MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            Aug 25 2015, 8:47 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
Michael R. Fisher                                        Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Harold Baker,                                            August 25, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1412-CR-889
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc Rothenberg,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No. 49G02-
                                                         1402-FB-6044



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015   Page 1 of 13
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Harold Baker (Baker), appeals his conviction for rape, a

      Class B felony, Ind. Code § 35-42-4-1(a)(1) (2013); criminal confinement, a

      Class D felony, I.C. § 35-42-3-3(a)(1) (2013); possession of a narcotic drug, a

      Class D felony, I.C. § 35-48-4-6(a) (2013); battery resulting in bodily injury, a

      Class A misdemeanor, I.C. § 35-42-2-1(a)(1)(A) (2013); interference with the

      reporting of a crime, a Class A misdemeanor, I.C. § 35-45-2-5(1) (2013); and

      possession of marijuana, a Class A misdemeanor, I.C. § 35-48-4-11(1) (2013).


[2]   We affirm.


                                                    ISSUES

[3]   Baker raises two issues on appeal, which we restate as follows:

      (1) Whether the State presented sufficient evidence beyond a reasonable doubt

      to support Baker’s conviction for rape; and

      (2) Whether Baker’s conviction and sentences for rape and criminal

      confinement violate the constitutional prohibition against double jeopardy.


                           FACTS AND PROCEDURAL HISTORY

[4]   In 2006, Baker and B.A. began dating and were involved in an on-again/off-

      again romantic relationship for the next eight years. On February 4, 2014,

      Baker spent the evening at B.A.’s house in Indianapolis, Marion County,

      Indiana. At some point, Baker expressed interest in engaging in sexual

      intercourse with B.A., but B.A. declined. That night, B.A. slept alone in her

      bedroom and Baker slept in the bathroom.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015   Page 2 of 13
[5]   The next day, B.A. woke up at approximately 2:00 p.m. When she emerged

      from her bedroom, Baker was sitting on the couch in the living room. She

      observed that he was drinking whiskey and appeared to be “in a foul mood.”

      (Tr. p. 74). Baker reiterated his desire for sexual intercourse, and B.A. again

      refused. As B.A. walked into the kitchen, Baker, who was “complaining about

      not having sex[,]” followed and pushed her down to the floor. (Tr. p. 105).

      B.A. tried to stand, but Baker “hit [her] on the side of the face and knocked

      [her] back down.” (Tr. p. 75). Baker then rolled B.A. onto her stomach and

      held her down by the back of her neck as he laid down on top of her and

      “yanked up [her] nightgown and [attempted] to jam his hand into [her] vagina.”

      (Tr. p. 78). B.A., who was scared and struggling to breathe under Baker’s body

      weight, then stated, “If this is what you want, then let’s go in the bedroom.”

      (Tr. p. 79). At her suggestion, Baker stood, and the two went into B.A.’s

      bedroom. B.A. positioned herself “on all fours” on the bed because she “didn’t

      want to look at him.” (Tr. p. 80). Baker applied some lubricant and inserted

      his penis into B.A.’s vagina. After a few minutes, Baker stopped the intercourse

      and went to the bathroom to smoke a cigarette. B.A. did not know whether

      Baker ejaculated.


[6]   B.A. went to the bathroom to confront Baker about what had just happened.

      The two began arguing, and Baker punched B.A. in the side of her face using a

      closed fist. B.A. stated that she was going to call the police, so Baker

      “chopp[ed] on her arm” until he could grab the cell phone out of her hand. (Tr.

      p. 83). During this struggle, B.A. scratched Baker’s neck. Baker held the phone


      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015   Page 3 of 13
      over B.A.’s head and threatened to break it unless she forgave him. Once B.A.

      agreed to forgive him, Baker returned her cell phone. B.A. then texted a friend

      and asked her to call the police. A few minutes later, Baker rejoined B.A. in the

      living room and informed her that he was in possession of her loaded, semi-

      automatic handgun, which she normally kept hidden in her dresser drawer.

