                                                                                    Dec 30 2015, 7:47 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      R. Patrick Magrath                                        Gregory F. Zoeller
      Alcorn Sage Schwartz & Magrath, LLP                       Attorney General of Indiana
      Madison, Indiana
                                                                Jodi Kathryn Stein
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Charles S. Whitham,                                       December 30, 2015
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                39A01-1504-CR-134
              v.                                                Appeal from the Jefferson Circuit
                                                                Court
      State of Indiana,                                         The Honorable W. Gregory Coy,
      Appellee-Plaintiff.                                       Special Judge
                                                                Trial Court Cause No.
                                                                39C01-1309-FA-883



      Najam, Judge.


                                        Statement of the Case
[1]   Charles S. Whitham appeals his convictions for attempted murder, a Class A

      felony (Count I); aggravated battery, a Class B felony (Count II); criminal

      confinement, as a Class B felony (Count V); two counts of battery, each as a

      Court of Appeals of Indiana | Opinion 39A01-1504-CR-134 | December 30, 2015                          Page 1 of 15
      Class C felony (Counts III and IV); and strangulation, a Class D felony (Count

      VI). Whitham raises three issues for our review, which we consolidate and

      restate as whether the trial court abused its discretion in the admission of

      certain evidence. We also raise sua sponte whether several of Whitham’s

      convictions violated the constitutional prohibition against double jeopardy.


[2]   We affirm in part, reverse in part, and remand with instructions.


                                  Facts and Procedural History
[3]   On July 31, 2012, Whitham attacked and nearly killed his grandmother, Velma

      Brown, in her bedroom. Whitham grabbed Brown’s hands and struck her with

      her own hands across her face and on her chest. Whitham told Brown that she

      “was too old” and that she “ought to die.” Tr. at 75. Whitham then “put his

      hands on [Brown’s] neck and squeezed,” choking Brown on her bed. Id. at 76.

      Brown blacked out and at some point awoke on the floor of her bedroom but

      did not “know how long [she had] laid there.” Id. at 77. When she was able to

      get up, she went to her granddaughter Sherry’s house, and Sherry’s husband

      called the police.


[4]   On September 9, 2013, the State charged Witham with attempted murder, a

      Class A felony (Count I); aggravated battery, a Class B felony (Count II);

      criminal confinement, as a Class B felony (Count V); two counts of battery,

      each as a Class C felony (Counts III and IV); and strangulation, a Class D

      felony (Count VI). Each of the State’s charges was based on Whitham’s July 31

      attack on Brown.

      Court of Appeals of Indiana | Opinion 39A01-1504-CR-134 | December 30, 2015   Page 2 of 15
[5]   At his ensuing jury trial, the State called Brown to testify and asked her about

      times Whitham had attacked her prior to July 31. Brown testified to two prior

      incidents. First, she testified that, around the end of May 2012, Whitham had

      hit her across the left side of her head. Whitham’s hit was so hard both of

      Brown’s hearing aids fell out. Sherry later testified that she had helped Brown

      find the hearing aids after that incident. Second, Brown testified that, the day

      before the July 31 attack, Whitham had “jerked [her] out of the bed” by her

      evening gown, which tore. Id. at 64. Out of bed, Brown “slipped and hit [her]

      head on the corner of the chest of drawers,” which caused a laceration on the

      side of her head. Id. Brown used her evening gown to clean up the blood from

      that laceration. The State had that gown, which was blood-stained, admitted

      into evidence.


[6]   Later during the jury trial, the State called Dr. Dean Hawley to testify. Dr.

