MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Aug 07 2018, 6:23 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bruce W. Graham                                          Curtis T. Hill
Graham Law Firm P.C.                                     Attorney General
Lafayette, Indiana
                                                         George P. Sherman
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
       COURT OF APPEALS OF INDIANA

Diamonte William Baker,                                  August 7, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1711-CR-2640
        v.                                               Appeal from the Tippecanoe Superior
                                                         Court
State of Indiana,                                        The Honorable Donald L. Daniel,
Appellee-Plaintiff                                       Senior Judge
                                                         Trial Court Cause No.
                                                         79D02-1701-F1-1



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1711-CR-2640 | August 7, 2018         Page 1 of 10
                                             Case Summary
[1]   Diamonte William Baker appeals his convictions for level 1 felony attempted

      murder, level 5 felony domestic battery by means of a deadly weapon, level 6

      felony intimidation, and class A misdemeanor false informing. He asserts that

      the trial court committed fundamental error in instructing the jury. He also

      asserts that the trial court abused its discretion in imposing a sanction for his

      contempt of court, and further that his convictions violate double jeopardy. We

      conclude that the trial court did not commit fundamental error and that Baker

      has waived any error regarding the trial court’s contempt sanction. However,

      because we conclude that his domestic battery conviction must be vacated to

      remedy a double jeopardy violation, we remand to the trial court with

      instructions to vacate that conviction and sentence. In all other respects, we

      affirm.


                                 Facts and Procedural History
[2]   Baker met Stephanie Miller in September 2016. They began a romantic

      relationship, and Baker moved into Miller’s apartment the following month.

      On January 22, 2017, after the pair had an argument, Miller tried to exit the

      apartment. However, Baker blocked her by standing in front of the door.

      When Miller turned her back on Baker, he stabbed her in the back with “a

      survival knife.” Tr. Vol. 3 at 21. He stabbed her in the middle of the spine, and

      it hurt “really bad.” Id. When Miller realized that Baker had stabbed her, she

      asked him why he would do that, but Baker “didn’t really say anything.” Id.

      Because there was a lot of blood and believing that she might bleed to death,

      Court of Appeals of Indiana | Memorandum Decision 79A02-1711-CR-2640 | August 7, 2018   Page 2 of 10
      Miller immediately told Baker to call 911. Baker did nothing other than to

      continue to block the doorway.


[3]   Miller tried to lay on the floor to reduce her blood loss, and she also tried to call

      911 using her own phone, but “too much blood was preventing [her phone]

      from working.” Id. at 22. She then began “scrambling around” the kitchen to

      find something to “cauterize” her wound because she could feel “a lot” of blood

      coming out. Id. When she knelt on the floor by a blanket, Baker came up

      behind Miller and used the knife to slice the left side of her throat. Id. Baker

      said to Miller, “[B]itch, I’m not trying to help you, I’m trying to kill you.” Id. at

      23. Baker took the blanket and tried to suffocate her, but she pushed him away,

      and then he pushed her to the ground.


[4]   Miller pleaded with Baker to help her, telling him, “I’m gonna die. I’m

      bleeding to death.” Id. at 24. Baker began pacing back and forth “like he was

      thinking … like what to do.” Id. Baker came up with the story that they would

      “say somebody broke in.” Id. Miller agreed with the plan so that she could get

      help. Baker used his knife to put three superficial cuts on his stomach so that it

      would look like he was also attacked.


[5]   Miller and Baker ran outside and began yelling for help, but it seemed like none

      of their neighbors were home. Shortly thereafter, one of their neighbors, Cheryl

      Revels, pulled up in her car. Revels, who is a nurse, went with Miller and

      Baker back into their apartment and helped Miller until police and an

      ambulance arrived. When police arrived and asked Miller what happened,


      Court of Appeals of Indiana | Memorandum Decision 79A02-1711-CR-2640 | August 7, 2018   Page 3 of 10
      Miller told them, “Somebody broke in, I got stabbed.” Id. at 28. Baker led the

      investigating officers to believe that a drug dealer, Terry Wheatley, was the

      stabbing suspect. Because Baker was nearby, Miller was afraid to tell the police

      the truth. Officers immediately sought out Wheatley and quickly determined

      that he had nothing to do with the incident.


[6]   Meanwhile, Miller was transported by ambulance to a hospital in Lafayette. As

      soon as she was alone with other police officers, she revealed that Baker had

      stabbed her. The doctor who treated Miller observed that she had “two stab

      wounds plus some abrasions [and] bruises.” Id. at 58. The doctor surmised

      that neither stab wound could have been self-inflicted. The stab wound to

      Miller’s back, in particular, was inflicted with great force and, if left untreated,

      created a substantial risk of death. Id. at 59. Police subsequently executed a

      search warrant on Miller’s apartment and found a bloody knife, blanket, and

      seat cushion. Both Miller’s and Baker’s DNA were found on the knife and the

      blanket.


