MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any
court except for the purpose of establishing                       Dec 17 2019, 6:39 am

the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
estoppel, or the law of the case.                                     Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
James Harper                                            Curtis T. Hill, Jr.
Harper & Harper, LLC                                    Attorney General
Valparaiso, Indiana
                                                        Benjamin J. Shoptaw
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Milton Anderson a/k/a LaQuan                            December 17, 2019
Apara,                                                  Court of Appeals Case No.
Appellant-Defendant,                                    19A-CR-1314
                                                        Appeal from the Porter Superior
        v.                                              Court
                                                        The Honorable Roger V. Bradford,
State of Indiana,                                       Judge
Appellee-Plaintiff.                                     Trial Court Cause No.
                                                        64D01-1408-FB-6688



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1314 | December 17, 2019          Page 1 of 13
[1]   Milton Anderson a/k/a LaQuan Apara appeals his convictions and sentence

      for attempted rape as a class B felony, burglary as a class B felony, and robbery

      as a class C felony. 1 He raises the following issues:


           I.   Whether the trial court abused its discretion in admitting certain
                evidence;

          II.   Whether the court abused its discretion in instructing the jury;

      III.      Whether the court erred in determining he is a credit restricted felon;
                and

      IV.       Whether his sentence is inappropriate in light of the nature of the
                offenses and his character.


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


                                      Facts and Procedural History

[2]   In 2014, O.T., who was fifty-eight years old, lived alone. She knew an

      individual by the name of LaQuan Apara who was a co-worker. She and

      Apara engaged in “everyday conversation,” and Apara would compliment her.

      Transcript Volume III at 32. At some point, Apara asked her out on a date,

      and she did not accept his offer. She believed the dialogue at work became

      inappropriate and told him that she would file a sexual harassment claim

      against him if he did not stop.




      1
       The presentence investigation report indicates that Anderson converted to the “Al-Islam religion and
      changed his name from Milton Anderson to LaQuan Ridi Apara.” Appellant’s Appendix Volume II at 181.
      We use Apara to identify the defendant in this decision.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1314 | December 17, 2019         Page 2 of 13
[3]   She never invited him to her home or told him where she lived, but Apara

      showed up at her home on two occasions months before May 25, 2014. On one

      occasion, O.T. opened the door and asked him what he was doing there, and

      Apara said, “Let me in Ms. [T.].” Id. at 37. She allowed him in because she

      did not want any problems outside with neighbors. When she asked how he

      knew where she lived, he said he “had this type of memory.” Id. at 36. The

      visits lasted about thirty minutes, and O.T. ended them because she had things

      to do and he was uninvited. After the first unannounced visit, she told him that

      he could not come to her house uninvited because he would not know when

      she had company, and he said “okay” but returned for the second visit. Id. at

      39. After the second visit, she told him that she would call the police if he

      returned. During those visits, Apara did not go upstairs. He used the

      downstairs bathroom, and O.T. subsequently cleaned it with chemical cleaning

      agents.


[4]   On May 25, 2014, O.T. returned home from work and dozed off watching

      television. She was awakened by a noise, went to investigate, and encountered

      someone in her bathroom with “[s]omething white, like a sheer fabric or

      something” over his head. Id. at 67. She was unable to see a face and asked

      who the person was and what he was doing in her house. The person told O.T.

      in a muffled voice to go to the bed and lie down. He placed his hands on O.T.’s

      shoulders and guided her. O.T. was scared and “proceeded to do whatever he

      said to do.” Id. at 7.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1314 | December 17, 2019   Page 3 of 13
[5]   He followed O.T. to the bedroom, held his gloved hand over her mouth, and

      told her not to scream. O.T. was able to determine that the individual was male

      by hearing his voice. He held her down and repeatedly told her not to yell.

      O.T. told him she was not going to yell because she was afraid. The man

      started to “hump” O.T. from behind. Id. at 9. He asked her to move to the

      center of the bed, and she complied. He placed duct tape over her mouth and

      eyes and taped her wrists together. She was still able to look down.


[6]   The man dropped his pants, continued humping her, told her to turn over on

      her back and that he wanted to see her breasts, and touched her breasts. O.T.

      felt his body on her and believed his penis touched her near her hip line when

      she was on her back side but never felt his erect penis. He commanded her to

      raise her legs several times, and she did so but dropped her legs in an effort to

      prevent him from having intercourse with her. O.T. cried, and the man said he

      was sorry and not to call the police “because this will probably never happen

      again.” Id. at 14. He also stated that he knew it could be traumatic for her but

      she would be all right.


[7]   The man then asked O.T. for money, and she stated that she did not have any.

