MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Aug 27 2019, 10:29 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael R. Fisher                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Lance Fleming,                                           August 27, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-47
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark D. Stoner,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Jeffrey L. Marchal,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G06-1707-F3-26238



Altice, Judge.


                                         Case Summary

Court of Appeals of Indiana | Memorandum Decision 19A-CR-47 | August 27, 2019                    Page 1 of 11
[1]   Following a bench trial, Lance Fleming was convicted of Level 3 felony

      attempted rape and Level 3 felony rape. Fleming presents two issues for our

      review:


              1. Is the evidence sufficient to support his conviction for
              attempted rape by other sexual conduct?


              2. Do his convictions for attempted rape and rape violate double
              jeopardy principles?


[2]   We affirm.


                                       Facts & Procedural History


[3]   K.J. first met Fleming in 2002 at AT&T where they both worked, and the two

      became friends. In 2008, they had a one-time sexual encounter. While their

      sexual relationship did not continue, they remained friends off and on. Fleming

      would often assist K.J. with projects around her house or help with her son.


[4]   In October 2015, K.J. was living in Indianapolis with her nineteen-year-old son.

      On October 8, 2015, K.J. worked at AT&T from 1:30 p.m. to 10:00 p.m., and

      then she went to a second job with Labor Ready, where she was helping to

      remodel a Wal-Mart. K.J. worked through the night until 6:30 or 7:00 a.m. on

      October 9, 2015. K.J. had been having trouble with a door to her laundry

      room, so on her way home she called and left a message for Fleming, asking

      him if he could help her fix the door. Fleming called her back and told her that

      he would come by sometime that morning.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-47 | August 27, 2019   Page 2 of 11
[5]   K.J. arrived home around 7:30 or 8:00 a.m. She changed into a nightgown and

      went to sleep in her bed. A short time later, K.J. was awakened by the sound of

      her doorbell. She went to the door and saw Fleming standing outside. When

      she let him in, Fleming attempted to hug her, but she “pulled away”. Transcript

      Vol. 2 at 18. K.J. told Fleming about the problem with the laundry room door,

      and Fleming told her that he had to retrieve his tools. K.J. was feeling

      lightheaded, so she went to her bedroom and sat down on the bed. She

      eventually laid down.


[6]   After returning with his tools, Fleming entered K.J.’s bedroom and told her that

      “he wanted [her].” Id. at 22. K.J. tried to roll over to the other side of her bed

      to get away from Fleming, but Fleming grabbed her ankle. Fleming then

      started taking off his clothes, and K.J. reacted by telling Fleming, “we can’t do

      this, you’re married.” Id. Fleming got on top of K.J., raised up her nightgown,

      and began kissing her on the mouth and on her breasts. At some point,

      Fleming removed K.J.’s underwear. K.J. testified that Fleming was then

      “trying to go down on [her],” by which she meant attempting to perform oral

      sex. Id. at 24. Fleming was unsuccessful in placing his mouth on K.J.’s vagina

      because she was twisting and moving so much in an effort to get away from

      him. K.J. kept telling him, “I can’t do this” and “[w]e can’t do this.” Id. at 25.


[7]   Fleming, who had K.J. pinned down, then forced K.J.’s legs open with his legs

      and inserted his penis into her vagina. K.J. continued to twist and move

      around, trying to get Fleming off of her. The weight of Fleming’s body on top

      of her in addition to her asthma made it difficult for K.J. to breathe. While

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-47 | August 27, 2019   Page 3 of 11
       struggling to breathe, K.J. kept telling Fleming “we can’t do this,” and “no.”

       Id. at 27. Fleming eventually stopped and rolled off K.J.


[8]    K.J., still in her nightgown, got up and went into the living room where she

       curled up in a chair and called her sister, who did not answer. Fleming

       remained on the bed for a few minutes before he got up and went into the living

       room. K.J. then went into her closet, where she felt safe, and called her

       boyfriend. When Fleming came back into the bedroom to retrieve his clothes,

       K.J. backed away and told Fleming, “you got to go, you got to go.” Id. at 29.

       Fleming got dressed and left K.J.’s home. K.J. decided not to call the police

       because she did not want her son to come home to “the police and chaos.” Id.


[9]    After Fleming left, K.J. got dressed and went to the hospital to report the

       incident. She was wearing a different pair of underwear and left her nightgown

       at home. Before she arrived at the hospital, K.J.’s sister called her back and

       K.J. told her what happened. K.J.’s sister testified that K.J. was “extremely

       upset and she was crying” when they spoke. Id. at 50.


