Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                               Aug 30 2013, 9:53 am
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:

LISA M. JOHNSON                                     GREGORY F. ZOELLER
Brownsburg, Indiana                                 Attorney General of Indiana

                                                    JODI KATHRYN STEIN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

LLOYD KIRK,                                         )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A05-1302-CR-66
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Lisa F. Borges, Judge
                            Cause No. 49G04-1204-FA-26368


                                         August 30, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
          Lloyd Kirk appeals his convictions of Class A felony rape1 and Class C felony

battery.2 He presents two issues for our consideration

          1.      Whether the State presented sufficient evidence he committed Class A felony

                  rape; and

          2.      Whether Kirk’s convictions impermissibly subjected him to double jeopardy

                  because the convictions were based on the same evidence.

We affirm in part and reverse in part.

                            FACTS AND PROCEDURAL HISTORY

          In the early morning hours of July 24, 2011, M.G. and her friend’s two-year-old child

were walking on Virginia Avenue in Indianapolis when Kirk approached her from behind

and placed a sharp object at her neck. He told her he would hurt her and the child if she did

not do as he directed. Kirk cut M.G. on the neck, causing it to bleed. He raped her next to a

nearby building and stopped when M.G.’s cell phone would not stop ringing. M.G. escaped

from Kirk and called her friend to pick her up.

          M.G. went to Methodist Hospital, where she was treated for the injury to her neck and

a rape kit was administered. The seminal fluid collected from M.G. had DNA matching

Kirk’s DNA. The police arrested Kirk a few days later near where the rape occurred.

          The State charged Kirk with Class A felony rape, Class B felony criminal




1
    Ind. Code § 35-42-4-1(b)(1).
2
    Ind. Code § 35-42-2-1(a)(3).

                                                2
confinement3, and Class C felony battery. The State later amended the charging information

to allege Kirk was an habitual offender. A jury found Kirk guilty as charged, and he

admitted to being an habitual offender. The trial court merged the Class B felony criminal

confinement conviction with the Class A felony rape conviction. The trial court sentenced

Kirk to fifty years for Class A felony rape, with a thirty year enhancement for his status as an

habitual offender, and eight years for Class C felony battery, and ordered the sentences to run

concurrently.

                                  DISCUSSION AND DECISION

          1.      Sufficiency of the Evidence

          When reviewing sufficiency of evidence to support a conviction, we consider only the

probative evidence and reasonable inferences supporting the trial court’s decision. Drane v.

State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-finder’s role, and not ours, to assess

witness credibility and weigh the evidence to determine whether it is sufficient to support a

conviction. Id. To preserve this structure, when we are confronted with conflicting

evidence, we consider it most favorably to the trial court’s ruling. Id. We affirm a

conviction unless no reasonable fact-finder could find the elements of the crime proven

beyond a reasonable doubt. Id. It is therefore not necessary that the evidence overcome

every reasonable hypothesis of innocence; rather, the evidence is sufficient if an inference

reasonably may be drawn from it to support the trial court’s decision. Id. at 147.

          To prove Kirk committed Class A felony rape, the State had to present evidence he


3
    Ind. Code §35-42-3-3(b)(2).
                                                3
knowingly or intentionally had sexual intercourse with M.G. and M.G. was compelled by

Kirk’s use or threat to use deadly force. See Ind. Code § 34-42-4-1(b) (elements of Class A

felony rape). Kirk argues the State did not present evidence he used or threatened the use of

deadly force. We disagree.

       “Deadly force” is “force that creates a substantial risk of serious bodily injury.” Ind.

Code § 35-31.5-2-85. “Serious bodily injury” is “bodily injury that creates a substantial risk

of death or that causes: (1) serious permanent disfigurement; (2) unconsciousness; (3)

extreme pain; (4) permanent or protracted loss or impairment of the function of a bodily

member or organ; or (5) loss of a fetus.” Ind. Code § 35-31.5-2-292. Kirk argues that

because he did not threaten to kill M.G., he did not threaten deadly force. We disagree.