      Hawley is an expert in, among other things, clinical forensic medicine, which

      includes identifying strangulation injuries and determining their medical

      consequences. Dr. Hawley testified that he had reviewed photographs of the

      injuries Brown sustained on her neck that were taken immediately after the July

      31 attack. According to Dr. Hawley, those photographs demonstrated “a

      ligature strangulation mark,” that is, that the strangulation had occurred by use

      of an object rather than by hand. Id. at 359. Dr. Hawley testified that Brown’s

      injury was “so severe . . . [t]he skin [wa]s completely wiped off . . . by the

      intensity of the pressure of the ligature around the neck.” Id. Dr. Hawley

      further testified that unconsciousness in the victim likely occurred “within


      Court of Appeals of Indiana | Opinion 39A01-1504-CR-134 | December 30, 2015   Page 3 of 15
      seconds” of the strangulation, and that he had never seen an injury this severe

      in a nonfatal case. Id. at 361. When asked whether he had “an opinion as

      to . . . the source of that injury,” Dr. Hawley opined: “I’m pretty comfortable

      saying that . . . this is a wire cord wrapped around the neck.” Id. at 362.


[7]   Also during the jury trial, the State introduced into evidence the contents of a

      phone conversation Whitham had had with his mother, Cheryl, while

      Whitham was incarcerated for the instant offenses. In that conversation,

      Whitham acknowledged having Cheryl tell Brown that he would relocate to

      Alabama if Brown agreed to not cooperate with the prosecution. As Whitham

      put it, Brown was the State’s “prime witness” and “without her they can’t do

      sh*t.” State’s Ex. 40 at 5.


[8]   The jury found Whitham guilty as charged. The trial court entered its judgment

      of conviction against Whitham for each count, and it sentenced him to an

      aggregate term of thirty-six years in the Department of Correction. This appeal

      ensued.


                                      Discussion and Decision
                                   Issue One: Admission of Evidence

[9]   On appeal, Whitham challenges the trial court’s admission of Brown’s

      testimony regarding the two pre-July 31 attacks, Dr. Hawley’s testimony, and

      the jailhouse phone conversation. As our supreme court has explained:


              Generally, a trial court’s ruling on the admission of evidence is
              accorded a great deal of deference on appeal. Because the trial

      Court of Appeals of Indiana | Opinion 39A01-1504-CR-134 | December 30, 2015   Page 4 of 15
               court is best able to weigh the evidence and assess witness
               credibility, we review its rulings on admissibility for abuse of
               discretion and only reverse if a ruling is clearly against the logic
               and effect of the facts and circumstances and the error affects a
               party’s substantial rights.


       Hall v. State, 36 N.E.3d 459, 467 (Ind. 2015) (citations and quotation marks

       omitted). With that standard in mind, we turn to Whitham’s arguments on

       appeal.

                                                  Prior Incidents


[10]   Whitham first asserts that the trial court erred when it permitted Brown to

       testify to two occasions before July 31, 2012, in which Whitham attacked

       Brown. In the trial court, Whitham objected on the ground that this testimony

       violated Indiana Evidence Rule 404(b), which provides in relevant part as

       follows:

               (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
               not admissible to prove a person’s character in order to show that
               on a particular occasion the person acted in accordance with the
               character.

               (2) Permitted Uses; Notice in a Criminal Case. This evidence
               may be admissible for another purpose, such as proving motive,
               opportunity, intent, preparation, plan, knowledge, identity,
               absence of mistake, or lack of accident. On request by a
               defendant in a criminal case, the prosecutor must:

                        (A) provide reasonable notice of the general nature of any
                        such evidence that the prosecutor intends to offer at trial;
                        and

       Court of Appeals of Indiana | Opinion 39A01-1504-CR-134 | December 30, 2015     Page 5 of 15
                        (B) do so before trial—or during trial if the court, for good
                        cause, excuses lack of pretrial notice.


       The State responded to Whitham’s Rule 404(b) objection on the ground that

       Brown’s testimony regarding the prior acts was properly admissible to show

       “the relationship between the parties and the defendant’s motive, which the

       State allege[d] to be hostility.” Appellant’s App. at 282. The trial court agreed

       with the State and overruled Whitham’s objection.


[11]   As we have explained:


               [Indiana Evidence Rule 404(b)] is designed to prevent the jury
               from assessing a defendant’s present guilt on the basis of his
               propensities—the so-called “forbidden inference.” . . .