[7]   When Baker was informed that he was being charged with multiple felonies, he

      yelled at an officer, “[Y]ou fat ass b**ch, I’m gonna beat your ass.” Tr. Vol. 2

      at 185. Baker proceeded to punch a plexiglass window. During his police

      interview, Baker told police that at the time of the incident, he and Miller were

      fighting, that she was acting aggressively and tried to stab him, and that he

      inadvertently stabbed her in the back and neck during a struggle for the knife.

      Baker admitted that it was his idea to blame Wheatley for the incident. While

      in jail, Baker telephoned Miller. Miller was very upset because she had heard

      Court of Appeals of Indiana | Memorandum Decision 79A02-1711-CR-2640 | August 7, 2018   Page 4 of 10
      that Baker had blamed the incident on her and said that she had tried to stab

      him. Baker denied telling the police that she had tried to stab him and told her

      that he thought the authorities were just trying to split them up.


[8]   The State charged Baker with nine felonies. A jury found Baker guilty as

      charged. The trial court merged several of the counts and entered judgment of

      conviction on four of the counts, including level 1 felony attempted murder,

      level 5 felony domestic battery by means of a deadly weapon, level 6 felony

      intimidation, and class A misdemeanor false informing. The court sentenced

      Baker to forty years for attempted murder, six years for domestic battery, two

      years for intimidation, and six months for false informing, to be served

      concurrently, resulting in a forty-year aggregate sentence. This appeal ensued.


                                     Discussion and Decision

       Section 1 – The trial court did not commit fundamental error
                           in instructing the jury.
[9]   Baker first asserts that the trial court committed fundamental error in reading to

      the jury the State’s tendered jury instruction number one, which provided,

      “[T]he uncorroborated testimony of a single witness, even if that witness is the

      victim, is sufficient to sustain a conviction.” Appellant’s App. Vol 2 at 107,

      148. The State acknowledges that in Ludy v. State, 784 N.E.2d 459 (Ind. 2003),

      our supreme court determined that this type of instruction should not be given

      because it unfairly focuses the jury’s attention on and highlights a single

      witness’s testimony; it presents a concept used in appellate review that is


      Court of Appeals of Indiana | Memorandum Decision 79A02-1711-CR-2640 | August 7, 2018   Page 5 of 10
       irrelevant to the jury’s role as factfinder; and the technical term

       “uncorroborated” may mislead or confuse the jury. Id. at 461. 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]   Baker concedes that his counsel failed to object to the instruction, and such

       failure normally results in waiver and precludes appellate review unless

       fundamental error has occurred. Baker v. State, 948 N.E.2d 1169, 1178 (Ind.

       2011). The question, then, is whether the instruction was fundamentally

       erroneous. The fundamental error doctrine is meant to permit appellate courts

       a means to correct the most egregious and blatant trial errors that otherwise

       would have been procedurally barred, “not to provide a second bite at the apple

       for defense counsel who ignorantly, carelessly, or strategically fail to preserve

       an error.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014). Indeed, our supreme

       court very recently explained,


               An error is fundamental, and thus reviewable on appeal, if it
               “made a fair trial impossible or constituted a clearly blatant
               violation of basic and elementary principles of due process
               presenting an undeniable and substantial potential for harm.”
               These errors create an exception to the general rule that a party’s
               failure to object at trial results in a waiver of the issue on appeal.
               This exception, however, is “extremely narrow” and
               encompasses only errors so blatant that the trial judge should
               have acted independently to correct the situation.


       Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018) (citations omitted).

       Court of Appeals of Indiana | Memorandum Decision 79A02-1711-CR-2640 | August 7, 2018   Page 6 of 10
[11]   We conclude that the challenged instruction did not rise to the level of

       fundamental error. Instructional errors are rendered harmless where a

       conviction is clearly sustained by the evidence and the instruction would not

       likely have impacted the jury’s verdict. Randolph v. State, 802 N.E.2d 1008, 1013

       (Ind. Ct. App. 2004), trans. denied. Baker argues that “no one is disputing that

       Miller was stabbed” but there were “two versions of what occurred” and the

       erroneous instruction told the jury to accept Miller’s version in determining that

       he intended to kill her when he stabbed her. Appellant’s Br. at 18. However,

       despite the erroneous emphasis on uncorroborated victim testimony, there was

       ample evidence in the record that corroborated Miller’s version of events as

       opposed to Baker’s claim that the wounds were inflicted inadvertently during a

       struggle. Miller’s treating doctor testified that the wound to her back was six

       inches deep and that it would have required a “significant” amount of force,

       such as “a full swing of the arm.” Tr. Vol. 3 at 61. Similarly, the doctor

       testified that the throat wound was six inches long and three inches deep and

       was inflicted from the side or behind. This testimony is consistent with Miller’s

       version of events and totally inconsistent with Baker’s claims. See Henley v.