       The force required for a conviction of rape by deadly force “need not be physical but

may be constructive or implied.” Moore v. State, 551 N.E.2d 459, 461 (Ind. Ct. App. 1990).

The force applied need not be “brute strength” but may “be accomplished by fear produced

by threats.” Id. It is sufficient “if the threat of deadly force is imminent enough to cause the

victim to submit to the aggressor.” Koons v. State, 771 N.E.2d 685, 689 (Ind. Ct. App. 2002)

(court held waving a belt and threatening to strike the victim constituted deadly force)

(quoting Pennington v. State, 523 N.E.2d 414, 415-16 (Ind. 1988)). A threat of deadly force

requires a showing of more than an “idle threat;” Calbert v. State, 275 Ind. 595, 598, 418

N.E.2d 1158, 1160 (1981); however, a weapon need not be brandished to sustain a Class A

felony rape conviction. Zollatz v. State, 274 Ind. 550, 554, 412 N.E.2d 1200, 1202 (1980)

(evidence sufficient where Zollatz told the victim to submit to a sexual act or “he would pull

                                               4
a knife” on her).

       In the instant case, Kirk told M.G. he would “hurt” her or the child if M.G. did not

submit to his demands. (Tr. at 22.) He did so while holding a sharp object to M.G.’s neck.

This is sufficient evidence Kirk used the threat of deadly force to commit rape.

       2.     Double Jeopardy

       Article 1, Section 14 of the Indiana Constitution provides that “no person shall be put

in jeopardy twice for the same offense.” Two or more offenses are the same 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). Double

jeopardy may also be proven when there is a “reasonable probability 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 the second offense.” Id. at 53. Kirk argues he was

subjected to double jeopardy because the jury used the same evidence to convict him of Class

A felony rape and Class C felony battery. We agree.

       At closing argument, the State told the jury:

       So what the State is asking you to do is convict the defendant of each offense
       for which he has been charged; the A felony rape because he used a deadly
       weapon. We all know that the human anatomy, the location of that injury, if
       he had been one direction or the other, there (unintelligible) arteries, your
       carotid arteries are there. She could be dead. So in a way she’s lucky. She
       just got hurt really badly and humiliated in the worst way possible, and raped
       in front of a two year old. And for M.G. that’s actually kind of lucky. But
       that’s a deadly weapon, when you poke something sharp in someone’s neck
       that’s a deadly weapon. Same thing with the confinement; he held her there
       for the purpose of raping her. And the C felony is the injury with the deadly
                                              5
       weapon.

(Tr. at 153-53.) Based on the State’s argument, there is a reasonable probability the jury used

the injury to M.G.’s neck to enhance both the rape and battery convictions. In addition, at

sentencing, the trial court stated:

       And then as to Count Three [Class C felony battery], I am going to sentence
       the defendant to a total of eight years, all of that time to executed but I am
       going to run it concurrent to Count One, with zero days suspended. I am
       running in concurrent because I think it is . . . I agree with you that he didn’t
       have to stab her, but it was the same force that was used, and I don’t know that
       there was additional proof of stabbing that supports a separate sentence, other
       than it being the force that was used to commit the rape, so I am going to run it
       concurrent.

(Tr. at 202-03.) As the imposition of concurrent sentences is not a remedy for Kirk being

subjected to double jeopardy, his conviction for Class C felony battery cannot stand. See

Adams v. State, 754 N.E.2d 1033, 1036 (Ind. Ct. App. 2001) (holding concurrent sentences

does not cure double jeopardy violation). Therefore, we vacate Kirk’s Class C felony battery

conviction.

                                      CONCLUSION

       The State presented sufficient evidence Kirk committed Class A felony rape.

