s family

      $4000 in exchange for the victim dropping the charges. He also argues that the

      evidence is insufficient to support his conviction for criminal confinement and

      that his sentence is inappropriate. Because we find substantial evidence of guilt

      apart from the phone calls, their admission does not require reversal. In

      addition, we conclude that the evidence is sufficient to support Williams’s

      conviction for criminal confinement and that Williams has failed to persuade us

      that his fifty-two-year sentence is inappropriate in light of the nature of the

      offenses and his character. We affirm the trial court.



                            Facts and Procedural History
[3]   J.S., who has struggled with drug addiction since she was a teenager, has stolen

      pain pills from her grandfather. Her grandfather lives in a house in Moores

      Hill, Indiana, with several other people, including Williams. Williams knew

      about J.S.’s addiction and had previously sent text messages to her, implying

      that he would trade pain pills for sex. But J.S. was not interested in the trade.




      Court of Appeals of Indiana | Memorandum Decision 15A01-1511-CR-1899 | July 12, 2016   Page 2 of 10
[4]   On October 8, 2014, J.S. drove to her grandfather’s house for a visit. She

      brought her one-year-old son and four-year-old nephew with her. J.S. left the

      children in the car and entered the house. She found that her grandfather was

      not there. While J.S. was walking down the hallway to leave, she encountered

      Williams, who was holding a cell phone, claiming that he was videotaping her

      for stealing pain pills from her grandfather.

[5]   In the hallway, Williams tried to kiss J.S., but she told him no because the

      children were outside in the car. Williams then told her that she “wasn’t going

      nowhere until [she] went and got on the bed.” Tr. p. 132. Although J.S. kept

      asking Williams to let her go and tried to walk out of the house, Williams

      walked to the front door and locked it from the inside. While J.S. tried to make

      her way out, Williams blocked her in the dining room and told her to empty her

      pockets. After J.S. handed her driver’s license and $30 in cash to Williams, he

      punched her in the mouth, causing swelling and bruising to her lips. Ex. 49, p.

      193.


[6]   Williams then told J.S. to take off her clothes. J.S. said no. He again told her

      to take off her clothes. When J.S. started to do so, Williams pulled her pants

      and underwear the rest of the way down. He kneeled down and started licking

      her vagina. Williams then stood up, turned J.S. around, and made her bend

      over the dining-room table. Williams told J.S. that “he was going to teach [her]

      a lesson.” Tr. p. 138. Williams penetrated J.S.’s vagina from behind for about

      a minute and then tried to penetrate J.S.’s anus. At this point, J.S.’s nephew



      Court of Appeals of Indiana | Memorandum Decision 15A01-1511-CR-1899 | July 12, 2016   Page 3 of 10
       started beating on the front door. Williams allowed J.S. to put on her clothes

       and leave.

[7]    J.S. put her nephew back into her car and drove to a friend’s house. J.S. then

       called 911 and went to the hospital for a sexual-assault examination. The nurse

       collected DNA samples from J.S. and her clothes. Williams’s DNA was found

       on three cuttings of J.S.’s clothes and the anal swab. Id. at 233-39.


[8]    On the same day, a detective conducted a recorded interview with Williams.

       Williams initially denied having any physical contact with J.S. But after the

       detective indicated that he did not believe Williams, Williams admitted that he

       placed his mouth on J.S.’s vagina and had sexual intercourse with her.

       However, he claimed that it was consensual.

[9]    The State charged Williams with Count I: Level 3 felony rape (oral sex); Count

       II: Level 3 felony attempted rape (anal sex); Count III: Level 3 felony rape

       (sexual intercourse); Count IV: Level 6 felony criminal confinement; Count V:

       Level 5 felony criminal confinement (resulting in bodily injury); and Count VI:

       Class A misdemeanor battery resulting in bodily injury. The State later added

       Count VII: habitual offender. While in jail, Williams twice called a distant

       relative of J.S. and asked her to tell J.S.’s family that he would give them $4000

       if she would “drop the charges.” Id. at 275. At trial, this evidence was

       admitted over Williams’s objection.

