                                                                                   Nov 14 2013, 5:28 am

 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

DEBORAH K. SMITH                                     GREGORY F. ZOELLER
Martin & Smith                                       Attorney General of Indiana
Thorntown, Indiana
                                                     KATHERINE M. COOPER
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana



                                IN THE
                      COURT OF APPEALS OF INDIANA

LOUIS SHEPHERD, JR.,                                 )
                                                     )
       Appellant-Defendant,                          )
                                                     )
                vs.                                  )       No. 06A01-1304-CR-169
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                       APPEAL FROM THE BOONE SUPERIOR COURT
                           The Honorable Rebecca McClure, Judge
                               Cause No. 06D02-1206-FB-422


                                         November 14, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
         Louis Shepherd, Jr. appeals his conviction of Criminal Deviate Conduct,1 a class B

felony, and Criminal Confinement,2 a class D felony, presenting the following restated issues

for review:

         1.      Do Shepherd’s convictions of both class D felony criminal confinement
                 and class B felony criminal deviate conduct violate double jeopardy
                 principles?

         2.      Did the trial court err in admitting evidence under the excited utterance
                 exception to the hearsay rule?

         3.      Was the evidence sufficient to support Shepherd’s conviction of
                 criminal deviate conduct?

         4.      Is Shepherd’s sentence inappropriate in light of his character and the
                 nature of his offense?

         We affirm in part, reverse in part, and remand with instructions.

         The facts favorable to the conviction are that twenty-year-old P.G. lived with her

mother and two brothers. On June 26, 2012, P.G.’s boyfriend, Conway Manning, spent the

day with her at home. Sometime between 4:00 and 5:00 p.m. that day, P.G.’s mother left for

the evening, leaving P.G. and her eighteen-year-old brother alone at the house. Later that

afternoon, P.G.’s friend, Emily Dickerson, stopped by to visit, along with Shepherd.

Manning, P.G., and Shepherd were friends. Shepherd brought two bottles of rum, from

which everyone except Emily drank. Manning left the house sometime between midnight

and 2:00 a.m. After Manning left, Shepherd walked Emily home. He returned to P.G.’s

house at about 4:30 a.m. with his brother, Nick. By the time Shepherd arrived back at P.G.’s


1
    Ind. Code Ann. § 35-42-4-2(a)(1) (West, Westlaw current with all 2013 legislation).
2
    I.C. § 35-42-3-3 (West, Westlaw current with all 2013 legislation).

                                                     2
mother’s house, P.G. was intoxicated. Nick helped P.G. to her bedroom, where P.G. fell

asleep. When Nick left the house at about 5:00 a.m., Shepherd was on the couch and P.G.

was in her bedroom.

       Sometime later, Shepherd awakened and went into P.G.’s bedroom. There, P.G. and

Shepherd sat at the foot of her bed, talked, and watched television. At some point, Shepherd

stood up, pushed P.G. down on the bed, and removed her shorts. P.G. kicked and screamed

at Shepherd to “[g]et away”, Transcript at 350, but Shepherd persisted, holding P.G. down

while he inserted his penis into her vagina. He also told P.G. that he was going to “stick[] it

in [her] other hole.” Id. at 352. P.G. continued to struggle against Shepherd, but to no avail.

Shepherd placed his hand over her mouth and penetrated her anus with his penis. When

Shepherd was finished he got off of P.G. and lay on the bed. P.G., who experienced pain in

her anus, lay on the bed and cried for a time. P.G. then retrieved a telephone, went into the

bathroom, and locked the door. In the bathroom, she called Emily, Manning, and Nick. She

told Nick “something had happened with [Shepherd] and that [she] didn’t know what to do.”

Id. at 355. She was unable to reach Manning or Emily, and left Emily a voicemail. P.G. then

went back into the living room and tried to wake up her brother, intending to tell him what

had happened. When he awakened, however, P.G. was unable to speak to him. P.G. walked

around the house for a short while, then returned to her room, cried, and fell asleep.

       P.G. was still asleep when her mother returned home at about 8:45 a.m. P.G.’s mother

discovered Shepherd and P.G. asleep on P.G.’s bed, with Shepherd lying at the foot of the

bed and P.G. asleep at the head of the bed. P.G.’s mother awakened Shepherd and told him


                                              3
to leave. P.G.’s mother was angry because P.G. had been drinking, so P.G. did not tell her

mother what had happened with Shepherd. P.G. walked to Manning’s home, doing so with

great difficulty because of pain she experienced in her anus and vagina. P.G. arrived at the

home of Manning’s parents at about 10 a.m. She was crying and looked “like complete and

total terror” and “like she was completely lost.” Id. at 315. At first, P.G. tried to speak, but

could only cry. She eventually was able to tell him what had happened. The two fell asleep

together, and awakened at about 4 p.m. At that point, P.G. telephoned Emily and told Emily

that Shepherd had anally raped her. P.G. and Manning then returned to P.G.’s mother’s

home, where P.G. told her mother what had happened with Shepherd the night before.