               In assessing the admissibility of 404(b) evidence a trial court must
               (1) determine that the evidence of other crimes, wrongs, or acts is
               relevant to a matter at issue other than the defendant’s propensity
               to commit the charged act and (2) balance the probative value of
               the evidence against its prejudicial effect pursuant to Indiana
               Evidence Rule 403. Rule 403 provides that “[a]lthough relevant,
               evidence may be excluded if its probative value is substantially
               outweighed by the danger of unfair prejudice, confusion of the
               issues, or misleading the jury . . . .”

               “[P]roof of the defendant’s motive to commit the charged crime
               lends itself to three legitimate theories of logical relevance.” 1
               [Edward J.] Imwinkelried, [Uncharged Misconduct Evidence] §
               5:35 (1999). “Evidence of motive may be offered to prove that
               the act was committed, or to prove the identity of the actor, or to
               prove the requisite mental state.” 22 Charles Alan Wright &
               Kenneth W. Graham, Jr., Federal Practice & Procedure § 5240
               (1978).
       Court of Appeals of Indiana | Opinion 39A01-1504-CR-134 | December 30, 2015   Page 6 of 15
               When evidence of motive is offered for those purposes,
               “[n]umerous cases have held that where a relationship between
               parties is characterized by frequent conflict, evidence of the
               defendant’s prior assaults and confrontations with the victim may
               be admitted to show the relationship between the parties and
               motive for committing the crime.” Iqbal v. State, 805 N.E.2d 401,
               408 (Ind. Ct. App. 2004) (citing Hicks [v. State], 690 N.E.2d [215,]
               222 [(Ind. 1997)]; Haggenjos v. State, 441 N.E.2d 430, 431 (Ind.
               1982)); see also 1 Imwinkelried, supra, § 4:19 (2008) (“When the
               uncharged acts of domestic violence are directed against the same
               spouse or partner alleged in the pending charge, there is little or
               no need to invoke character reasoning in order to justify the
               admission of the evidence . . . . [T]he trial judge can readily
               admit the evidence on a noncharacter motive theory; the
               uncharged acts evidence hostility toward the victim, and in turn
               that hostility may be the motive for the charged act of domestic
               violence.”).


       Embry v. State, 923 N.E.2d 1, 9 (Ind. Ct. App. 2010) (some citations omitted;

       alterations and some omissions in original), trans. denied.


[12]   We cannot say that the trial court abused its discretion when it admitted

       Brown’s testimony of the two prior attacks to show Whitham’s motive for the

       July 31 attack. The Indiana Supreme Court has made clear that “hostility is a

       paradigmatic motive for committing a crime.” Hicks, 690 N.E.2d at 222

       (quotations omitted). And where the defendant and the victim have a

       frequently hostile relationship, evidence of those prior hostilities

       “are . . . usually admissible” under Rule 404(b). Id. at 222-23. Here, Brown’s

       testimony regarding the two pre-July 31 attacks demonstrated Whitham’s

       pattern of hostility towards Brown and Whitham’s motive for the July 31

       Court of Appeals of Indiana | Opinion 39A01-1504-CR-134 | December 30, 2015   Page 7 of 15
       attacks. Thus, we cannot say that the trial court abused its discretion when it

       admitted this testimony under Rule 404(b).1 We also note that Whitham does

       not challenge the admission of this evidence under Rule 403 on appeal.

                                              Dr. Hawley’s Testimony


[13]   Whitham next asserts that the trial court improperly allowed Dr. Hawley to

       opine that Brown had been the victim of ligature strangulation, which Whitham

       characterizes as “speculation and not sufficiently reliable.” Appellant’s Br. at

       13. In essence, Whitham argues that Dr. Hawley’s opinion was unfounded

       because Brown never complained about having been strangled by a ligature;

       because Dr. Hawley never personally examined Brown; because Brown was not

       treated for ligature strangulation following the July 31 attack; and because Dr.

       Hawley could not rule out the possibility that the marks on Brown’s neck were

       caused by the prior incident in which Whitham had pulled Brown by her

       evening gown.

