MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),                            Jul 22 2016, 8:40 am
this Memorandum Decision shall not be
                                                                      CLERK
regarded as precedent or cited before any                         Indiana Supreme Court
                                                                     Court of Appeals
court except for the purpose of establishing                           and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
James A. Edgar                                          Gregory F. Zoeller
J. Edgar Law Offices, Prof. Corp.                       Attorney General of Indiana
Indianapolis, Indiana
                                                        Larry D. Allen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brandon Lewis,                                          July 22, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1509-CR-1395
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Grant W.
Appellee-Plaintiff.                                     Hawkins, Judge
                                                        Trial Court Cause No.
                                                        49G05-1505-F1-15583



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1395 | July 22, 2016      Page 1 of 15
                                       Statement of the Case
[1]   Brandon Lewis appeals his convictions for rape, as a Level 1 felony; criminal

      confinement, as a Level 3 felony; battery, as a Level 5 felony; criminal mischief,

      as a Class B misdemeanor; and his adjudication as a habitual offender following

      a jury trial. Lewis presents the following issues for our review:

              1.      Whether the trial court abused its discretion when it
                      excluded certain defense witnesses from trial.


              2.      Whether the State presented sufficient evidence to support
                      his convictions.


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


                                 Facts and Procedural History
[2]   In the recent past, Lewis and H.D. became acquainted after Lewis fathered

      children with H.D.’s sister. Lewis and his girlfriend lived with H.D. and H.D.’s

      children for a period of time in 2014, and Lewis and H.D. had a sexual

      relationship for a period of time. On April 18, 2015, Lewis, H.D., and H.D.’s

      two minor children went out to dinner together and then to a friend’s house for

      a party. Lewis had spent the night with H.D. the night prior, and they may

      have had consensual sexual intercourse at that time. The night of the party,

      however, H.D. became annoyed with Lewis, and H.D. and her children left the

      party without him. H.D. told Lewis not to come back to her house that night.

      H.D. and her children went home and went to sleep.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1395 | July 22, 2016   Page 2 of 15
[3]   At some point in the night, H.D., who had been sleeping in an upstairs

      bedroom at her duplex, “heard banging” downstairs and “heard the blinds”

      move in a window downstairs. Tr. at 64. H.D. called 9-1-1 to report that

      someone was breaking into her house. While she was on the phone, she saw

      Lewis walking up the stairs. H.D. walked downstairs past him and opened the

      door to wait for the police to arrive. In the meantime, Lewis followed H.D.

      and told her that she should not have called the police. Lewis took a gun out of

      his pocket and showed it to her. As he took the gun out, he said that “he would

      get locked up for a long time” and that “he would do anything that he had to

      against anybody” to avoid jail. Id. at 68.


[4]   When officers with the Indianapolis Metropolitan Police Department

      (“IMPD”) arrived, they began to question Lewis, who told them to talk to H.D.

      The officers then asked H.D., who was standing approximately six feet away

      from Lewis during the questioning, whether she “needed them,” and she

      responded in the negative. Id. at 70. H.D. did not tell the officers that she

      wanted Lewis to leave. After the officers left, Lewis was “in and out of the

      house,” and then Lewis and H.D. began to argue. Id. at 108. At some point,

      Lewis threw H.D.’s phone against a wall, and it broke. While in an upstairs

      bathroom, Lewis pushed H.D., and they started fighting. H.D. yelled out of the

      open bathroom window, and Lewis closed the window. Lewis hit H.D. in the

      face, and, at some point, H.D. lost consciousness for a brief time. When H.D.

      regained consciousness, Lewis dragged her from the bathroom to her bedroom.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1395 | July 22, 2016   Page 3 of 15
[5]   Once in the bedroom, Lewis told H.D. to take off her pants, but she refused.

      While Lewis pulled off her pants, she struggled with him in an effort to stop

      him. After her pants were off, Lewis “ripped” off her underwear. Id. at 81.

      Lewis then picked H.D. up and put her on the bed. Lewis told H.D. to turn

      over, which she initially refused to do, but then she turned over. Lewis started

      having sexual intercourse with H.D., and she told him to stop. Lewis

      continued having sexual intercourse with H.D., and she alternatively told him

      to stop and told him that he could proceed. Finally, Lewis asked H.D. whether

      he could “finish,” and she said yes. Id. at 126.