[10]   The jury found Williams guilty of Counts I-VI. Williams then admitted that he

       was a habitual offender. Based on double-jeopardy considerations, the trial

       Court of Appeals of Indiana | Memorandum Decision 15A01-1511-CR-1899 | July 12, 2016   Page 4 of 10
       court vacated Counts IV (Level 6 felony criminal confinement) and VI (battery

       resulting in bodily injury) and merged them into Count V (Level 5 felony

       criminal confinement). The trial court found three aggravating factors: (1)

       Williams’s criminal history, including manslaughter for killing his three-month-

       old son and battery resulting in serious bodily injury to his wife; (2) Williams

       sought to pay J.S. through a third person to have the charges dropped; and (3)

       Williams destroyed property while he was in jail awaiting trial. The court

       found no mitigating factors. The court sentenced Williams to sixteen years for

       Count I, enhanced by twenty years for being a habitual offender, sixteen years

       for Count II, sixteen years for Count III, and six years for Count V. The court

       ordered Count I to be served consecutive to the other counts, for an aggregate

       sentence of fifty-two years.

[11]   Williams now appeals.



                                  Discussion and Decision
[12]   On appeal, Williams raises three issues. First, he argues that the trial court

       abused its discretion in admitting into evidence the phone calls he made from

       jail. Second, he asserts that the evidence is insufficient to support his conviction

       for criminal confinement. Third, he contends that his sentence is inappropriate.


                                          I. Admission of Evidence


[13]   Williams first argues that the trial court abused its discretion in admitting into

       evidence the phone calls he made from jail in which he offered J.S.’s family

       Court of Appeals of Indiana | Memorandum Decision 15A01-1511-CR-1899 | July 12, 2016   Page 5 of 10
       $4000 in exchange for her dropping the charges. Specifically, he argues that the

       prejudice from these phone calls outweighs the probative value because the

       phone calls “show Williams engaging in a new criminal act—bribing a

       witness,” and imply that he “acted with a guilty conscious and was trying to

       buy his way out of trouble.” Appellant’s Br. p. 18.

[14]   Even assuming that the trial court erred in admitting the phone calls into

       evidence, we find that the error was harmless. The improper admission of

       evidence is a harmless error if the conviction is supported by substantial

       independent evidence of guilt satisfying the reviewing court that there is no

       substantial likelihood the challenged evidence contributed to the conviction.

       Turner v. State, 953 N.E.2d 1039, 1059 (Ind. 2011). Here, the evidence of

       Williams’s guilt is overwhelming. J.S.’s account of the rape was consistent

       throughout her initial statements to police, her subsequent statements to the

       nurse, and her testimony at trial. Williams’s DNA was found on J.S.’s clothes

       and body, and J.S.’s testimony that Williams punched her in the mouth was

       corroborated by photographs showing swelling and bruising to her lips.

       Williams, on the other hand, was inconsistent. He initially claimed that he did

       not have any physical contact with J.S. but then changed his story and admitted

       that he had consensual sex with J.S. Because Williams’s conviction is

       supported by substantial evidence of guilt apart from evidence of the recorded

       phone calls, its admission does not require reversal.


                                         II. Sufficiency of Evidence



       Court of Appeals of Indiana | Memorandum Decision 15A01-1511-CR-1899 | July 12, 2016   Page 6 of 10
[15]   Williams next contends that the evidence is insufficient to support his

       conviction for Count V: Level 5 felony criminal confinement. When reviewing

       the sufficiency of the evidence to support a conviction, appellate courts must

       consider only the probative evidence and reasonable inferences supporting the

       conviction. Sallee v. State, No. 03S00-1504-LW-00237, 2016 WL 1051588, at *3

       (Ind. Mar. 16, 2016). It is the fact-finder’s role, not that of appellate courts, to

       assess witness credibility and weigh the evidence to determine whether it is

       sufficient to support a conviction. Id. It is not necessary that the evidence

       overcome every reasonable hypothesis of innocence. Id. Evidence is sufficient

       if an inference may reasonably be drawn from it to support the conviction. Id.


[16]   To convict Williams of Level 5 felony criminal confinement as charged here,

       the State had to prove that Williams knowingly or intentionally confined J.S.

       without her consent and that the confinement resulted in bodily injury. See Ind.

       Code § 35-42-3-3(a), (b)(1)(C); Appellant’s App. p. 23. “Confine” means to

       “substantially interfere with the liberty of a person.” Ind. Code § 35-42-3-1.