      He asked for jewelry, and she told him where she had two rings by the

      television stand. He said, “I need more jewelry.” Id. at 19. O.T. told him there

      was more jewelry on the dresser, and he went to the dresser and told her he

      needed a bag. She told him there was a bag in the garbage can, and he removed

      the bag. He then tied her to a bed post using Mardi Gras beads and told her to

      lie there and not to move because he had “to get away.” Id. at 22-23.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1314 | December 17, 2019   Page 4 of 13
[8]    After a few minutes, O.T. went downstairs, called the police, and removed the

       tape from her eyes and mouth. Portage Police Officer Kurt Biggs responded to

       the scene, and O.T. told the officer that the person was African-American,

       around 5’7”, and in his forties. Officer Biggs observed a sliding glass door,

       some metal shavings from pry marks, and a screen door with a broken lock.


[9]    O.T. participated in a sexual assault examination. At some point, she provided

       the police with Apara’s name because she recognized a familiarity of him based

       upon her work and personal life. Shawn Stur, a DNA analyst employed by the

       Indiana State Police Laboratory, performed swabs on the duct tape for DNA

       and found a mixture of at least three individuals including “a major profile at 11

       of the 15 locations” which was consistent with Apara and “estimated to occur

       once in more than eight trillion unrelated individuals.” Id. at 218. He also

       tested the buttocks swab from the sexual assault evidence collection kit and

       deduced a profile that was consistent with Apara and “estimated to occur once

       in more than eight trillion unrelated individuals.” Id. at 222.


[10]   On August 1, 2014, the State charged Apara with Count I, attempted rape as a

       class B felony; Count II, burglary as a class B felony; and Count III, robbery as

       a class C felony. On August 6, 2018, Apara filed a motion in limine requesting

       that the court prohibit the State from introducing information regarding O.T.’s

       speculation that it may have been him when O.T. never positively identified

       him.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1314 | December 17, 2019   Page 5 of 13
[11]   After the jurors were sworn in, Apara’s counsel requested a proposed

       instruction that stated in part: “In determining whether the guilt of an accused

       is proven --- proven beyond a reasonable doubt, you should require that the

       proof be so conclusive and sure as to exclude every reasonable theory of

       innocence.” Transcript Volume II at 233.


[12]   At trial, O.T. answered affirmatively when asked on direct examination if, in

       the course of her contact with the police, she recalled ever being asked if the

       intruder or the suspect seemed familiar to her. She indicated that she did not

       have an answer for the police at that time. The prosecutor asked if there came a

       time when “a cord was struck with you in regard a [sic] potential familiarity of

       who the individual may have been,” and Apara’s counsel objected on the basis

       of speculation, her opinion, and prejudice, and incorporated his motion in

       limine. The prosecutor asserted that it was not speculation. The court

       indicated that the continuing objection was noted and that the prosecutor could

       finish the direct examination. O.T. stated that there came a time when she

       provided the police with Apara’s name because she recognized a familiarity of

       him based upon her work and personal life. Apara’s counsel requested a

       mistrial, and the court denied the motion. The State also presented the

       testimony of Officer Biggs, the sexual assault nurse examiner, a detective, and

       Stur. After the State rested, Apara’s counsel asked for a dismissal, and the

       court denied the motion. The jury found Apara guilty as charged.


[13]   The probation officer completing the presentence investigation report (“PSI”)

       recommended an aggregate sentence of thirty years. The court found Apara’s

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1314 | December 17, 2019   Page 6 of 13
       criminal history as an aggravator and found no mitigators. It sentenced Apara

       to twenty years for Count I, ten years for Count II, and four years for Count III.

       The court ordered the sentences for Counts I and II be served consecutively and

       concurrently with Count III for an aggregate sentence of thirty years. The court

       also found Apara was a sexually violent predator and was required to register as

       a sex offender for life. The court later entered an amendment to the sentencing

       order indicating that Apara was a credit restricted felon.


                                                   Discussion

                                                         I.


[14]   The first issue is whether the trial court abused its discretion in admitting

       certain evidence. Apara argues that O.T.’s testimony that she suspected that he

       was the intruder was inappropriate opinion evidence and highly prejudicial. He

       asserts that her opinion was not rationally based because she repeatedly testified

       that she did not see the intruder’s face and did not know his identity.


[15]   The trial court has broad discretion to rule on the admissibility of evidence.

       Bradley v. State, 54 N.E.3d 996, 999 (Ind. 2016). A trial court’s ruling on the

       admission of evidence is generally accorded a great deal of deference on appeal.

       Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015), reh’g denied.


