MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Feb 07 2019, 9:03 am
court except for the purpose of establishing
                                                                           CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Glen E. Koch II                                          Curtis T. Hill, Jr.
Boren, Oliver & Coffey, LLP                              Attorney General of Indiana
Martinsville, Indiana
                                                         Ellen H. Meilaender
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Rickey D. Haines,                                        February 7, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2113
        v.                                               Appeal from the Brown Circuit
                                                         Court
State of Indiana,                                        The Honorable Judith A. Stewart
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         07C01-1512-F1-373



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2113 | February 7, 2019               Page 1 of 9
[1]   Rickey D. Haines appeals his fourteen-year sentence on remand for Level 3

      felony criminal confinement. 1 Haines argues the trial court abused its

      discretion during his resentencing by considering convictions he obtained after

      his original sentencing. Because Haines invited any alleged error by arguing the

      court could consider his testimony about his behavior while incarcerated

      between his first and second sentencing hearings, he cannot raise this alleged

      error on appeal. We affirm.



                                Facts and Procedural History
[2]   When Haines appealed following his first sentencing, we set out the facts as

      follows:


                 As of December 2015, Haines and Jennifer Wagers (“Wagers”)
                 had been in an on-again/off-again relationship for approximately
                 fourteen years, and they had two minor children together, J.H.
                 and G.H. (together, “Children”). On December 8, 2015, Wagers
                 went to Haines’s residence to make dinner and pick up their
                 Children, ages nine and five years old at the time, who would be
                 getting off the school bus there. When Wagers arrived, she went
                 inside to begin making dinner. At some point, Wagers went into
                 the bathroom, and, shortly thereafter, Haines came in and closed
                 the door behind him. Haines demanded that Wagers hand over
                 her cell phone to him, because he wanted to search her phone for
                 contact with another man, and the two argued. Wagers would
                 not unlock her phone, and Haines was yelling at her. He told her
                 to “assume the position,” Wagers got on the floor on her knees,
                 and Haines tried to drown her in the bathtub. She ended up on



      1
          Ind. Code § 35-42-3-3(a)(2) (2014).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2113 | February 7, 2019   Page 2 of 9
        her stomach on the floor of the bathroom, and he had sex with
        her, which she testified was non-consensual. G.H. knocked on
        the bathroom door, and Haines told him go away. G.H. heard
        his mother crying and saying “stop,” and he ran to summon
        Haines’s mother (“Grandmother”), who lived nearby.
        Grandmother came to Haines’s residence and knocked on the
        closed bathroom door, and Haines opened the door. Wagers
        asked Grandmother to stay, but she left the residence.


        Eventually, Wagers escaped the bathroom and ran out of the
        residence, and Haines ran out another door, still arguing about
        the phone. Haines cornered Wagers on the porch and would not
        let her down the stairs to leave. He punched her in the face with
        his fist. As Wagers sat on the porch, Haines put Wagers in “a
        choke hold,” saying “good night bitch” as she struggled. The
        Children came outside at some point, yelled at Haines “to stop,”
        observed Haines put their mother in a choke hold, and saw him
        throw a bicycle at Wagers. He told the Children to go back into
        the house. Haines ripped a metal porch rail out of the porch and
        threatened to hit Wagers and break her kneecap. He then swung
        the metal pole at Wagers, striking her on the shin, ripping her
        pants, lacerating her leg, and bruising her foot. Wagers agreed to
        unlock her phone, and Haines looked through it. He saw
        messages to other people and was angry, and he ordered her to
        go back into the residence, which she did.


        Inside, he made Wagers get his shotgun and give it to him, and
        he sent the Children to bed. He told Wagers to go to the
        bedroom, and he followed, bringing the shotgun and setting it in
        a corner. He told her to remove her pants and lay on her
        stomach, which she did, and he had intercourse with her, and he
        directed her to perform oral sex. During this time, Haines told
        Wagers that he was recording “everything” on her phone,
        indicating he was going to share it on social media “to show
        everyone how much of a whore [she] was and how much of a
        bad mother [she] was.” Haines eventually went to sleep, but

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2113 | February 7, 2019   Page 3 of 9
        Wagers did not leave because she could not walk and was afraid
        he would catch her. Sometime in the morning, Wagers regained
        custody of her phone, finding it on Haines’s dresser, and after he
        left for work, Wagers called her sister, Jamie Wagers (“Jamie”)
        and asked her to come for her. After Wagers had left Haines’s
        residence, she called the Brown County Sheriff’s Department to
        report what Haines had done.


