Daquan Whitener v. State of Indiana , 2013 Ind. App. LEXIS 68 ( 2013 )

FOR PUBLICATION
FILED
Feb 14 2013, 8:33 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELIZABETH A. BELLIN GREGORY F. ZOELLER
Cohen Law Offices Attorney General of Indiana
Elkhart, Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAQUAN WHITENER, )
)
Appellant-Defendant, )
)
vs. ) No. 20A04-1205-CR-254
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable Stephen R. Bowers, Judge
Cause No. 20D02-0908-FA-3
February 14, 2013
OPINION - FOR PUBLICATION
BROWN, Judge
Daquan Whitener appeals his conviction for burglary as a class A felony and the
trial court’s determination that he register as a sex offender as a condition of probation.
Whitener raises two issues which we revise and restate as:
I. Whether the evidence is sufficient to sustain his conviction for
burglary as a class A felony; and
II. Whether the court erred in ordering that he register as a sex offender
as a condition of probation.
Additionally, the State raises an issue on cross-appeal, namely, whether the court
properly declined to enter a judgment of conviction for rape as a class B felony based
upon double jeopardy principles. We affirm.
The facts most favorable to the conviction follow. On August 5, 2009, K.A.1 was
at her home with her three children in Elkhart County, Indiana, and over the course of the
afternoon her mother, Laura Jackson, Holly Meyers, and Raquel Pizana arrived to visit.
K.A.’s mother spent most of the afternoon inside with K.A.’s children while the four
women socialized outside in the backyard. At some point in the afternoon or evening, the
women decided that they wanted to drink alcohol. Also, at one point Meyers phoned
Whitener, who was seventeen years old at the time, and asked if he could return a CD
which belonged to Pizana and bring it to K.A.’s home. Whitener arrived along with his
cousin Anthony Wheeler. K.A. had not previously met Whitener or Wheeler. When
Whitener arrived, K.A. and Jackson were inside, and Whitener and Wheeler talked
1
Although this appeal stems from a burglary conviction, as charged the underlying felony
Whitener intended to commit was rape, which is a form of sexual assault, and accordingly we anonymize
the victim’s name.
2
outside with Meyers and Pizana. Whitener and Wheeler left the home with Pizana
without speaking to K.A.
Whitener and Wheeler later returned to K.A.’s home and again spoke in the
backyard with Meyers and Pizana and finished a bottle of gin, and Pizana called K.A. to
the back door and asked if she would go with Pizana, Whitener, and Wheeler to the liquor
store to purchase more alcohol. Before driving to the liquor store they stopped by
another home and picked up Telvon Whitener, who was thirteen or fourteen years old and
was another cousin of Whitener’s. When they arrived at the liquor store, K.A. went
inside, purchased a bottle of gin, and then returned to the car and they left. When they
returned to K.A.’s home, K.A. went inside to attempt “to get rid of [her] mom” while the
others went into the backyard. Transcript at 145. Around 8 p.m., after K.A.’s mother
left, K.A. asked Pizana to drive her to Kroger to purchase liquor for herself, and again
K.A., Pizana, Whitener, and Wheeler traveled together to purchase alcohol. During this
time, Jackson stayed at the home to watch K.A.’s children and Meyers was in her car
talking on the phone.
While in Pizana’s vehicle, for the most part the people in the car listened to the
radio and did not speak to each other. First, the vehicle went to a gas station so Whitener
could purchase “a black and mild,” and then they proceeded to Kroger. K.A. and Pizana
went inside, purchased a bottle of vodka, and then drove back to K.A.’s home. Id. at 147.
K.A. did not speak with Whitener while they were in the car.
3
When they returned, Whitener, Telvon, and Wheeler sat at the kitchen table while
K.A., Jackson, and Pizana sat in the living room on the couch. 2 K.A. and Jackson began
to raise the issue with Pizana that they did not “feel comfortable with [the boys] there
cause [sic] [they] didn’t know how old they were but [they] knew that they were young,”
and they told Pizana that they did not want the boys to be there. Id. at 151. Eventually,
the three boys left with Pizana, but before they left K.A. asked Whitener if she could use
his phone because she did not have her own phone. That brief conversation was the only
time K.A. spoke with Whitener that evening.
After they left, Jackson told K.A. that she should keep drinking because K.A. did
not have the opportunity to do so very often due to her children, Jackson assured K.A.
that she would watch her children, and K.A. “drank a lot.” Id. at 154. At some point in
the night they returned, and at around 1 a.m. Pizana drove Jackson, Whitener, Telvon,
and Wheeler away from K.A.’s home. K.A. fell asleep on the couch and did not
remember Jackson and Pizana leaving. Pizana observed that K.A. was “really, really
drunk,” noting that she was stumbling and slurring her words. Id. at 86. Pizana dropped
Jackson off at her home and then drove the three boys to another residence and dropped
them off.
They stayed at that house for a couple of minutes and then walked to Whitener’s
house which took about five or ten minutes. While at Whitener’s house, Whitener went
upstairs and then came back downstairs and stated to Wheeler and Telvon that he was
going to go back to K.A.’s house because “he remembered that she said she wanted to
2
Meyers left at one point because she had to work.
4
have sex with him,” although Wheeler did not hear K.A. state this to Whitener. Id. at
283. After staying at Whitener’s house for “a minute,” the three of them walked back to
K.A.’s house. Id. at 284.
