MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Mar 15 2016, 8:40 am
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
Corey L. Scott                                          Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Jodi Kathryn Stein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Johnny Rice,                                            March 15, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1506-CR-614
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Mark Stoner,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G06-1409-F1-43880



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-614 | March 15, 2016      Page 1 of 9
                                  Case Summary and Issue
[1]   Following a jury trial, Johnny Rice was convicted of Level 1 felony rape, Level

      3 felony rape, Level 6 felony strangulation, and Class A misdemeanor battery.

      Rice appeals, raising the sole issue of whether the evidence is sufficient to

      sustain his convictions. Concluding the evidence is sufficient, we affirm.


                                 Facts and Procedural History
[2]   The facts most favorable to the verdict1 reveal that Rice and M.S. were

      romantically involved and shared an apartment. On the evening of September

      10, 2014, Rice picked up M.S. from work, and they returned to their apartment.

      At some point before dinner, the couple left the apartment, drove to a liquor

      store, and then drove to Rice’s mother’s home. M.S. stayed in the car while

      Rice conducted his business. Once they returned home, a dispute arose while

      M.S. was cooking dinner. Rice berated M.S. and smacked M.S. on the side of

      her face with his open hand.


[3]   Later that evening, Rice instructed M.S. to remove her clothes and perform oral

      sex on him. M.S. complied, but Rice was dissatisfied with her performance.

      He said, “[i]t don’t feel good” and “[y]ou’re not doing it right” over and over,

      hitting her head each time. Transcript at 55. Rice told M.S. that he would




      1
        We note that Rice did not present the Statement of Facts in his brief in accordance with the applicable
      standard of review as required by Indiana Appellate Rule 46(A)(6)(b), instead presenting only his version of
      the facts that was rejected by the jury.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-614 | March 15, 2016               Page 2 of 9
      continue to hit her “until it starts feeling better.” Id. at 55-56. Eventually,

      M.S.’s face swelled, and she began to bleed. Rice ordered M.S. to clean herself

      up, but when she did not return quickly enough, he dragged her out of the

      bathroom by her hair and pushed her against the wall of the bedroom. M.S.

      slid down the wall to the floor, and Rice grabbed her neck with one hand to

      pick her up. This caused M.S. to have trouble breathing and black out

      momentarily.


[4]   Rice, who was drinking an alcoholic beverage, forced M.S. to continue

      performing oral sex and told M.S. that if he finished his drink prior to

      ejaculating, he would “beat [her] ass.” Id. at 60. When Rice finished his drink,

      he pushed M.S. to the floor and began stomping on her face with his foot. He

      was wearing shoes at the time. Rice then told M.S. to get in the shower and

      wash off the blood. When M.S. finished showering, Rice reclined on the bed

      and instructed her to perform oral sex yet again. M.S. complied until he fell

      asleep, at which time she grabbed her clothes and keys and ran from the

      apartment. She drove to the next apartment building and eventually fell asleep.

      M.S. woke the next morning when she heard a woman in the parking lot. At

      M.S.’s request, the woman called 911.


[5]   Indianapolis Metropolitan Police Department (“IMPD”) Officer Mark Ayler

      responded to the call. Officer Ayler observed that M.S. appeared badly beaten.

      An ambulance took M.S. to the hospital, where she was diagnosed with

      comminuted fractures of three bones around her eyes and nose. The emergency

      room physician who treated M.S. described the injuries to her face as being like

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-614 | March 15, 2016   Page 3 of 9
      “dropping a plate on the floor and having it crack into many pieces.” Id. at 154.

      The injuries to the bones around her eyes required surgery. In addition, she had

      bruising around her neck, shoulders, and knees. Her soft palate, tongue, and

      inner cheek were raw. Her face was extremely swollen, such that she was

      unable to see. She also had lacerations on her lips, forehead, and over one eye.


[6]   With M.S.’s permission, Officer Ayler gained access to the apartment and

      found Rice alone in the living room. Rice was belligerent and uncooperative.

      Officer Ayler immediately noticed a pair of shoes with blood around the edges

      in the hallway leading to the bedroom. When he entered the bedroom, he saw

      “a large amount of blood on the walls, the bed, the carpet, the TV stand, on the

      TV.” Id. at 35. There was also blood on the bedroom ceiling, in the bathroom,

      and in the kitchen. Serological samples were not taken from every item and

      surface in the apartment, but investigators took representative samples from

      every room. Forensic analysis confirmed the samples were M.S.’s blood.


[7]   Rice was taken into custody and gave a statement to IMPD Detective Michelle

      Floyd. Rice claimed a woman named “Tiff” came to the apartment and that

      she and M.S. had gotten into a fight. Id. at 324. He also told Detective Floyd

      that he was looking forward to M.S. returning home so M.S. could clean up the

      mess she had made. Rice gave Detective Floyd a phone number he claimed

      belonged to “Tiff,” but Detective Floyd was unable to locate “Tiff.” Detective

      Floyd observed no injuries on Rice’s hands.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-614 | March 15, 2016   Page 4 of 9
[8]   The State charged Rice with Level 1 felony rape, Level 3 felony rape, Level 5

      felony battery, Level 6 felony strangulation, and Class A misdemeanor battery. 2

      At trial, M.S. and various medical, forensic, and law enforcement officials

      testified for the State. Rice took the stand in his own defense and testified that

      “Tiff” caused all of M.S.’s injuries. The jury found Rice guilty of all charges.