[16]   Ind. Evidence Rule 701 provides that “[i]f a witness is not testifying as an

       expert, testimony in the form of an opinion is limited to one that is . . .

       rationally based on the witness’s perception” and “helpful to a clear

       understanding of the witness’s testimony or to a determination of a fact in

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1314 | December 17, 2019   Page 7 of 13
       issue.” Ind. Evidence Rule 403 provides that “[t]he court may exclude relevant

       evidence if its probative value is substantially outweighed by a danger of one or

       more of the following: unfair prejudice, confusing the issues, misleading the

       jury, undue delay, or needlessly presenting cumulative evidence.”


[17]   While O.T. was unable to see the face of the attacker and his voice was muffled,

       she testified to her description of the attacker and her familiarity with Apara.

       As to the challenged testimony, O.T. merely answered affirmatively when

       asked if there came a time that she provided the police with a name when she

       recognized a familiarity of the intruder based upon her work and personal life,

       and answered “LaQuan Apara,” when asked for the person’s name. Transcript

       Volume III at 45. Under the circumstances, we cannot say the trial court

       abused its discretion in admitting this testimony.


                                                        II.


[18]   The next issue is whether the trial court abused its discretion in instructing the

       jury. Generally, “[t]he purpose of an instruction is to inform the jury of the law

       applicable to the facts without misleading the jury and to enable it to

       comprehend the case clearly and arrive at a just, fair, and correct verdict.”

       Overstreet v. State, 783 N.E.2d 1140, 1163 (Ind. 2003), cert. denied, 540 U.S. 1150,

       124 S. Ct. 1145 (2004). Instruction of the jury is generally within the discretion

       of the trial court. Id. at 1163-1164.


[19]   Apara argues that the court erred when it denied his request to instruct the jury

       that it must exclude “every reasonable theory of innocence” before convicting

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1314 | December 17, 2019   Page 8 of 13
       him and relies on Hampton v. State, 961 N.E.2d 480 (Ind. 2012). Appellant’s

       Brief at 15.


[20]   In Hampton, the Court held:


               [W]hen the trial court determines that the defendant’s conduct
               required for the commission of a charged offense, the actus reus, is
               established exclusively by circumstantial evidence, the jury
               should be instructed as follows: In determining whether the guilt of
               the accused is proven beyond a reasonable doubt, you should require that
               the proof be so conclusive and sure as to exclude every reasonable theory
               of innocence.


       961 N.E.2d at 491. In that case, “the only evidence that the defendant raped

       and murdered the victim was his DNA in her vagina, which plausibly could

       have arrived there through consensual sex.” Lewis v. State, 34 N.E.3d 240, 247

       (Ind. 2015) (citing Hampton, 961 N.E.2d at 494). “Because that circumstantial

       DNA evidence was the only evidence, the trial court was required to give the

       ‘reasonable theory of innocence’ instruction to the jury.” Id. (citing Hampton,

       961 N.E.2d at 494-495).


[21]   The direct evidence in this case included O.T.’s testimony, signs of forced entry

       into O.T.’s home, the tape over her mouth and eyes, and the tape holding her

       wrists together. We cannot say that the trial court’s failure to provide a

       reasonable theory of innocence instruction warrants reversal. See id. (rejecting

       the defendant’s argument that the DNA found on a victim’s anus was the only

       evidence of deviate sexual conduct, observing that there was direct evidence

       that the activity was not consensual including the victim’s tooth embedded in

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1314 | December 17, 2019   Page 9 of 13
       her car, the defendant’s blood on her steering wheel, and the physical damage

       suffered by the victim, and holding that, given this evidence, the case did not fit

       the requirements of Hampton for a mandatory jury instruction on the reasonable

       theory of innocence).


                                                               III.


[22]   Apara argues that the trial court erred when it designated him as a credit

       restricted felon even though the relevant statute does not apply to the charges

       against him. The State agrees that Apara is not a credit restricted felon and that

       remand is appropriate to correct the sentencing order. Ind. Code § 35-31.5-2-72

       defines a “[c]redit restricted felon,” and Apara does not fall under those

       definitions. 2 Accordingly, we reverse and remand for the trial court to correct

       the sentencing order.




       2
           Ind. Code § 35-31.5-2-72 provides:
                  “Credit restricted felon” means a person who has been convicted of at least one (1) of the
                  following offenses:

                  (1) Child molesting involving sexual intercourse, deviate sexual conduct (IC 35-42-4-3[)],
                  prior to amendment on July 1, 2014 for crimes committed before July 1, 2014, or other
                  sexual conduct (as defined in IC 35-31.5-2-221.5) for a crime committed after June 30,
                  2014, if:

                           (A) the offense is committed by a person at least twenty-one (21) years of age; and
                           (B) the victim is less than twelve (12) years of age.