[6]   Afterwards, one of H.D.’s children came into her bedroom and asked for

      something to drink. Lewis went downstairs and returned with a drink, and

      H.D. told him to leave. Lewis got angry and told H.D. that he was taking his

      washing machine and dryer with him. When he was unable to unhook the

      washing machine, he “just pulled it out of the wall.” Id. at 87. Lewis then

      called his girlfriend, and H.D. went upstairs and went to sleep.


[7]   The next evening,1 H.D. went to a nearby hospital and reported that she had

      been beaten and raped, but she did not contact the police. Amanda Via-Smith,

      the physician’s assistant treating H.D. at the hospital, observed bruises and

      abrasions on H.D.’s body consistent with H.D.’s description of events the night

      before. Via-Smith offered H.D. a consultation with a forensic nurse, and H.D.



      1
        The incident occurred on Saturday night or early Sunday morning, and H.D. went to the hospital that
      Sunday evening.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1395 | July 22, 2016          Page 4 of 15
      agreed. However, a forensic nurse was not available that evening, and Via-

      Smith instructed H.D. to return to the hospital at a later date to see the forensic

      nurse. On April 21, H.D. returned to the hospital, and a forensic nurse

      conducted a rape kit examination. H.D. told the forensic nurse that Lewis had

      beaten and raped her, and the nurse also observed injuries consistent with

      H.D.’s narrative. After leaving the hospital, H.D. and her children moved to

      the Julian Center. While at the Julian Center, H.D. stayed in touch with

      Lewis, and he visited H.D. and the children on two occasions.


[8]   On May 3, H.D. returned to her home and saw that it had been burglarized.

      H.D. called 9-1-1. When officers arrived, a friend of H.D.’s named Cody was

      also there, and Cody told the officers that, a few weeks prior, H.D. had told

      Cody that Lewis had raped H.D. While the officers were talking about the rape

      with H.D., Lewis arrived at H.D.’s house. After recovering H.D.’s ripped

      underwear from her bedroom and taking photographs of H.D.’s home, the

      officers arrested Lewis.


[9]   The State charged Lewis with rape, as a Level 1 felony; burglary, as a Level 2

      felony; criminal confinement, as a Level 3 felony; battery, as a Level 5 felony;

      and criminal mischief, as a Class B misdemeanor. The State also charged

      Lewis with being a habitual offender. Following a bench trial, the trial court

      found Lewis guilty on all counts except for the burglary count, and the court

      adjudicated him to be a habitual offender. The trial court entered judgment

      accordingly and sentenced Lewis to an aggregate executed term of forty-three

      years. This appeal ensued.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1395 | July 22, 2016   Page 5 of 15
                                      Discussion and Decision
                                      Issue One: Defense Witnesses

[10]   Lewis contends that the trial court abused its discretion when it excluded three

       proffered defense witnesses from testifying at trial. In particular, after the final

       pre-trial hearing, Lewis added the following people to his witness list for the

       July 13 trial: Kelly Abel-Raymond (June 11); Kiva Culbertson (June 26); and

       Suprena Carter (July 8). In its motion to exclude those witnesses, the State

       alleged that Abel-Raymond had twice failed to appear for scheduled

       depositions; Culbertson had not appeared for a scheduled deposition; and the

       State had been unable to schedule Carter for a deposition given the short notice.


[11]   Trial courts have the discretion to exclude a belatedly disclosed witness when

       there is evidence of bad faith on the part of counsel or a showing of substantial

       prejudice to the State. Williams v. State, 714 N.E.2d 644, 652 (Ind. 1999). In

       light of a defendant’s right to compulsory process under the federal and state

       constitutions, there is a strong presumption to allow the testimony of even late-

       disclosed witnesses. See U.S. Const. amend. 6; Ind. Const. Art. 1, § 13.


[12]   Initially, as the State correctly points out, Lewis did not make an offer of proof

       with respect to Abel-Raymond’s proposed testimony. As such, Lewis’

       objection to the exclusion of Abel-Raymond’s testimony was not preserved on

       appeal, and the issue is waived. Wiseheart v. State, 491 N.E.2d 985, 991 (Ind.