       P.G. was taken to Witham Hospital at about 6 p.m. on June 27, 2012. As P.G. walked

into the hospital’s triage, the triage nurse noticed that P.G.’s gait was slow and guarded. P.G.

told personnel she had been raped and she was experiencing rectal pain. She also indicated

that she wanted to file a police report. After speaking with a detective, P.G. was transported

to St. Vincent Hospital, where she had a sexual assault examination. The examining nurse

observed that P.G. had an anal tear and vaginal abrasion.

       Shepherd was charged with rape as a class B felony, criminal deviate conduct as a

class B felony, and criminal confinement as a class D felony. Following trial, the jury

reached a hung verdict on the rape charge, but returned guilty verdicts with respect to the

criminal deviate conduct and criminal confinement charges.




                                               4
                                              1.

       Shepherd contends his conviction of both class D felony criminal confinement and

class B felony criminal deviate conduct violate double jeopardy principles. The State

concedes that Shepherd is correct.

       As set out above, the jury returned guilty verdicts on both the criminal deviate conduct

and criminal confinement charges. At sentencing, the prosecutor raised the double jeopardy

issue, stating, “[A]nd in addition I did not address the charge for Confinement I believe [sic]

has to merge because the same elements of force were used to, to get to the, the other one, so

the State was asking [sic] the Court to merge that count.” Transcript at 719. The court

agreed that Shepherd could not be sentenced on both counts and that the confinement count

“has to be vacated, technically”. Id. The record provides conflicting evidence on the

question of whether this was actually accomplished. The sentencing order reflects that the

trial court did indeed “merge” it with the conviction of criminal deviate conduct. See

Appendix to Brief of Appellant at 10 (with regard to the confinement conviction, the court

stated on its Sentencing Order, “conviction merged with [criminal deviate conduct

conviction]”). On the other hand, the abstract of judgment makes no mention of the criminal

confinement conviction, which is consistent with that conviction having been vacated. Our

Supreme Court has held, however, “[i]t is the court’s judgment of conviction and not the

abstract of judgment that is the official trial court record and which thereafter is the

controlling document.” Robinson v. State, 805 N.E.2d 783, 794 (Ind. 2004). Regrettably, the

judgment of conviction in the present case was not included in the record. The CCS entry for


                                              5
March 22, 2013, however, states: “Sentencing hearing held. Judgment of conviction entered

on Count II: Criminal Deviate Conduct, Class B Felony, and the Count III: Criminal

Confinement, Class D Felony.” Transcript at 2.

       Both Shepherd and the State agree that judgment of conviction on the confinement

count would constitute a violation of double jeopardy principles. Therefore, if the CCS entry

is accurate and the court entered conviction on the confinement verdict, it erred in doing so.

The State concludes that “remand is appropriate to correct the record and vacate Defendant’s

conviction for criminal confinement.” Brief of Appellee at 10. Perhaps, but not necessarily

so.

       In Carter v. State, 750 N.E.2d 778 (Ind. 2001), the defendant was found guilty of

three alcohol-related driving offenses: Count 1, operating a vehicle with at least ten-

hundredths percent (0.10%) of alcohol by weight in grams in one hundred (100) milliliters of

the person’s blood, a class C misdemeanor; Count 2, operating a vehicle while intoxicated, a

class A misdemeanor; and Count 3, operating a vehicle while intoxicated with a previous

conviction of operating while intoxicated within the five immediately preceding years, a class

D felony. The verdicts on Counts 1 and 2 stemmed from a jury trial. After those verdicts

were announced, the defendant waived his right to jury trial and Count 3 was tried to the

bench. The court found the defendant guilty of Count 3. For double-jeopardy reasons, the

trial court entered judgment of conviction only upon Count 3.

       Upon direct appeal, a different panel of this court affirmed the conviction but sua

sponte remanded with instructions to vacate the “conviction[s]” on Counts 1 and 2. Carter v.