However, his convictions for both Class A felony rape and Class C felony battery subject him

to impermissible double jeopardy based on the same evidence rule. Accordingly, we affirm

in part and reverse in part.

       Affirmed.

MATHIAS, J., concurs.


                                              6
BAKER, J., concurs in part and dissents in part with opinion.




                                            7
                              IN THE
                    COURT OF APPEALS OF INDIANA

LLOYD KIRK,
                                                    )
       Appellant-Defendant,                         )
                                                    )
              vs.                                   )      No. 49A05-1302-CR-000066
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


BAKER, Judge, concurring in part and dissenting in part.

       I agree with the majority’s view that the evidence was sufficient to support Kirk’s

conviction for rape as a class A felony. However, I part ways with the conclusion that Kirk’s

conviction and sentence for battery as a class C felony must be set aside on double jeopardy

grounds.

       The State’s information charging Kirk with rape as a class A felony alleged that he

knowingly had sexual intercourse with M.G. when she was “compelled by deadly force or the

threat of deadly force.” Appellant’s App. p. 25 (emphasis added). On the other hand, Kirk

was charged with battery as a class C felony as follows: “Kirk, on or about July 24, 2011, by

means of a deadly weapon, that is: a sharp object, did knowingly touch [M.G.] in the neck

with the sharp object. . . that is poking M.G. in the neck with the sharp object.” Id. at 26, 61,


                                               8
63. Thus, as indicated above, it was Kirk’s use of a deadly weapon that elevated this offense

from a class B misdemeanor to a class C felony. Ind. Code § 35-42-2-1(a)(3).

       In my view, the evidence presented at trial establishing Kirk’s threat of deadly force

supporting the class A felony rape conviction was not the same evidence that supported the

conviction for class C felony battery. More specifically, Kirk committed and completed the

threat of deadly force when he placed the sharp object against M.G.’s throat and threatened to

injure her and the two-year-old child. Tr. p. 22-23. And this “threat of deadly force” element

did not require an actual use of force. Thereafter, the evidence established that Kirk engaged

in the additional conduct of actually stabbing or “poking” M.G. in the throat with the sharp

object. Id. at 24.

       These facts were separate and distinct. And it has been held that a defendant’s use of

the same weapon in the commission of separate and distinct offenses does not amount to a

violation of the Indiana Double Jeopardy Clause. See Miller v. State, 790 N.E.2d 437, 439

(Ind. 2003) (finding no double jeopardy violation to enhance the defendant’s convictions for

confinement, robbery, and criminal deviate conduct when the same knife was used); see also

Bunch v. State, 937 N.E.2d 839, 848 (Ind. Ct. App. 2010) (concluding that there was no

double jeopardy when enhancing the defendant’s convictions for robbery and confinement

where a sawed-off shotgun was used), trans. denied.

       I would also note that this Court has affirmed a defendant’s conviction for both rape

and battery under a double jeopardy challenge where each offense was established by

separate and distinct facts that supported the use or threat of force element. More

                                              9
specifically, in Moore v. State, the evidence demonstrated that the defendant beat the victim,

thus supporting the conviction for battery. 882 N.E.2d 788, 794-95 (Ind. Ct. App. 2008).

The defendant then forced the victim to engage in sexual intercourse, which supported the

rape conviction. Id. at 795. On appeal, we concluded that each offense was established by

separate and distinct facts and that the defendant’s convictions for battery and rape did not

violate double jeopardy concerns.

       When applying the principles enunciated above, and in light of the evidence that was

presented in this case, I cannot agree with the majority’s view that there is a reasonable

probability that the actual injury to M.G.’s neck was used to enhance both the rape and

battery convictions. In other words, there is little to no substantial likelihood that the jury

used the same evidentiary facts to establish the essential elements of these two offenses.

Thus, Kirk’s convictions and sentences for both offenses are not in violation of double

jeopardy principles. Thus, I vote to affirm the trial court’s judgment in all respects.




                                              10