      B.A. reported that Baker pointed the gun at her and subsequently ejected the

      magazine and ensured the chamber was empty. Despite B.A.’s pleas, Baker

      refused to give her the now-unloaded firearm. When the police arrived, Baker

      concealed the gun in a rolled-up rug in the hallway.


[7]   After speaking with B.A., the police officers placed Baker under arrest. During

      the search incident to arrest, police officers discovered marijuana and heroin in

      Baker’s pockets. Baker was transported to the Sex Crimes Office and detained

      in an interview room. At some point when there was no other law enforcement

      personnel present, Baker—who was not physically restrained—walked out of

      the interview room and exited the building. He was found at his home the

      following day and was re-arrested. However, because Baker had just ingested a

      handful of pills, the officers transported him to the hospital to be treated for a

      possible overdose. While he was in the hospital, the police also obtained a

      search warrant to have hospital personnel obtain DNA samples from Baker.


[8]   After the police left her home on the evening of the assault, B.A. drove herself

      to the emergency room at Methodist Hospital for a sexual assault examination.

      After interviewing B.A., Sexual Assault Nurse Examiner Danielle Ford (Nurse

      Ford) conducted a physical assessment and documented B.A.’s various injuries.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015   Page 4 of 13
       Nurse Ford noted a purple bruise on B.A.’s right temporal area; “a bruise that

       was painful to palpation” on the right side of her upper chest; “severe pain” on

       the back part of B.A.’s neck; “an area of swelling and some bruising, purple

       discoloration” in the middle of B.A.’s back; a bruised wrist; and

       scratches/scrapes on B.A.’s neck, elbow, and forearm. (Tr. pp. 172, 174-75).

       During the pelvic portion of the examination, Nurse Ford found no injuries to

       B.A.’s genital organs. However, Nurse Ford explained that the absence of

       genital injuries during a sexual assault examination is “not uncommon” due to

       the elasticity of a vagina. (Tr. p. 183). Forensic serology testing and DNA

       analysis confirmed the presence of Baker’s seminal fluid inside B.A.’s vagina.

       DNA analysis also indicated the presence of Baker’s skin cells underneath

       B.A.’s fingernails.


[9]    On September 21, 2014, the State filed an amended Information, charging

       Baker with Count I, rape, a Class B felony, I.C. § 35-42-4-1(a)(1) (2013); Count

       II, criminal confinement, a Class D felony, I.C. § 35-42-3-3(a)(1) (2013); Count

       III, possession of a narcotic drug, a Class D felony, I.C. § 35-48-4-6(a) (2013);

       Count IV, battery resulting in bodily injury, a Class A misdemeanor, I.C. § 35-

       42-2-1(a)(1)(A) (2013); Count V, pointing a firearm at another person, a Class

       D felony, I.C. § 35-47-4-3(b) (2013); Count VI, interference with the reporting

       of a crime, a Class A misdemeanor, I.C. § 35-45-2-5(1) (2013); and Count VII,

       possession of marijuana, a Class A misdemeanor, I.C. § 35-48-4-11(1) (2013).


[10]   On September 22-23, 2014, the trial court conducted a jury trial. At the close of

       the evidence, the jury returned a guilty verdict on Counts I, II, III, IV, VI, and

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015   Page 5 of 13
       VII. The trial court entered a judgment of conviction on the same and a

       judgment of acquittal as to Count V. On December 3, 2014, the trial court held

       a sentencing hearing. Based on double jeopardy concerns, the trial court

       merged Count IV, battery resulting in bodily injury, into Count VI, interference

       with the reporting of a crime. Thereafter, the trial court imposed fifteen years,

       with three years suspended, for rape; two years for criminal confinement; two

       years for possession of a narcotic drug; one year for interference with the

       reporting of a crime; and 180 days for possession of marijuana. The trial court

       ordered all Counts to run concurrently, resulting in an aggregate sentence of

       twelve years executed in the Indiana Department of Correction and three years

       suspended to probation.