[14]   But Dr. Hawley did rely on photographic evidence of Brown’s injuries, and his

       qualifications as an expert were well established. As our supreme court has

       recognized, “[d]octors often testify about the injuries depicted in photographs

       even though they were not present when the pictures were taken and did not




       1
         In his brief on appeal, Whitham also asserts that it is not clear how much time passed between the prior
       events and the charged conduct, and that “the prior bad conduct . . . was not of a substantially similar
       nature” to the charged conduct. Appellant’s Br. at 11. But our supreme court has held that these concerns
       “do not render 404(b) evidence per se inadmissible.” Hicks, 690 N.E.2d at 222.

       Court of Appeals of Indiana | Opinion 39A01-1504-CR-134 | December 30, 2015                     Page 8 of 15
       personally examine the injuries depicted.” Malinski v. State, 794 N.E.2d 1071,

       1085 (Ind. 2003). Whitham’s argument on appeal simply asks this court to

       substitute its judgment for the trial court’s, which we will not do. 2 We cannot

       say that the trial court abused its discretion when it admitted Dr. Hawley’s

       testimony.

                                          Jailhouse Phone Conversation


[15]   Whitham next asserts that the trial court abused its discretion when it permitted

       the State to introduce into evidence his jailhouse phone conversation with his

       mother. According to Whitham, this evidence was both irrelevant and unfairly

       prejudicial. Evidence is relevant if “it has any tendency to make a fact more or

       less probable than it would be without the evidence” and “the fact is of

       consequence in determining the action.” Evid. R. 401. However, a court may

       exclude relevant evidence “if its probative value is substantially outweighed by

       a danger of . . . unfair prejudice.” Evid. R. 403.


[16]   We cannot say that the trial court abused its discretion when it concluded that

       the phone call was relevant. In that phone call, Whitham admitted to his

       mother that, if Brown did not cooperate with the State, he would move to

       Alabama upon his release. Again, as Whitham put it, Brown was the State’s

       “prime witness” and “without her they can’t do sh*t.” State’s Ex. 40 at 5. This




       2
         We also reject Whitham’s cursory assertion that Dr. Hawley’s testimony, “even if admissible, would tend
       to confuse the jury.” Appellant’s Br. at 14.

       Court of Appeals of Indiana | Opinion 39A01-1504-CR-134 | December 30, 2015                    Page 9 of 15
       evidence tended to show Whitham’s consciousness of guilt, which made it

       relevant. E.g., Robinson v. State, 720 N.E.2d 1269, 1272 (Ind. Ct. App. 1999).


[17]   We also reject Whitham’s argument under Rule 403. At trial, Whitham

       requested and received a partial redaction of the phone call, yet on appeal he

       asserts that various portions of that conversation that remained unredacted

       unfairly prejudiced him. Because Whitham did not object to the admission of

       the redacted version of the phone call at trial, he has failed to preserve this

       argument for our review. E.g., Griffin v. State, 16 N.E.3d 997, 1006 (Ind. Ct.

       App. 2014).

[18]   In sum, we cannot say that the trial court abused its discretion in the admission

       of evidence.


                                        Issue Two: Double Jeopardy

[19]   We sua sponte conclude that the entry of conviction for five of the State’s

       charges against Whitham violated his right to be free from double jeopardy.

       Although Whitham did not object on double jeopardy grounds at trial,

       questions of double jeopardy implicate fundamental rights and, as such, may be

       raised for the first time on appeal, or even by this court sua sponte. See Smith v.

       State, 881 N.E.2d 1040, 1047 (Ind. Ct. App. 2008). Whether convictions violate

       double jeopardy is a pure question of law, which we review de novo. Rexroat v.

       State, 966 N.E.2d 165, 168 (Ind. Ct. App. 2012), trans. denied.


[20]   Entry of conviction for both an offense and its lesser-included offenses “is

       impermissible under both state and federal double jeopardy rules.” Wentz v.

       Court of Appeals of Indiana | Opinion 39A01-1504-CR-134 | December 30, 2015   Page 10 of 15
       State, 766 N.E.2d 351, 359-60 (Ind. 2002). An offense is an inherently lesser

       included offense when it may be established by proof of the same material

       elements or less than all the material elements that define the “greater” crime

       charged. Smith, 881 N.E.2d at 1046. An offense is a factually lesser included

       offense when the charging instrument alleges “the means used to commit the

       crime charged include all of the elements of the alleged lesser included offense.”