                                              6
State, 134 N.E.2d 600, 605 (Ind. Ct. App. 2000), vacated, 750 N.E.2d 778. The Supreme

Court granted transfer and affirmed the resolution of the substantive issues presented by the

defendant, but reversed the order to vacate the guilty verdicts on Counts 1 and 2, deeming it

“unnecessary” to do so. Carter v. State, 750 N.E.2d at 778. The Court indicated that a jury

verdict on which the court did not enter judgment is “unproblematic ... in the double jeopardy

context.” Id. at 781. Further, the Court noted that it may do more harm than good to vacate a

jury verdict not reduced to judgment, especially if the greater offense is reversed “for reasons

specific to the incremental elements between the greater and a lesser included offense.” Id.

at n.9. This, of course, refers to the prospect of reinstating the lesser offense upon reversal of

the greater offense.

       With our Supreme Court’s discussion in Carter in mind, we remand to the trial court

in the present case with instructions to correct the judgment of conviction such that it does

not reflect a conviction on the criminal confinement charge.

                                               2.

       Shortly after the incident, P.G. telephoned Emily. Emily was not home, so P.G. left

the following voicemail message:

       (Crying) Emily, I love you, but I need you to answer as soon as you get this
       message, but, Louis did things to me and, everything that I didn’t want him to
       do and, that’s basically why I can’t describe it, but, I need to talk to you Emily
       I don’t know who else will talk to me right now. I really don’t know who else
       to talk to. I’ve tried to talk to Nick, and Conway, and nobody will talk to me.
       Emily, I need you to talk to me. I love you. Goodbye.

Witness and Exhibit List, State’s Exhibit 37. Shepherd objected to this exhibit on hearsay

grounds. The trial court admitted the exhibit under the excited utterance exception to the

                                                7
hearsay rule. Shepherd contends the trial court erred in doing so.

       Hearsay is an out-of-court statement offered in court to prove the truth of the matter

asserted in the statement. Coleman v. State, 946 N.E.2d 1160 (Ind. 2011). In order for a

hearsay statement to be admitted as an excited utterance, the following three elements must

be present: (1) A startling event occurred; (2) a statement was made by a declarant while

under the stress of excitement caused by the event; and (3) the statement relates to the event.

Fowler v. State, 829 N.E.2d 459 (Ind. 2005), cert. denied, 547 U.S. 1193 (2006). This is not

a mechanical test. Rather, the admissibility of an allegedly excited utterance turns on

whether the statement was inherently reliable because the witness was under the stress of the

event and therefore the statement was spontaneous and the product of a lack of thoughtful

reflection and deliberation. Id. “Determining whether a statement constitutes an excited

utterance is essentially a factual determination subject to a clearly erroneous standard of

review, sometimes described as the functionally equivalent standard of abuse of discretion.”

Id. at 463.

       Upon appeal, Shepherd challenges the evidence only with respect to the second

element, i.e., that the statement was made while P.G. was under the stress of excitement

caused by the rape.       “While the event and the utterance need not be absolutely

contemporaneous, lapse of time is a factor to consider in determining admissibility.”

Hardiman v. State, 726 N.E.2d 1201, 1204 (Ind. 2000). More precisely, our Supreme Court

has stated, “[a]lthough there is no rigid test of elapsed time, we have found the exception

available one half-hour after the ‘startling event’ only under extreme and continuing stress.”


                                              8
Davenport v. State, 749 N.E.2d 1144, 1149 (Ind. 2001).

       The difficulty in the present case is that we do not know with certainty how much time

elapsed between the anal rape and the phone call to Emily. Nick testified that he left P.G.’s

house at approximately 5:00 a.m. At that time, P.G. was in bed in her bedroom and Shepherd

was on the couch. P.G. lay on the bed crying for a time after the anal rape, but she did not

remember how long. She then retrieved a phone, when into the bathroom, and called Nick.

P.G. spoke with Nick at approximately 7:00 a.m.; she left the voicemail for Emily at 7:40

a.m. It is clear that she called Emily beyond the “one half-hour after the ‘startling event’”

that the Court identified in Davenport as qualifying under the excited utterance exception

“only under extreme and continuing stress.” Id. It was at least forty minutes, and almost

certainly a few minutes more than that. But, as we have indicated, there is no lapse of time

beyond which the excited utterance exception is unavailable. Rather, “the heart of the

inquiry is whether the statement is inherently reliable because the declarant was incapable of

thoughtful reflection.” Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996).