        Deputy Joshua Stargell (“Deputy Stargell”) arrived, and Wagers
        told him that she had been battered the previous night by Haines.
        He observed a large laceration on her left shin, redness around
        her nose and neck. She showed the officer the metal pole that
        Haines used to batter her; it was about four feet long and had a
        bolt sticking out of it. She also told him that she was strangled
        and punched in the nose. Wagers told Chief Deputy Michael
        Morris (“Chief Deputy Morris”) that Haines had said that he was
        recording sex acts on her phone, so Chief Deputy Morris
        collected Wagers’s phone as evidence.


                                               *****


        On December 11, 2015, the State charged Haines with Level 1
        felony rape, and it subsequently amended the information to add
        charges of Level 3 felony criminal confinement, Level 6 felony
        domestic battery, Level 6 felony strangulation, and Class A
        misdemeanor possession of a firearm by a domestic batterer. The
        State also alleged that Haines was a habitual offender.


                                               *****


        The jury found Haines not guilty of the rape charge and guilty of
        the remaining counts. Haines waived a jury trial as to the
        habitual offender charge, and, after a hearing, the trial court
        adjudicated him to be a habitual offender. . . . On May 1, 2017,
        the trial court . . . imposed a nine-year sentence on the criminal

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2113 | February 7, 2019   Page 4 of 9
                 confinement conviction, enhanced by six years for the habitual
                 offender adjudication, two and one-half years on the domestic
                 battery conviction, and one year on the firearm possession
                 conviction, with the sentences to run concurrently for an
                 aggregate sentence of fifteen years. The court subsequently
                 vacated the conviction for Level 6 felony strangulation on double
                 jeopardy grounds.


      Haines v. State, No. 07A01-1708-CR-1994 at *1-*5 (Ind. Ct. App. March 14,

      2018).


[3]   On appeal, Haines challenged his convictions and sentence. We affirmed

      Haines’ convictions, id. at *10, but we vacated Haines’ habitual offender

      enhancement because his prior felony convictions were Class D felonies that

      had not occurred within the prior ten years. Id. at *9. We then remanded for

      the trial court to resentence Haines for his criminal confinement conviction

      without the habitual offender enhancement attached. Id.


[4]   At the resentencing hearing, over objection from the State, Haines testified

      regarding his conduct while incarcerated subsequent to the original sentencing.

      The State then entered evidence of convictions that Haines acquired following

      his original sentencing: Class A misdemeanor invasion of privacy, 2 Class A

      misdemeanor possession of a firearm by a domestic batterer, 3 and Class B




      2
          Ind. Code § 35-46-1-15.1 (1) (2014).
      3
          Ind. Code § 35-47-4-6 (2007).



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2113 | February 7, 2019   Page 5 of 9
      misdemeanor criminal mischief. 4 The trial court found Haines’ criminal history

      and probation violation as aggravators and Haines’ good behavior in prison and

      participation with the “Suicide Companion” group as mitigators. (Tr. at 16.)

      The court sentenced Haines to fourteen years for Level 3 felony criminal

      confinement.



                                     Discussion and Decision
[5]   Haines argues the trial court abused its discretion by considering, as part of his

      criminal history, convictions he had not acquired at the time of the original

      sentencing hearing. “We initially observe that sentencing decisions rest within

      the sound discretion of the trial court and are reviewed on appeal only for an

      abuse of discretion.” Gleason v. State, 965 N.E.2d 702, 710 (Ind. Ct. App. 2012).

      An abuse of discretion occurs if the trial court’s decision is “clearly against the

      logic and effect of the facts and circumstances before the court, or the

      reasonable, probable, and actual deductions to be drawn therefrom.” Anglemyer

      v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind.

      2007).