      The trial court entered judgment of conviction on the two rape counts,

      strangulation, and misdemeanor battery, and sentenced Rice to thirty-six years

      in the Department of Correction, with four years suspended to probation. Rice

      now appeals his convictions.



                                 Discussion and Decision
                                      I. Standard of Review
[9]   “When reviewing the sufficiency of the evidence to support a conviction, we

      consider only the probative evidence and reasonable inferences supporting the

      verdict.” Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct. App. 2013), trans. denied.

      It is the fact-finder’s role to assess witness credibility and weigh the evidence.

      Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). Accordingly, when confronted

      with conflicting evidence on appeal, we must consider it most favorably to the

      judgment. Id. We will affirm a conviction unless no reasonable fact-finder

      could find the elements of the crime proven beyond a reasonable doubt. Id. at




      2
       Charges of Level 6 felony intimidation and Class B misdemeanor battery by bodily waste were dismissed
      prior to trial.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-614 | March 15, 2016          Page 5 of 9
       147. The evidence need not overcome every reasonable hypothesis of

       innocence. Id.


                              II. Sufficiency of the Evidence
[10]   At the outset, Rice concedes that M.S. was badly beaten and suffered serious

       injuries as a result. Nonetheless, Rice contends the State’s evidence fails to

       prove that he is responsible for M.S.’s injuries. Rice argues the evidence does

       not support the jury’s verdicts for several reasons.


[11]   First, Rice argues M.S. was not compelled by force or fear because M.S.

       admitted she consensually performed oral sex on him and did not flee when

       they were running errands. See Ind. Code § 35-42-4-1(a)(1) (defining rape as

       occurring when a person knowingly or intentionally causes another person to

       perform or submit to sexual conduct when “the other person is compelled by

       force or imminent threat of force”). Although M.S. did admit she initially

       performed oral sex on Rice willingly, she also testified that she continued once

       he began hitting her only because she was afraid of him. As to M.S.’s

       opportunity to flee, they left the apartment prior to the acts of violence, and

       M.S. testified things between them were “relatively fine” at that point. Tr. at

       69.


[12]   Second, Rice argues he could not have beaten M.S. as she claims because the

       police did not observe blood on Rice, and he appeared to have no injuries.

       However, Rice was alone in the apartment for several hours after the assault,

       and he easily could have washed away any blood during that time. Moreover,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-614 | March 15, 2016   Page 6 of 9
       M.S. testified Rice hit her with an open hand and stomped on her face with his

       feet while wearing shoes. Neither action was likely to injure Rice.


[13]   Third, Rice contends the State should have disproven the existence of “Tiff” by

       testing all of the DNA evidence at the scene. “As a practical matter,” Rice

       argues, “the State could have all but eliminated the probability that a third

       person, namely [Tiff], was present on the night in question.” Brief of

       Appellant/Defendant at 8. But “as a practical matter,” the State could not test

       every single blood drop, stain, or smear in the apartment. As the crime scene

       specialist testified, “it was a heavy blood scene event,” tr. at 137, with blood on

       all the walls in the bedroom, plus the floor and ceiling, as well as in the

       bathroom, hallway, and kitchen. It was therefore “not actually physically

       possible” to test everything. Id. at 140. Instead, representative samples were

       taken from all areas of the apartment where it appeared there was blood, and

       every one of those samples came back positive for M.S.’s blood and no one

       else’s. Nor could the State reasonably conduct DNA testing of every surface in

       the apartment to eliminate the presence of a third person. Rice gave the police

       a phone number he said belonged to “Tiff,” but the police were unable to locate

       her through this number. Even if there had been evidence of a third person,

       there would be no way to prove that it was from “Tiff,” let alone from the night

       in question.


[14]   Finally, Rice contends his conduct following the incident is inconsistent with

       guilt. Rice characterizes his actions as cooperative, in that he gave a statement

       to police and did not attempt to cover up by cleaning the crime scene.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-614 | March 15, 2016   Page 7 of 9
       However, Officer Ayler characterized Rice during their initial encounter as

       belligerent and “not very cooperative.” Id. at 29. And Rice told Detective

       Floyd that he did not clean up the apartment because he expected M.S. to

       return and clean up the mess she had made.


[15]   Rice’s argument is a classic example of a request for this court to reweigh the

       evidence and judge the credibility of the witnesses for itself. As stated above,

       these evaluations are for the trier of fact and not this court. “In essence, we

       assess only whether the verdict could be reached based on reasonable inferences

       that may be drawn from the evidence presented.” Baker v. State, 968 N.E.2d

       227, 229 (Ind. 2012) (emphasis in original). The evidence recited above

       provides a sufficient factual basis upon which a reasonable trier of fact could

       infer that Rice committed the crimes for which he was convicted.

       Notwithstanding Rice’s testimony presenting a different version of the incident,

       M.S. testified Rice forced her to perform oral sex for hours, repeatedly hit and

       threatened her, stomped on her face, and grabbed her neck so firmly that she

       momentarily lost consciousness. This evidence is sufficient to support Rice’s

       convictions.



                                              Conclusion
[16]   The evidence presented at trial is sufficient to support Rice’s convictions. We

       therefore affirm.


[17]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-614 | March 15, 2016   Page 8 of 9
Barnes, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-614 | March 15, 2016   Page 9 of 9