       Nick testified that when he spoke with P.G. at 7:00 a.m., she was crying and sounded

as if she was “fairly drunk.” Transcript at 553. According to Manning, P.G. looked “like

complete and total terror” and was crying and unable to speak even three hours later. Id. at

315. Nick’s description of the way P.G. sounded at 7:00 a.m. would also accurately describe

the way she sounded in the voicemail left for Emily at 7:40 a.m. The exact time of the anal

rape could not be established, and therefore the precise lapse of time between that event and

the voicemail is uncertain, although it is beyond dispute that it was at least forty minutes.


                                              9
Nonetheless, P.G.’s psychological state, as reflected in her voice, suggests that she was not

capable of thoughtful reflection and deliberation at the time she left the voicemail for Emily,

and therefore the evidence was admissible under the excited utterance exception.

       Moreover, even if the evidence was improperly admitted, reversal is not warranted.

“[E]rrors in the admission of evidence are to be disregarded as harmless error unless they

affect the substantial rights of a party.” VanPatten v. State, 986 N.E.2d 255, 267 (Ind. 2013)

(quoting McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996)); see also Ind. Trial Rule 61. “In

determining whether error in the introduction of evidence affected the defendant’s substantial

rights, this Court must assess the probable impact of the evidence upon the jury.” Id.

(quoting McClain v. State, 675 N.E.2d at 331). “The improper admission of evidence is

harmless error when the conviction is supported by substantial independent evidence of guilt

as to satisfy the reviewing court that there is no substantial likelihood that the questioned

evidence contributed to the conviction.” Cook v. State, 734 N.E.2d 563, 569 (Ind. 2000).

       P.G. testified that Shepherd anally raped her.           A subsequent sexual-assault

examination revealed that she had an anal tear that was consistent with her claim of forced

anal sex. Medical personnel also noted that stool had leaked from P.G.’s rectum, which was

consistent with injury to her anal sphincter. Moreover, Emily testified that P.G. later told her

that Shepherd had anally raped P.G. In short, P.G.’s claim was corroborated by her physical

injuries and her statements to Emily. Thus, the conviction was supported by substantial

independent evidence of guilt and we are satisfied that there is no substantial likelihood that

the alleged hearsay evidence contributed to the conviction.


                                              10
                                              3.

       Shepherd contends the evidence was insufficient to support his conviction of criminal

deviate conduct. Our standard of reviewing challenges to the sufficiency of the evidence

supporting a criminal conviction is well settled.

       When reviewing a challenge to the sufficiency of the evidence underlying a
       criminal conviction, we neither reweigh the evidence nor assess the credibility
       of witnesses. The evidence—even if conflicting—and all reasonable inferences
       drawn from it are viewed in a light most favorable to the conviction. “[W]e
       affirm if there is substantial evidence of probative value supporting each
       element of the crime from which a reasonable trier of fact could have found
       the defendant guilty beyond a reasonable doubt.” Davis v. State, 813 N.E.2d
       1176, 1178 (Ind. 2004). A conviction can be sustained on only the
       uncorroborated testimony of a single witness, even when that witness is the
       victim.

Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012) (some citations omitted).

       According to I.C. § 35-42-4-2 and Ind. Code Ann. § 35-31.5-2-94 (West, Westlaw

current with all 2013 legislation), in order to obtain a conviction for criminal deviate conduct

on the facts of this case, the State was required to prove that Shepherd knowingly or

intentionally compelled P.G. by force or imminent threat of force to commit an act involving

his penis and her anus. P.G. testified that Shepherd penetrated her anus with his penis,

against her will. That evidence was sufficient, by itself, to prove the elements of criminal

deviate conduct. Moreover, P.G.’s testimony was corroborated by other evidence, as set out

above. The evidence was sufficient to support the conviction for criminal deviate conduct.

                                              4.

       Shepherd contends his sentence was inappropriate in light of his character and the

nature of his offense. We note, however, that “revision of a sentence under Indiana

                                              11
Appellate Rule 7(B) requires the appellant to demonstrate that his sentence is inappropriate in

light of both the nature of his offenses and his character.” Williams v. State, 891 N.E.2d 621,

633 (Ind. Ct. App. 2008) (emphasis in original); see App. R. 7(B). Shepherd’s argument on

this issue focuses entirely on the validity of the aggravating and mitigating circumstances

found by the trial court. He presents no argument whatsoever, much less cogent argument,

concerning the inappropriateness of his sentence in light of the nature of his offense.

Therefore, the argument is waived. Williams v. State, 891 N.E.2d 621; see App. R.

46(A)(8)(a).

       Judgment affirmed in part, reversed in part, and remanded with instructions.

BAKER, J., and VAIDIK, J., concur.




                                              12