       1986) (holding that when a defendant does not make an offer of proof, he has




       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1395 | July 22, 2016   Page 6 of 15
       not adequately preserved the exclusion of witness’ testimony as an issue for

       appellate review).


[13]   With respect to the late notice that Culbertson and Carter were to testify on

       Lewis’ behalf at trial, the State alleged bad faith and substantial prejudice.

       However, the State did not move for a continuance, which generally is the

       “appropriate remedy in this situation.”2 Cook v. State, 675 N.E.2d 687, 691 (Ind.

       1996). Regardless, a trial court’s exclusion of a witness’ testimony is subject to

       a harmless error analysis. We will find an error in the exclusion of evidence

       harmless if its probable impact on the factfinder, in light of all of the evidence in

       the case, is sufficiently minor so as not to affect the defendant’s substantial

       rights. Williams, 714 N.E.2d at 652.


[14]   In his offer of proof, defense counsel stated that Culbertson, Lewis’ girlfriend,

       would have testified that


                [Culbertson] had given some money to [Lewis] to give to [H.D.]
                to pay off possibly some drug dealers, which could explain why
                there was a burglary at [H.D.’s] house, or breaking in. Because
                [H.D.] was afraid of drug dealers. It also explains why [H.D.]
                alleged a rape so she could go to the Julian Center to get away
                from her home when the drug dealers were looking for her.




       2
         The State did not ask for a continuance either in its written motion to exclude witnesses or in open court at
       the beginning of trial. While Lewis’ defense counsel stated that he was not amenable to a continuance, the
       State had not requested one. And, as of the day of trial, there were three days left before the deadline for a
       speedy trial pursuant to Lewis’ request.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1395 | July 22, 2016               Page 7 of 15
       Tr. at 7 (emphasis added). When pressed by the trial court, defense counsel

       admitted that the only “admissible testimony” was that Culbertson gave Lewis

       “some money to pay for drugs,” and he also admitted that the evidence was

       “tenuous at best.” Id. As the proffered testimony was not relevant to H.D.’s

       allegations of criminal confinement or rape or was otherwise pure speculation,3

       we hold that any error in the exclusion of Culbertson’s testimony was harmless.


[15]   In his offer of proof regarding Carter’s proposed testimony, defense counsel

       engaged in the following colloquy with the trial court:


               Defense Counsel: I think the main thing she would say is, this all
               started at a party on Oakland Street. [Carter] was at that party.
               She witnessed drug use and alcohol consumption by the alleged
               victim. She’s also aware of a fight between the alleged victim
               and a woman named Megan that happened the day after these
               allegations, which would explain how [H.D.], the alleged victim,
               received bruises, and so she would testify in regard to that.

               Court: She saw the fight?

               Defense Counsel: I don’t think she saw the fight. But she—
               Megan, who is the woman who was in a fight with [H.D.] told
               her about the fight.

               Court: So it would be arguably inadmissible?




       3
         To the extent the proffered testimony would have impacted H.D.’s credibility, the trial court heard
       evidence that H.D. had previously been convicted of theft, and she had admitted to smoking marijuana the
       night of the rape.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1395 | July 22, 2016          Page 8 of 15
               Defense Counsel: And yes I suppose it would be admissible as
               impeachment if I ask [H.D.] about the fight and she denies it.


       Id. at 4-5. First, at trial, H.D. admitted to drinking alcohol and smoking

       marijuana at the party the night of the rape, so that part of Carter’s proffered

       testimony would have been cumulative. Second, to the extent Lewis would

       have used Carter’s testimony about the alleged fight between H.D. and Megan

       to impeach H.D.,4 Lewis has not persuaded us that the probable impact of that

       testimony on the factfinder, in light of all of the evidence in the case, affected

       his substantial rights. Any error in the exclusion of Carter’s testimony was

       harmless.


                                  Issue Two: Sufficiency of the Evidence

[16]   In reviewing a sufficiency of the evidence claim, we do not reweigh the

       evidence or assess the credibility of the witnesses. Sharp v. State, 42 N.E.3d 512,

       516 (Ind. 2015). Rather, we look to the evidence and reasonable inferences

       drawn therefrom that support the judgment, and we will affirm the convictions

       if there is probative evidence from which a reasonable factfinder could have

       found the defendant guilty beyond a reasonable doubt. Id.