[10]   At the hospital, K.J. underwent a sexual assault examination. K.J. reported to

       a forensic nurse that Fleming had attempted oral sex on her and that he

       achieved vaginal penetration with his penis. K.J. reported that Fleming might

       have ejaculated. During the physical examination, the forensic nurse observed

       four distinct injuries, consisting of lacerations and abrasions, to K.J.’s vaginal

       area. The forensic nurse testified that K.J.’s injuries were more consistent with

       forced sex than with consensual sex.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-47 | August 27, 2019   Page 4 of 11
[11]   Detective Fernando Cervantes of the sex crimes unit was dispatched to the

       hospital to investigate. Detective Cervantes met briefly with K.J. and took an

       initial statement. He took an evidence technician to K.J.’s home, where they

       took pictures and collected evidence, including K.J.’s nightgown and sheets.

       Detective Cervantes then located Fleming. He advised Fleming of his rights,

       and Fleming agreed to give a statement. Fleming admitted to knowing K.J.,

       admitted to receiving a call from her about the needed door repair, and

       admitted to going to her house that morning, but he denied having any sexual

       contact with her.


[12]   At trial Fleming testified in his own defense. He admitted that he was going to

       perform oral sex on K.J. and that he got “kind of close to her vagina.” Id. at

       129. Contrary to K.J.’s version of events, Fleming testified that he did not

       complete the act of oral sex because K.J. told him that she had “not washed

       yet,” and so he “kind of worked [his] way back on up.” Id. Fleming also

       admitted that he inserted his penis into K.J.’s vagina and testified that such was

       consensual. He tried to explain his prior statement to Detective Cervantes that

       he did not have any sexual contact with K.J. on the morning in question by

       asserting that he did not understand the question that was asked because he was

       surprised and focused on Detective Cervantes’s suggestion that Fleming forced

       himself on K.J.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-47 | August 27, 2019   Page 5 of 11
[13]   On July 17, 2017, 1 the State charged Fleming with Level 3 felony attempted

       rape, Level 3 felony rape, and Level 6 felony criminal confinement. On

       October 17, 2018, just prior to the scheduled start of Fleming’s jury trial,

       Fleming waived his right to trial by jury, and the matter was tried to the bench.

       At the conclusion of the evidence, the trial court found Fleming guilty as

       charged and entered convictions thereon. On December 6, 2018, the trial court

       held a sentencing hearing. The court vacated Fleming’s conviction for criminal

       confinement, citing double jeopardy, and sentenced Fleming to concurrent

       terms of five years for his Level 3 felony convictions. Fleming now appeals.

       Additional facts will be provided as necessary.


                                             Discussion & Decision


                                                   1. Sufficiency


[14]   Fleming argues that the evidence is insufficient to support his attempted rape

       conviction. When we consider a challenge to the sufficiency of the evidence,

       we neither reweigh the evidence nor assess the credibility of the witnesses.

       Suggs v. State, 51 N.E.3d 1190, 1193 (Ind. 2016). Instead, we consider only the

       evidence and reasonable inferences supporting the conviction. Id. We will




       1
        The nearly two-year delay in filing of charges was because the State waited until the DNA tests came back
       and confirmed that swabs taken from K.J.’s external and internal genitalia and her breasts contained DNA
       consistent with Fleming’s DNA profile.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-47 | August 27, 2019                  Page 6 of 11
       affirm if there is probative evidence from which a reasonable trier of fact could

       have found the defendant guilty beyond a reasonable doubt. Id.


[15]   As charged, the State was required to establish that Fleming did attempt to

       commit the crime of rape by knowingly or intentionally causing K.J. to submit

       to other sexual conduct when she was compelled by force or imminent threat of

       force. Ind. Code § 35-42-4-1(a)(1). As relevant here, “[o]ther sexual conduct”

       is defined as an act involving “a sex organ of one (1) person and the mouth or

       anus of another person.” Ind. Code § 35-31.5-2-221.5. As the substantial step

       toward commission of the crime, the State alleged that Fleming “removed his

       clothing, then removed [K.J.]’s underwear, . . . then placed his face near [K.J.]’s

       vagina.” Appellant’s Appendix Vol. II at 20.


[16]   Fleming argues that K.J.’s testimony that Fleming attempted to perform oral

       sex on her was speculative and did not constitute evidence of probative value

       sufficient to support his conviction for attempted rape by other sexual conduct.

       We disagree. We note that Fleming himself admitted that he was going to

       perform oral sex on K.J. and that he got close to her vagina with his mouth.

       This belies Fleming’s claim that K.J.’s testimony that he was attempting to

       perform oral sex was mere speculation as to his intent to perform oral sex.

       According to K.J., Fleming was not successful in placing his mouth on her

       vagina because she was twisting and struggling as she tried to get out from

       underneath him. Contrary to Fleming’s claim, forensic evidence was not

       needed to establish that Fleming attempted to force K.J. to submit to oral sex.