                  (2) Child molesting (IC 35-42-4-3) resulting in serious bodily injury or death.

                  (3) Murder (IC 35-42-1-1), if:

                           (A) the person killed the victim while committing or attempting to commit child
                           molesting (IC 35-42-4-3);
                           (B) the victim was the victim of a sex crime under IC 35-42-4 for which the person
                           was convicted; or

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1314 | December 17, 2019                  Page 10 of 13
                                                          IV.


[23]   The next issue is whether Apara’s sentence is inappropriate in light of the

       nature of the offenses and his character. Apara acknowledges that the offense

       was extremely serious but points out that no weapons were involved and O.T.

       did not sustain any physical injuries. He also argues that the fact that the three

       offenses constituted a single episode of criminal conduct also supports shorter

       or concurrent sentences.


[24]   Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, [we find] that the

       sentence is inappropriate in light of the nature of the offense and the character

       of the offender.” Under this rule, the burden is on the defendant to persuade

       the appellate court that his or her sentence is inappropriate. Childress v. State,

       848 N.E.2d 1073, 1080 (Ind. 2006).


[25]   Ind. Code § 35-50-2-5 provides that a person who commits a class B felony shall

       be imprisoned for a fixed term of between six and twenty years with the

       advisory sentence being ten years. Ind. Code § 35-50-2-6 provides that a person

       who commits a class C felony shall be imprisoned for a fixed term of between

       two and eight years with the advisory sentence being four years.




                       (C) the victim of the murder was listed by the state or known by the person to be a
                       witness against the person in a prosecution for a sex crime under IC 35-42-4 and
                       the person committed the murder with the intent to prevent the victim from
                       testifying.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1314 | December 17, 2019              Page 11 of 13
[26]   To the extent Apara asserts that the offenses constituted a single episode of

       criminal conduct and requests concurrent sentences, we observe that at the time

       of the offenses, Ind. Code § 35-50-1-2 provided that a “crime of violence”

       included burglary as a class B felony. Thus, the consecutive-sentencing

       limitation in Ind. Code § 35-50-1-2 does not apply. See Johnson v. State, 749

       N.E.2d 1103, 1110 (Ind. 2001) (“[T]he limitations the statute imposes on

       consecutive sentencing do not apply between crimes of violence and those that

       are not crimes of violence.”).


[27]   Our review of the nature of the offense reveals that Apara worked with O.T.,

       his dialogue at work became inappropriate, and she told him that she would file

       a sexual harassment claim against him if he did not stop. He showed up

       uninvited twice at her residence. After the second visit, she told him that she

       would call the police if he returned. On May 25, 2014, Apara broke into O.T.’s

       residence, held his hand over her mouth, held her down, repeatedly told her not

       to yell, placed tape over her mouth and eyes, and taped her wrists together. He

       dropped his pants, “hump[ed]” her, and touched her breasts. Transcript

       Volume III at 9. O.T. felt his body on her body and believed his penis touched

       her near her hip line when she was on her back side. He repeatedly told her to

       raise her legs, and she did so but dropped her legs in an effort to prevent him

       from having intercourse with her. He then took her jewelry.


[28]   Our review of the character of the offender reveals that Apara had been

       employed by the City of Gary for nine years at the time of his arrest. He was

       charged with two counts of burglary in 1981 but the PSI lists the disposition as

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1314 | December 17, 2019   Page 12 of 13
       unknown. Apara was convicted of felony murder in 1983 in which he “robbed

       a purse from a 71-year-old victim and stabbed her to death with a four-inch

       knife.” Appellant’s Appendix Volume II at 179. He received a sentence of

       fifty-five years for that offense. The PSI indicates that, during sentencing for the

       felony murder, the court noted that he had a theft adjudication and a burglary

       pending before the court. It states that Apara did not remember the juvenile

       adjudication and stated that the burglary charge was dismissed. The PSI also

       states that his overall risk assessment score using the Indiana risk assessment

       system places him in the high risk to reoffend category. After due

       consideration, we conclude that Apara has not sustained his burden of

       establishing that his aggregate sentence of thirty years is inappropriate.


[29]   For the foregoing reasons, we affirm Apara’s convictions and sentence, reverse

       his designation as a credit restricted felon, and remand for the trial court to

       correct its sentencing order.


[30]   Affirmed in part, reversed in part, remanded.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1314 | December 17, 2019   Page 13 of 13