       4
        If offered to prove the truth of the matter asserted rather than as impeachment evidence, that testimony
       would have been inadmissible hearsay.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1395 | July 22, 2016             Page 9 of 15
                                                 H.D.’s Testimony


[17]   Lewis first contends that the State presented insufficient evidence to support his

       convictions because H.D.’s testimony was incredibly dubious. The incredible

       dubiosity rule, which is only applied in limited circumstances, allows a court to

       impinge upon the factfinder’s duty to judge witness credibility where a sole

       witness presents inherently contradictory testimony which is equivocal or the

       result of coercion and there is a complete lack of circumstantial evidence of the

       appellant’s guilt. Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015). “‘The

       testimony must be so convoluted and/or contrary to human experience that no

       reasonable person could believe it.’” Id. at 756 (citing Campbell v. State, 732

       N.E.2d 197, 207 (Ind. Ct. App. 2000)).


[18]   Lewis asserts that H.D.’s testimony was inherently inconsistent and equivocal, 5

       and he maintains that she had a motive to lie, “felt coerced,” and recanted her



       5
         H.D.’s testimony regarding whether she had consented to sexual intercourse with Lewis at the time of the
       alleged rape was equivocal, as she testified that she alternately consented and withdrew her consent
       throughout the incident. But IMPD Detective Laura Smith testified as follows with regard to H.D.’s
       testimony:

               Q: . . . [B]ased on your training and your experience being a sex crimes detective is it
               uncommon for victims who are in a relationship with a person who raped them to be
               reluctant to testify?
               A: No, I would say that is common.
               Q: Okay. And is it uncommon for victims who are in a relationship with a person who
               raped them to minimize what happened to them later?
               A: I’d say that’s pretty common.
               Q: Okay. And what are the reasons why a person who is a victim of such a rape, why
               would they do that?
               A: Sometimes they worry a lot about like throwing a rock in a pond and watching it
               splash. Sometimes they have children in common, sometimes they have family dynamics,
               sometimes they feel threatened by others who they know in common. They feel—strangely
               they feel guilty afterwards like they are going to hurt them. That’s just the way the body
               heals. And when you have a personal relationship with someone and you care about them
               I think it’s difficult to turn that off and so it’s common for them to minimize.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1395 | July 22, 2016          Page 10 of 15
       testimony after the trial.6 Appellant’s Br. at 19. Thus, Lewis contends that

       H.D.’s testimony was incredibly dubious. But it is well settled that the

       incredible dubiosity rule only applies where there is a complete lack of

       circumstantial evidence. See id. And here, as Lewis acknowledges, there was

       circumstantial evidence to corroborate H.D.’s testimony.


[19]   Lewis asserts, however, that “the circumstantial evidence originates solely from

       [H.D.] and is just as unreliable as her testimony.” Appellant’s Br. at 24. And

       Lewis asks that we create an exception to the rule under such circumstances.

       We decline Lewis’ invitation. H.D. testified that Lewis dragged her down a

       hallway, beat her, knocked her unconscious, ripped off her underwear, and

       raped her. H.D. reported the rape and assault to Via-Smith the next day, and

       H.D. underwent medical examinations that revealed injuries consistent with the

       events described by H.D. In addition, officers found H.D.’s ripped underwear

       in her bedroom. Because the circumstantial evidence corroborates H.D.’s

       testimony in this respect, the incredible dubiosity rule does not apply here.

       Moore, 27 N.E.3d at 755. H.D.’s testimony and circumstantial evidence was

       sufficient to support Lewis’ convictions.




       Tr. at 227-28.

       6
         H.D. sent a notarized letter to Lewis’ counsel wherein she recanted her trial testimony, but, as the State
       observes, that letter was sent the same day that Lewis violated a no-contact order and spoke with H.D. by
       telephone. And Lewis does not present cogent argument to explain the letter’s relevance to his contention
       that H.D.’s trial testimony was incredibly dubious.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1395 | July 22, 2016              Page 11 of 15
                                        Deadly Weapon Enhancement


[20]   Finally, Lewis contends that the State presented insufficient evidence to prove

       that he was armed with a deadly weapon during the rape and criminal

       confinement of H.D. Lewis maintains that, without such evidence, those

       convictions must be reduced from Level 1 and Level 3 felonies to Level 3 and

       Level 6 felonies, respectively. We must agree.