       In short, Fleming’s argument is simply a request to reweigh the evidence and

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-47 | August 27, 2019   Page 7 of 11
       assess the credibility of the witnesses, which we will not do. See Suggs, 51

       N.E.3d at 1193. The evidence is sufficient to support Fleming’s conviction for

       attempted rape by other sexual conduct.


                                             2. Double Jeopardy


[17]   The double jeopardy clause of the Indiana Constitution provides, “No person

       shall be put in jeopardy twice for the same offense.” Ind. Const. art. 1, section

       14. The double jeopardy clause is intended to prevent the State from being able

       to proceed against a person twice for the same criminal transgression.

       Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). Under Indiana’s Double

       Jeopardy Clause, a defendant may not be convicted of two offenses 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 at 49 (emphases in original); see also Layman v. State, 42

       N.E.3d 972, 980 n.7 (Ind. 2015).


[18]   Fleming argues that his alleged conduct was “described as part of one

       continuing incident where the alleged first offense [i.e., attempted rape by other

       conduct] was actually part and parcel of the second [i.e., rape by sexual

       intercourse].” Appellant’s Brief at 18. Fleming thus contends that under the

       continuing crime doctrine, his convictions for both attempted rape and rape

       cannot stand.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-47 | August 27, 2019   Page 8 of 11
[19]   The continuing crime doctrine is a category of Indiana’s prohibition against

       double jeopardy and applies when “actions that are sufficient in themselves to

       constitute separate criminal offenses may be so compressed in terms of time,

       place, singleness of purpose, and continuity of action as to constitute a single

       transaction.” Walker v. State, 932 N.E.2d 733, 735 (Ind. Ct. App. 2010) (citing

       Riehle v. State, 823 N.E.2d 287, 296 (Ind. Ct. App. 2005), trans. denied). Where,

       however, the defendant is charged with two or more distinct chargeable crimes,

       the continuing crime doctrine does not apply. Id.; see also Hines v. State, 30

       N.E.3d 1216, 1219 (Ind. 2015) (“The continuous crime doctrine does not seek

       to reconcile the double jeopardy implications of two distinct chargeable crimes;

       rather, it defines those instances where a defendant’s conduct amounts only to a

       single chargeable crime.”) (quoting Boyd v. State, 766 N.E.2d 396, 400 (Ind. Ct.

       App. 2002)).


[20]   In Collins v. State, 717 N.E.2d 108 (Ind. 1999), our Supreme Court was

       confronted with a situation in which different sex acts comprised multiple

       charges. Specifically, the defendant was convicted of two separate counts of

       criminal deviate conduct—one based on compelled oral sex and the other based

       on compelled anal sex. Both acts constituted sexual deviate conduct. As

       pertinent to this case, the Court rejected the defendant’s argument that there

       was only one continuous assault because once the assault began, he paused

       only to reposition his victim before continuing the assault. The Court observed

       that “[d]istinguishing separate crimes is often difficult, particularly in cases of

       sexual assault.” Id. at 110. The Court emphasized:


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-47 | August 27, 2019   Page 9 of 11
               We do not approve any principle which exempts one from
               prosecution from all the crimes he commits because he sees fit to
               compound or multiply them. Such a principle would encourage
               the compounding and viciousness of the criminal acts.


       Id. (quoting Brown v. State, 459 N.E.2d 376, 378 (Ind. 1984)). Given that

       resolution of such claims is extremely fact-sensitive, the Court applied the

       actual evidence test in determining whether the offenses were the “same

       offense” for purposes of double jeopardy.


[21]   Here, there is no dispute that the two offenses have distinct statutory elements.

       Our focus is thus on the actual evidence used to convict Fleming of the

       offenses. This analysis requires a consideration of whether the evidentiary facts

       used to establish the essential elements of one offense may also have been used

       to establish all of the essential elements of the other challenged offense. See

       Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002) (“[T]he Indiana Double

       Jeopardy Clause is not violated when 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.”).


[22]   Fleming’s conviction for attempted rape by other sexual conduct was

       established by K.J.’s testimony that Fleming tried to perform oral sex on her but

       was unable to because of her efforts to prevent him from doing so. Fleming

       also testified that he was going to perform oral sex on K.J. and that his mouth

       was close to her vagina. Fleming’s conviction for rape was established by K.J.’s

       testimony that Fleming pinned her down and compelled her to submit to sexual


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-47 | August 27, 2019   Page 10 of 11
       intercourse and forensic evidence demonstrating that DNA profiles obtained

       during K.J.’s sexual assault examination matched Fleming’s. Fleming admitted

       at trial that he inserted his penis into K.J.’s vagina. Fleming’s convictions for

       attempted rape and rape were proven by separate and distinct facts. There is no

       double jeopardy violation.


[23]   Judgment affirmed.


       Kirsch, J. and Vaidik C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-47 | August 27, 2019   Page 11 of 11