                 The trial court can abuse its discretion by: (1) issuing an
                 inadequate sentencing statement, (2) finding aggravating or
                 mitigating factors that are not supported by the record, (3)
                 omitting factors that are clearly supported by the record and




      4
          Ind. Code § 35-43-1-2 (a)(1) (2014).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2113 | February 7, 2019   Page 6 of 9
              advanced for consideration, or (4) finding factors that are
              improper as a matter of law.


      Gleason, 965 N.E.2d at 710.


[6]   Haines claims the court abused its discretion by allowing the State to present

      evidence of three new convictions Haines acquired after his original sentencing

      hearing. However, during the resentencing hearing, while Haines testified on

      his own behalf, the following events unfolded:


              Q: Now since you’ve been in prison what have you been doing
              with your time?


              A: I graduated a course in Seventh Day Adventism and-


              [STATE]: Your Honor, if I could. I’m just gonna object to this
              line of questioning, because I think it exceeds the scope of what
              would have happened as far as sentence. . . sentencing would
              have been concerned when he was originally sentenced.


              [DEFENSE]: Your Honor if I may respond?


              THE COURT: Yes.


              [DEFENSE]: I believe, I’ll have to find the case that I did have
              up. There was a specific case that indicated that on re-sentencing
              the Court could consider an aggravating factor that took place
              between the original sentencing and the re-sentencing and in that
              case it was perjury of the defendant and then testifying against
              the co-defendant. So, my take on that would be that if an
              aggravating factor can be admitted of something that occurred
              after sentencing, but prior to date of re-sentencing the same

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2113 | February 7, 2019   Page 7 of 9
              would go for a mitigating factor and that case was, Hole [sic] v
              State, 839 NE 2nd 1250.


              THE COURT: Alright. I will go ahead and allow the testimony
              and [State] if you have anything in the interim since the last one
              that would be admitted as well. Go ahead [Defense].


      (Tr. Vol. II at 6-7.) Thus, Haines urged the trial court to admit evidence of

      events that occurred between the first and second sentencing hearings.


[7]   “The doctrine of invited error is grounded in estoppel. Under this doctrine, a

      party may not take advantage of an error that she commits, invites, or which is

      the natural consequence of her own neglect or misconduct.” Witte v. Mundy ex

      rel. Mundy, 820 N.E.2d 128, 133-4 (Ind. 2005). Because Haines invited any

      error that may have occurred when the court admitted evidence of convictions

      Haines obtained after his first sentencing hearing, he cannot raise that issue on

      appeal. See Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005) (State not allowed

      to appeal error it invited during trial).


[8]   Had Haines not invited the error, we cannot say the consideration of his later

      convictions would have required reversal. When a trial court considers an

      improper aggravator, we may nevertheless affirm the sentence if we can “say

      with confidence that the trial court would have imposed the same sentence.”

      Webb v. State, 941 N.E.2d 1082, 1090 (Ind. Ct. App. 2011) (affirming despite

      trial court’s failure to consider guilty plea a mitigator), trans. denied. The

      convictions that Haines now says the court should not have considered were

      based on charges that were filed on June 18, 2015, and Haines’ original

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2113 | February 7, 2019   Page 8 of 9
       sentencing was on May 5, 2017, (App. Vol. II at 246), such that the trial court

       had access to information about the charges at the original sentencing hearing.

       The pending charges demonstrate Haines’ prior interaction with the judicial

       system had not led him to live a law-abiding lifestyle and leave a negative

       impression of his character. As such, we are confident the trial court would

       have reached a fourteen-year sentence regardless whether those acts were

       considered as pending charges or as convictions. See, e.g., Webb, 941 N.E.2d at

       1090 (affirming sentence despite abuse of discretion).



                                               Conclusion
[9]    Because Haines insisted the court could consider his behavior while

       incarcerated after the first sentencing, he invited any error that may have

       occurred when the State introduced evidence of convictions that Haines

       obtained after the first sentencing. Additionally, any error in considering

       Haines’ subsequent criminal history was harmless. Accordingly, we affirm.


[10]   Affirmed.


       Baker, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2113 | February 7, 2019   Page 9 of 9