       Id. (citations omitted). In other words, to determine if an offense is factually

       included, a trial court will look to the defendant’s conduct as charged. Harvey v.

       State, 719 N.E.2d 406, 411 (Ind. Ct. App. 1999).


[21]   Again, here the trial court entered its judgment of conviction against Whitham

       for attempted murder, a Class A felony (Count I); aggravated battery, a Class B

       felony (Count II); criminal confinement, as a Class B felony (Count V); two

       counts of battery, each as a Class C felony (Counts III and IV); and

       strangulation, a Class D felony (Count VI). Each charge arose from the July 31

       attack. As the prosecutor explained to the jury during his closing argument:


               We have charged [Whitham] with attempt[ed] murder, and we
               have to prove these elements to you[:] that he acted with the
               specific intent to kill, that he manually applied pressure to her
               neck or applied a ligature to her neck and that impeded breathing
               or blood circulation, and that that conduct constitutes a
               substantial step towards the commission of attempt[ed] murder.
               I want to talk to you about intent to kill. These injuries represent
               a violent[,] forceful assault. The injury is not an accident. You
               heard testimony from Dr. [Hawley] that within a reasonable
               degree of medical certainty a ligature had been wrapped, looped
               around her neck twice, and that is evidenced by the two
               (inaudible) that you can see. The two (inaudible) showing that

       Court of Appeals of Indiana | Opinion 39A01-1504-CR-134 | December 30, 2015   Page 11 of 15
        the ligature was looped. There’s only one reason you put a
        ligature around someone’s neck and loop it twice. That’s to kill
        them. This is not a gentle pull. You have to intend to pull that
        ligature tight enough to dig into the skin. That’s not an
        accident . . . . That is acting with a conscious objective to kill.
        [Brown] was not conscious for this portion of the attack, and
        keep that in mind because the only reason you put a ligature
        around the neck of someone who’s unconscious is to close the
        deal. . . . All of those pieces of evidence direct you to the
        conclusion that he intended to kill his grandmother that night.
        We have also charged Mr. Whitham with aggravated battery.
        We have to prove that he acted knowingly and intentionally and
        that he inflicted injury on [Brown] that created a substantial risk
        of death. Dr. Hawley testified that every strangulation creates a
        substantial risk of death. . . . We charged Mr. Whitham with
        battery by means of a deadly weapon using a ligature or his
        hands. The Court will give you an instruction on the definition
        of deadly weapon . . . but essential[ly] if an item or thing is used
        in a manner that is readily capable of inflicting serious bodily
        injury[] it can be a deadly weapon. We’ve charged him with
        battery causing serious bodily injury. When you batter someone
        and you cause them to go unconscious or you inflict
        asphyxiation on them, that’s serious bodily injury. We’ve
        charged him with criminal confinement. She was on that bed.
        You better believe she was trying to get away. Eventually, she
        was able to, but what was stopping her was [Whitham] over her
        holding her by the hands, beating her with her own hands and
        choking her and using the ligature. The serious bodily injury,
        again, unconsciousness and asphyxiation. We have charged him
        finally with strangulation, and that is applying pressure to her
        throat or neck or her mouth or nose in a manner that impeded
        the normal breathing or blood circulation.


Tr. at 458-61.




Court of Appeals of Indiana | Opinion 39A01-1504-CR-134 | December 30, 2015   Page 12 of 15
[22]   Each of Whitham’s convictions below Count I, the Class A attempted murder

       conviction, is a lesser offense to that conviction. First, this court has long held

       that aggravated battery is an inherently lesser included offense to attempted

       murder. See Meriweather v. State, 659 N.E.2d 133, 141-42 (Ind. Ct. App. 1995),

       trans. denied. Thus, we reverse Whitham’s conviction for Count II, aggravated

       battery, a Class B felony.