[21]   To support the enhancement of both the rape and criminal confinement

       convictions as charged, the State was required to prove that Lewis committed

       those offenses while armed with a deadly weapon, namely, a gun. Ind. Code §§

       35-42-4-1(b), 35-42-3-3(a)(2)(A) (2014). Possession of a gun can be either actual

       or constructive. See Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999). Actual

       possession occurs when a person has direct physical control over the item. Id.

       Constructive possession occurs when somebody has the intent and capability to

       maintain dominion and control over the item. Id.


[22]   As the State correctly contends, when a rape conviction is elevated due to the

       use of a deadly weapon, it is not necessary for the State to show that the

       weapon was held on the victim at all times. Potter v. State, 684 N.E.2d 1127,

       1137 (Ind. 1997). In reviewing a sufficiency of the evidence claim concerning

       whether a defendant was armed with a deadly weapon, this court looks to such

       factors as whether there was an initial show of deadly force with the weapon,

       whether the intent was to intimidate the victim with the weapon, and whether




       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1395 | July 22, 2016   Page 12 of 15
       the weapon was at least constructively under defendant’s control at all times.

       Id.


[23]   On appeal, Lewis maintains that, while the evidence showed that he was armed

       with a gun prior to the criminal confinement and rape, there was no evidence or

       inferences therefrom to show either actual or constructive possession of a gun

       during the commission of those offenses. Indeed, H.D. testified that “the last

       time [she] saw the gun was before the police got there,” and she testified that

       Lewis was “in and out” of the house between the time the police officers were

       there and the criminal confinement and rape occurred. Tr. at 108. There is no

       evidence that H.D. felt threatened by Lewis’ possession of a gun during the

       criminal confinement or rape. H.D. testified only that, when Lewis initially

       displayed the gun to her while they were waiting for the police officers to arrive,

       she understood that “[he] would do anything that he would have to not to get

       locked up.” Id. at 68.


[24]   And, notably, at the conclusion of trial, the trial court stated in relevant part as

       follows:

               I’m satisfied that a rape occurred. The challenge on appeal will
               be determining—we need better language and more clear
               language on what armed rape is. There is no doubt that [H.D.]
               knew the defendant routinely carried a gun. She saw it earlier
               that evening/morning. But there was no testimony that she saw it
               after the police arrived, for example. So we need that discussion.


       Id. at 270 (emphasis added).


       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1395 | July 22, 2016   Page 13 of 15
[25]   Lewis and H.D. were downstairs in her house, waiting for the police officers to

       arrive, when Lewis showed her a gun. After the officers left, Lewis was in and

       out of the house for a period of time. Later, when Lewis and H.D. were in an

       upstairs bathroom, Lewis physically assaulted H.D., dragged her down the

       hallway to a bedroom, and raped her. At no time during those events, which

       took place upstairs in H.D.’s house, did H.D. see a gun.7 Thus, while the

       evidence shows an initial show of force by Lewis with the gun and intimidation

       of H.D. with respect to her 9-1-1 call, given Lewis’ movements in and out of the

       house after that and the remoteness in time and location of the crimes from that

       initial show of force, the evidence does not support that Lewis constructively

       possessed a gun during the criminal confinement and rape. See Potter, 684

       N.E.2d at 1137. We hold that, under these circumstances, the evidence is

       insufficient to prove that Lewis committed the criminal confinement or rape

       while armed with a deadly weapon. We remand and instruct the trial court to

       vacate Lewis’ convictions for rape, as a Level 1 felony, and criminal

       confinement, as a Level 3 felony, and enter convictions for rape, as a Level 3

       felony, and criminal confinement, as a Level 6 felony, and resentence Lewis

       accordingly.


[26]   Affirmed in part, reversed in part, and remanded with instructions.




       7
         On redirect examination, the prosecutor asked H.D. whether she remembered “telling Detective Smith that
       [she] saw [Lewis] pick the gun up from between the nightstand.” Tr. at 123. But H.D. responded, “No.” Id.
       And the State did not present any evidence the H.D. had told Detective Smith or anyone else that she had
       seen a gun in the course of either the criminal confinement or the rape.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1395 | July 22, 2016        Page 14 of 15
Robb, J., and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1395 | July 22, 2016   Page 15 of 15