       State, 881 N.E.2d 639, 652 (Ind. 2008) (noting that specific intent to kill for

       attempted murder “may be inferred from the deliberate use of a deadly weapon

       in a manner likely to cause death or serious injury.”). In light of the testimony

       and other evidence presented at trial, we find it unlikely that the erroneous




       Court of Appeals of Indiana | Memorandum Decision 79A02-1711-CR-2640 | August 7, 2018   Page 7 of 10
       instruction impacted the jury’s verdict. We therefore conclude that the

       instruction did not constitute fundamental error.1


           Section 2 – Baker has waived any error regarding the trial
                  court’s imposition of a contempt sanction.
[12]   Upon motion by the State, the trial court issued an order for Baker, who was in

       jail awaiting trial, to provide the State a sample for DNA testing. After Baker

       twice refused to submit to a buccal swab when requested by law enforcement

       pursuant to the court order, the State filed a petition for contempt. Following a

       hearing held fifteen days after the original court order, the trial court found

       Baker in contempt for failing to comply with the court order and ordered as a

       sanction that Baker be denied good time credit for the fifteen days of pretrial

       incarceration. During sentencing following trial, the court calculated Baker’s

       credit time accordingly.


[13]   On appeal, Baker contends that the trial court’s imposition of this contempt

       sanction constituted an abuse of discretion. However, Baker has waived our

       review of the propriety of the sanction because he failed to object to the trial

       court’s decision in this regard at any time during court proceedings.


                To preserve a claim for review, counsel must object to the trial
                court’s ruling and state the reasons for that objection. This gives



       1
         Baker briefly mentions the State’s instruction number three, but fails to adequately develop any argument as
       to how the instruction was erroneous. Accordingly, this issue is waived. See Ind. Appellate Rule 46(A)(8)(a)
       (requiring argument be supported by cogent reasoning with citations to authority); Cooper v. State, 854 N.E.2d
       831, 834 n.1 (Ind. 2006) (failure to present a cogent argument or citation to authority constitutes waiver of
       issue for appellate review).

       Court of Appeals of Indiana | Memorandum Decision 79A02-1711-CR-2640 | August 7, 2018            Page 8 of 10
                  the court an opportunity to cure the alleged error, which, in turn,
                  can result in enormous savings in time, effort and expense to the
                  parties and the court, including avoiding an appeal and retrial. If
                  the trial court overrules the objection, the appellate court benefits
                  from a sufficiently-developed record on which to base its
                  decision. A party’s failure to object to an alleged error at trial
                  results in waiver, also known as procedural default or forfeiture.
                  While there are certain exceptions to this rule, it’s designed to
                  promote fairness by preventing a party from sitting idly by,
                  ostensibly agreeing to a ruling only to cry foul when the court
                  ultimately renders an adverse decision.


       Durden, 99 N.E.3d at 651 (citations and quotation marks omitted). Baker sat

       idly by during the contempt hearing when the trial court announced its

       intention to deny him fifteen days of good time credit as a contempt sanction.

       He similarly did not draw the court’s attention to any error during the

       sentencing hearing, even after the State specifically referenced the sanction.

       Indeed, when asked by the trial court for input regarding the contempt sanction

       and its effect on the good time credit calculation, Baker’s counsel indicated that

       he agreed with the State. Tr. Vol. 3 at 172. Under the circumstances, Baker

       has waived our review of this issue.2


              Section 3 – Baker’s convictions for attempted murder and
                      domestic battery violate double jeopardy.
[14]   As a final matter, Baker complains that, in addition to attempted murder, the

       trial court “entered judgment of conviction” on five counts of battery and one



       2
           Baker makes no argument that the court’s contempt sanction constituted fundamental error.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1711-CR-2640 | August 7, 2018           Page 9 of 10
       count of criminal recklessness, and that “double jeopardy prohibits

       simultaneous convictions thereon.” Appellant’s Br. at 23. Our review of the

       trial court’s sentencing order and abstract of judgment reveals that the trial

       court merged four of the battery convictions as well as the criminal recklessness

       conviction into the attempted murder conviction, and specifically vacated those

       lesser convictions. Therefore, we need only address Baker’s assertion that his

       convictions for attempted murder and domestic battery by means of a deadly

       weapon, as alleged in Count IV, violate double jeopardy, because they both are

       premised upon his same act of stabbing Miller. The State concedes that they

       do, and we summarily agree.3 Accordingly, we remand to the trial court with

       instructions to vacate Baker’s conviction and sentence for domestic battery.4


[15]   Affirmed and remanded.


       Bailey, J., and Brown, J., concur.




       3
         Citing common law double jeopardy rules, including the one which prohibits “[c]onviction and punishment
       for a crime which consists of the very same act as another crime for which the defendant has been convicted
       and punished,” see Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002), the State says, “Here, it is apparent
       that the jury could have relied on the stabbing of Miller alleged in Count I to also find that Baker touched
       Miller with a knife in a rude, insolent, or angry manner as alleged in Count IV. Therefore, the State does not
       oppose Baker’s request for the conviction on Count IV to be vacated.” Appellee’s Br. at 21 (citation
       omitted).
       4
        Because Baker’s sentence for domestic battery was ordered to be served concurrent with his sentence for
       attempted murder, his aggregate sentence of forty years remains unchanged.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1711-CR-2640 | August 7, 2018           Page 10 of 10