       The record shows that Williams first blocked J.S. in the hallway and told her

       that she “wasn’t going nowhere.” When J.S. kept asking Williams to let her go

       and tried to walk out of the house, Williams locked the front door from the

       inside and blocked her in the dining room. Williams then told J.S. to empty her

       pockets. After J.S. handed her driver’s license and $30 in cash to Williams,

       Williams punched her in her mouth, causing swelling and bruising to her lips.

       Notably, this happened before the rape. See McFadden v. State, 25 N.E.3d 1271,

       1274 (Ind. Ct. App. 2015) (providing that in order to prove confinement beyond


       Court of Appeals of Indiana | Memorandum Decision 15A01-1511-CR-1899 | July 12, 2016   Page 7 of 10
       the main crime charged, there must be something more than the act necessary

       to effectuate the main crime); see also Mayo v. State, 681 N.E.2d 689, 692 (Ind.

       1997) (affirming confinement conviction because the evidence “supports the

       fact that a confinement took place separate from the rape”). We find that the

       evidence is sufficient to support Williams’s conviction for criminal

       confinement.


                                      III. Appropriateness of Sentence


[17]   Last, Williams contends that his aggregate sentence of fifty-two years is

       inappropriate in light of the nature of the offenses and his character. He asks us

       to run his rape sentences concurrent, for an aggregate sentence of thirty-six

       years.1

[18]   Indiana Appellate Rule 7(B) provides that an appellate court “may revise a

       sentence authorized by statute 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.” King v. State, 894 N.E.2d 265,

       267 (Ind. Ct. App. 2008). The principal role of Rule 7(B) review “should be to

       attempt to leaven the outliers, and identify some guiding principles for trial

       courts and those charged with improvement of the sentencing statutes, but not

       to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895




       1
        Williams concedes that consecutive sentences are not prohibited under Indiana Code section 35-50-1-2(a).
       Nevertheless, Williams argues that his aggregate sentence is inappropriate because the trial court ordered
       Count I to run consecutive to the other counts.

       Court of Appeals of Indiana | Memorandum Decision 15A01-1511-CR-1899 | July 12, 2016           Page 8 of 10
       N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—the aggregate

       sentence—rather than the trees—consecutive or concurrent, number of counts,

       or length of the sentence on any individual count.” Id. Whether a sentence is

       inappropriate ultimately turns on the culpability of the defendant, the severity

       of the crime, the damage done to others, and a myriad of other factors that

       come to light in a given case. Id. at 1224.


[19]   For a Level 3 felony, Williams faced a sentencing range of three to sixteen

       years, with an advisory sentence of nine years. See Ind. Code § 35-50-2-5. For

       a Level 5 felony, Williams faced a sentencing range of one to six years, with an

       advisory sentence of three years. See Ind. Code § 35-50-2-6. The trial court

       imposed sixteen years for Count I, enhanced by twenty years for being a

       habitual offender, sixteen years for Count II, sixteen years for Count III, and six

       years for Count V. It then ordered Count I to be served consecutive to the other

       counts, for an aggregate sentence of fifty-two years.

[20]   Concerning the nature of the offenses, Williams confined and raped J.S.,

       knowing that her one-year-old son and four-year-old nephew were outside

       waiting for her.

[21]   Furthermore, nothing about Williams’s character convinces us that his sentence

       is inappropriate. As the trial court noted, Williams has convictions for

       manslaughter for killing his three-month-old son (for which he was sentenced to

       fifty years) and battery resulting in serious bodily injury to his wife (for which

       he was sentenced to eight years). He was on probation for that battery when he


       Court of Appeals of Indiana | Memorandum Decision 15A01-1511-CR-1899 | July 12, 2016   Page 9 of 10
       committed these offenses. Tr. p. 379. In addition, Williams destroyed property

       while he was in jail awaiting trial. Despite Williams’s previous contacts with

       the criminal-justice system and opportunities for rehabilitation, he has not been

       deterred from criminal activities. Williams’s character does not warrant a

       reduction in his sentence. After due consideration of the trial court’s decision,

       we cannot say that Williams has persuaded us that his aggregate sentence of

       fifty-two years is inappropriate.

[22]   Affirmed.

       Barnes, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1511-CR-1899 | July 12, 2016   Page 10 of 10