[11]   Baker now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                           I. Sufficiency of Evidence

[12]   Baker first claims that there is insufficient evidence to support his rape

       conviction. When reviewing a claim of insufficient evidence, our court does

       not reweigh evidence or assess the credibility of witnesses. Gale v. State, 882

       N.E.2d 808, 816-17 (Ind. Ct. App. 2008). Rather, we will consider only the

       evidence and any reasonable inferences therefrom that support the verdict. Id.

       at 817. So long as there is “evidence of probative value from which a

       reasonable trier of fact could find the defendant guilty beyond a reasonable

       doubt[,]” we will affirm the conviction. Id.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015   Page 6 of 13
[13]   In order to convict Baker of rape as a Class B felony, the State was required to

       prove that he

               knowingly or intentionally ha[d] sexual intercourse with a
               member of the opposite sex when:
               (1) the other person [was] compelled by force or imminent threat
               of force;
               (2) the other person [was] unaware that the sexual intercourse
               [was] occurring; or
               (3) the other person [was] so mentally disabled or deficient that
               consent to sexual intercourse [could not] be given.


       I.C. § 35-42-4-1(a) (2013).


                                    A. Force or Imminent Threat of Force

[14]   On appeal, Baker contends that “[e]ven if the evidence supports the conviction

       for confinement arising out of the acts in the kitchen, it does not show that the

       act of sexual intercourse that occurred later in the bedroom was compelled by

       force or threat of force.” (Appellant’s Br. p. 7). Instead, he asserts that the

       uncontroverted evidence establishes “that B.A. suggested that they go into the

       bedroom to have sex” and that B.A. “cooperated without resistance.”

       (Appellant’s Br. p. 7).


[15]   The element of rape requiring proof that the victim was “compelled by force or

       imminent threat of force”


               demonstrates that it is the victim’s perspective, not the
               assailant’s, from which the presence or absence of forceful
               compulsion is to be determined. This is a subjective test that
               looks to the victim’s perception of the circumstances surrounding

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015   Page 7 of 13
               the incident in question. The issue is thus whether the victim
               perceived the aggressor’s force or imminent threat of force as
               compelling her compliance.


       Newbill v. State, 884 N.E.2d 383, 392 (Ind. Ct. App. 2008) (quoting Tobias v.

       State, 666 N.E.2d 68, 72 (Ind. 1996)), trans. denied. With respect to evidence

       sufficiency, “‘the force necessary to sustain’ a conviction of rape ‘need not be

       physical,’ and ‘it may be inferred from the circumstances.’” Id. (quoting Bryant

       v. State, 644 N.E.2d 859, 860 (Ind. 1994)). Moreover, “‘[f]orce or threat of force

       may be shown even without evidence of the attacker’s oral statement of intent

       or willingness to use a weapon and cause injury, if from the circumstances it is

       reasonable to infer the attacker was willing to do so.’” Jones v. State, 589 N.E.2d

       241, 243 (Ind. 1992) (quoting Lewis v. State, 440 N.E.2d 1125, 1127 (Ind. 1982),

       cert. denied, 461 U.S. 915 (1983)).


[16]   In arguing that B.A. was not compelled by force or threat of force, Baker relies

       on Jones, in which our supreme court found the evidence did not support a

       finding that the defendant

               used force or threats to encourage [the alleged victim] to engage
               in sexual intercourse. He asked her three times, and on the third
               time she “just let him have it.” There was no evidence of any
               previous threats or force against [the alleged victim] from which
               the trier of fact could infer a fear of force or threats on this
               occasion.


       Id. We, however, find the present case clearly distinguishable from Jones.