[23]   Second, on the facts of this case, Count V, criminal confinement, is a factually

       lesser included offense to attempted murder. The charging information alleged

       that Whitham had committed attempted murder either when he intentionally

       manually applied pressure to Brown’s neck and impeded her normal breathing

       or blood circulation or when he intentionally applied a ligature to her neck and

       impeded her normal breathing or blood circulation. Appellant’s App. at 25.

       Likewise, the charging information alleged that Whitham had committed

       criminal confinement, as a Class B felony, when he knowingly or intentionally

       confined Brown, without her consent, in a manner that resulted in serious

       bodily injury, namely, Brown’s unconsciousness or asphyxiation by manual

       and/or ligature strangulation. Id. at 26. During his closing argument, the

       prosecutor stated that the factual basis for the allegation that Whitham had

       “confined” Brown was that Whitham had been “over her holding her by the

       hands, beating her with her own hands and choking her and using the ligature.”

       Tr. at 461. As the prosecutor made clear during his closing argument, it was

       impossible for the jury to have found Whitham guilty of attempted murder

       without having found the facts underlying the confinement charge to be true.


       Court of Appeals of Indiana | Opinion 39A01-1504-CR-134 | December 30, 2015   Page 13 of 15
       See Harvey, 719 N.E.2d at 412. In other words, there was no evidence of

       confinement beyond the confinement associated with the attempted murder.

       Thus, we reverse Whitham’s conviction for Count V, criminal confinement as a

       Class B felony.


[24]   Third, Counts III and IV, Whitham’s Class C felony battery convictions, are

       also factually lesser included offenses to the attempted murder conviction. One

       of the battery charges alleged that Whitham had intentionally touched Brown in

       a rude, insolent, or angry manner by means of a deadly weapon, namely, a

       ligature or Whitham’s hands. Appellant’s App. at 25-26. The other alleged

       that Whitham had intentionally touched Brown in a rude, insolent, or angry

       manner, which resulted in serious bodily injury, namely Brown’s

       unconsciousness or asphyxiation by manual and/or ligature strangulation. Id.

       at 26. In other words, again, it was impossible for the jury to have found

       Whitham guilty of attempted murder without having found the facts underlying

       the battery charges to be true. As such, we reverse Whitham’s convictions

       under Counts III and IV, the Class C felony battery convictions.


[25]   Fourth, and finally, Whitham’s conviction for Count VI, strangulation, a Class

       D felony, is also a factually lesser included offense to the attempted murder

       conviction. This charge alleged that Whitham had intentionally applied

       pressure to the throat or neck of Brown in a manner that impeded her normal

       breathing or blood circulation. Id. at 26. As with the other charges, the facts in

       support of this allegation were included in the facts used by the State to show



       Court of Appeals of Indiana | Opinion 39A01-1504-CR-134 | December 30, 2015   Page 14 of 15
       that Whitham attempted to murder Brown. We reverse Whitham’s conviction

       on Count VI.


[26]   We briefly note that, because Whitham received concurrent sentences for each

       of his convictions, our holding that his lesser-included offenses must be vacated

       does not affect his total sentence. And Whitham’s concurrent sentences do not

       affect our double jeopardy analysis. Concurrent sentences do not cure double

       jeopardy violations. See, e.g., Bunch v. State, 697 N.E.2d 1255, 1257 (Ind. 1998);

       Carroll v. State, 740 N.E.2d 1225, 1233 (Ind. Ct. App. 2000), trans. denied.


[27]   In sum, we affirm Whitham’s conviction for Count I, attempted murder, a

       Class A felony. However, we reverse Whitham’s convictions for aggravated

       battery, a Class B felony (Count II); criminal confinement, as a Class B felony

       (Count V); battery, as a Class C felony (Count III); battery, as a Class C felony

       (Count IV); and strangulation, a Class D felony (Count VI). Each of these

       offenses was a lesser-included offense to Whitham’s conviction for attempted

       murder. Thus, we remand with instructions that the trial court vacate

       Whitham’s lesser-included offenses.


[28]   Affirmed in part, reversed in part, and remanded with instructions.


       Riley, J., and May, J., concur.




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