       Here, before B.A. suggested that they go to the bedroom, Baker had followed


       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015   Page 8 of 13
       her into the kitchen—complaining that he was being denied sex and accusing

       her of infidelity—and knocked her down to the floor. When she tried to stand,

       Baker hit her in the face and shoved her back down. As he confined B.A. to the

       floor, Baker “yanked up [her] nightgown” and roughly attempted “to jam his

       hand into [her] vagina.” (Tr. p. 78). The photographs admitted at trial depicted

       bruises on B.A.’s face, chest, back, and neck. Furthermore, B.A. testified that

       she only offered to go into the bedroom with Baker because “I was terrified. I

       couldn’t breathe. I didn’t know if I was going to die or going to be raped or I

       didn’t know what was going to happen and I was afraid. So, I wanted to get

       myself out of that position.” (Tr. p. 92). From this clear display of force

       immediately prior to the sexual intercourse, we find that a trier of fact could

       reasonably infer that B.A. was compelled by the fear of force or the imminent

       threat of force.


                                         B. Mistake of Fact: Consent

[17]   Baker further asserts that, based on B.A.’s behavior and apparent consent, he

       had no reason to believe that she was being compelled by force or imminent

       threat of force and, therefore, he could not have acted knowingly as the rape

       statute requires. “Although lack of consent is not an element of rape . . . per se,

       evidence which has a tendency to prove either consent or lack of consent is

       relevant to the element of compulsion.” Nolan v. State, 863 N.E.2d 398, 403

       (Ind. Ct. App. 2007), trans. denied. A defendant may raise consent as an

       affirmative defense under the mistake-of-fact statute, which provides that “[i]t is

       a defense that the person who engaged in the prohibited conduct was


       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015   Page 9 of 13
       reasonably mistaken about a matter of fact, if the mistake negates the

       culpability required for commission of the offense.” I.C. § 35-41-3-7.


[18]   Although Baker now posits that his rape conviction should be vacated because

       he engaged in consensual sexual intercourse with B.A., as the State points out,

       “at no point did [Baker] offer the trial court a jury instruction on the mistake-of-

       fact defense.” Nolan, 863 N.E.2d at 404. Therefore, Baker has waived the

       matter for appellate review. Id. Waiver notwithstanding, we nevertheless find

       that there is insufficient evidence demonstrating that Baker made a reasonable

       mistake of fact as to whether B.A. consented. It is well established that, “[i]n

       order for mistake of fact to be a valid defense, three elements must be satisfied:

       (1) the mistake must be honest and reasonable; (2) the mistake must be about a

       matter of fact; and (3) the mistake must negate the culpability required to

       commit the crime.” Id. (alteration in original).


[19]   As to the first element, “[h]onesty is a subjective test dealing with what

       appellant actually believed” whereas “[r]easonableness is an objective test

       inquiring what a reasonable man situated in similar circumstances would do.”

       Id. (first alteration in original). We must find some evidence of both. Id.

       Looking again to the circumstances surrounding B.A.’s plea to “go in the

       bedroom[,]” we cannot agree that Baker could have reasonably been mistaken

       that she was consenting to sexual intercourse. (Tr. p. 79). Rather, in light of

       the fact that B.A. had just denied Baker’s request for sex, following which Baker

       shoved her down to the floor twice, grabbed her by the back of her neck, hit her

       in the face, and tried to force his hand into her vagina, we find that no

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015   Page 10 of 13
       reasonable person would believe that B.A. spontaneously consented to have

       sexual intercourse with Baker. Accordingly, “even if [Baker] had properly

       preserved his appeal of the mistake-of-fact defense, that defense would fail as a

       matter of law.” Nolan, 863 N.E.2d at 404.


                                              II. Double Jeopardy

[20]   Baker next claims that his conviction and sentences for both rape and criminal

       confinement violate the Double Jeopardy Clause of the Indiana Constitution.

       Article 1, section 14 of the Indiana Constitution provides that “[n]o person shall

       be put in jeopardy twice for the same offense.” The Indiana Supreme Court has

       determined that, for purposes of double jeopardy, two offenses are the same

       offense if, “with respect to either the statutory elements of the challenged crimes

       or the actual evidence used to convict, the essential elements of one challenged

       offense also establish the essential elements of another challenged offense.”

       Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). Our court reviews de novo

       whether a defendant’s conviction violates the Double Jeopardy Clause.

       Goldsberry v. State, 821 N.E.2d 447, 458 (Ind. Ct. App. 2005).


[21]   On appeal, Baker contends that his conviction for rape and criminal

       confinement violate the actual evidence test because “the only force employed

       to commit the rape was precisely the same force used to commit the

       confinement.” (Appellant’s Br. p. 13). Under the actual evidence test for

       double jeopardy, our court must “examine the actual evidence presented at trial

       in order to determine whether each challenged offense was established by

       separate and distinct facts.” Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015   Page 11 of 13
       “[W]e must conclude that there is ‘a reasonable possibility that the evidentiary

       facts used by the fact-finder to establish the essential elements of one offense

       may also have been used to establish the essential elements of a second

       challenged offense.’” Id. (quoting Richardson, 717 N.E.2d at 53). A

       “‘reasonable possibility’ that the jury used the same facts to reach two

       convictions requires substantially more than a logical possibility.” Id. (quoting

       Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008)). We will find no double

       jeopardy violation if “the evidentiary facts establishing the essential elements of

       one offense also establish only one or even several, but not all, of the essential

       elements of a second offense.” Id. (quoting Spivey v. State, 761 N.E.2d 831, 833

       (Ind. 2002)). On review, our court will “evaluate the evidence from the jury’s

       perspective and may consider the charging information, jury instructions, and

       arguments of counsel.” Id. at 720.


[22]   As already discussed, Baker’s conviction of rape as a Class B felony required

       the State to establish that he “knowingly or intentionally ha[d] sexual

       intercourse with [B.A.] when . . . [B.A.] [was] compelled by force or imminent

       threat of force.” I.C. § 35-42-4-1(a)(1) (2013). In turn, Baker’s conviction of

       criminal confinement as a Class D felony required proof that he “knowingly or

       intentionally . . . confine[d] [B.A.] without [B.A.’s] consent.” I.C. § 35-42-3-

       3(a)(1) (2013). We find that the jury was presented with sufficiently distinct

       evidence to separately establish the elements of each offense. Contrary to

       Baker’s assertion, the force used to compel sexual intercourse greatly exceeded

       the confinement of B.A. The evidence establishes that Baker—who had been


       Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-889 | August 25, 2015   Page 12 of 13
       expressing his anger about being denied sexual intercourse and had accused

       B.A. of infidelity—knocked B.A. to the floor twice and hit her across the face.

       He then pulled up her nightgown and tried to force his hand into her vagina

       until she eventually agreed, out of fear, to submit to sexual intercourse. On the

       other hand, the elements of criminal confinement are satisfied by the evidence

       demonstrating that Baker held B.A. down on the floor by lying on top of her

       with the full weight of his body as she struggled to breathe and free herself.

       Because we do not find a “reasonable possibility” that the jury relied on the

       same evidentiary facts to establish the essential elements of both rape and

       criminal confinement, Baker’s conviction does not violate Indiana’s Double

       Jeopardy Clause. Garrett, 992 N.E.2d at 719.


                                               CONCLUSION

[23]   Based on the foregoing, we conclude that there is sufficient evidence to sustain

       Baker’s conviction of rape as a Class B felony beyond a reasonable doubt. We

       further conclude that Baker’s conviction for both Class B felony rape and Class

       D felony criminal confinement does not run afoul of Indiana’s Double

       Jeopardy Clause.


[24]   Affirmed.


[25]   Bailey, J. and Barnes, J. concur




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