As they were arriving at K.A.’s home, Whitener explained to Telvon and Wheeler
that K.A. told Whitener to enter through a living room window because “she had child
safety locks on her door.” Id. at 285. Whitener lifted up the screen in the window, pulled
back the window, pushed in a fan which was blocking the window and crawled through.
K.A. awoke and observed her “fan going down in [her] window.” Id. at 156. Whitener
then went to the back door and let Wheeler and Telvon into the home. K.A. did not react
to the fan initially because she was “too drunk” and was “going in and out, blacking out,”
but she observed “a couple people in [her] house” and recognized Telvon and Whitener.
Id. at 157-158.
Once inside, Whitener asked Telvon to “try to talk to her” and to “[k]iss on her
neck a little bit or whatever.” Id. at 250. Telvon kissed K.A. on the neck and pulled
K.A.’s pants down, but she told him to stop and he did not have sex with her. At one
point Whitener moved Telvon aside and told Telvon that “you don’t know what you’re
doing.” Id. at 258. K.A. observed Whitener, who was “real close” to her face and had
his penis in his hand, and both Whitener and Telvon were telling her that it was “alright.”
Id. at 159. Whitener put a condom on and had sex with K.A. During intercourse, K.A.
was crying and attempting to push Whitener off of her and cried out for Jackson to help
because she thought Jackson was still at her house. After Whitener finished having sex
he asked Wheeler “do you want a turn man,” but Wheeler declined. Id. at 261. They
5
then left through the back door, but before Whitener left he discarded the condom. After
they left, K.A. “stumbled to the back door, pushed it all the way shut and locked it,” and
then she went back into the living room and fed her baby, who had been in the living
room in her car seat next to the couch during this time. K.A. started crying and
eventually fell asleep. Id. at 162.
The next morning, K.A. awoke to her mother knocking on her door, and her
mother asked why her window was pried open. Soon after, Jackson came over to K.A.’s
house and observed K.A. looking “kind of traumatized and . . . crying and her hair was
messed up and here [sic] mom was screaming,” and K.A. then started telling Jackson
what had occurred. Id. at 114. K.A. called the police and Officer Bruce Anglemyer
responded and took photographs of the home and transported K.A. to the hospital to have
a rape kit done. K.A. noticed that her vaginal area was sore to the point that she
“couldn’t wear pants” or “wipe” and that her “pad was hurting [her] cause [sic] it kept
rubbing up against [her].” Id. at 167. K.A. noticed while at the hospital that she had
bruises on her leg and back which she did not recognize before the previous night, and
also that she had a “hickey” on her neck that had not been present before. Id. at 169.
On August 28, 2009, the State charged Whitener with Count I, burglary as a class
A felony; and Count II, rape as a class B felony. The court held a jury trial which
commenced on March 23, 2010. At trial, K.A. testified that she did not ask Whitener to
return to her home that night, did not ask him to climb through the window, and did not
ask him to have sex with her. K.A. testified that she did not call the police that night
because she did not have a phone and did not want to go outside. Wheeler and Telvon
6
both testified that Whitener had consensual sex with K.A. and that Telvon did not have
sex with her.
Corporal James Peterson of the Elkhart Police Department testified that he
collected “buckle swab standards” from Telvon and Whitener. Id. at 299. Officer Dan
Milanese testified that he collected a condom and condom wrapper, located in the kitchen
trash can, from K.A.’s home, and photographic evidence of the condom was admitted
into evidence. Jamie Lynn Rice, a registered nurse at Elkhart General Hospital, testified
that she performed a sexual assault exam on K.A. and that K.A. told Rice that “she was
very sore in her vagina . . . she was swollen . . . the external labia of her vagina and uhm,
very red.” Id. at 349. Rice testified that K.A. had a red mark on the right side of her
neck, swelling on her labia majora, a scratch to her knee, and a bruise on her back and
longer scratch above the bruise. Detective Carlton Conway testified that he interviewed
Whitener and Telvon and that Whitener voluntarily gave a statement in which he
admitted that he had sex with K.A., that K.A. told him to climb through the window, and
that although she did not say specifically that she wanted to have sex “he knew what she
meant.” Id. at 395. Detective Conway also indicated that Whitener stated that he did not
believe K.A. was intoxicated when they had sex, and testified that Whitener told him that
he put a condom on to have sex with K.A. Lori Healey, a forensic scientist with the
Indiana State Police who tested the recovered evidence, testified that DNA on the
condom revealed that Whitener could not be excluded as a contributor and that Telvon
and Wheeler could both be excluded. Healey also testified that a DNA swab sample from
K.A.’s neck revealed that neither Whitener nor Telvon could be excluded as contributors.
7
On March 25, 2010, the jury found Whitener guilty as charged. On April 19,
2010, the court held a sentencing hearing and sua sponte vacated Count II, finding that
there was a reasonable possibility that the same evidentiary facts were relied upon by the
jury in convicting Whitener on both Counts I and II. The court sentenced Whitener to
twenty-five years with five years suspended to probation. The court also ordered that
Whitener register as a sex offender.
On April 23, 2010, Whitener filed a motion to correct error stating that the court’s
order requiring him to register as a sex offender pursuant to Ind. Code § 11-8-8-4.5 was
error because his sole conviction was for burglary as a class A felony which is not one of
the enumerated offenses in the statute. On April 28, 2010, the State filed a motion to
correct error stating that the court erred when it “held that the State was required to prove
aggravating circumstances to a jury” and in vacating Count II based upon double
jeopardy grounds. Appellant’s Appendix at 97. On May 10, 2010, the court held a
hearing on the motions to correct error and denied the State’s motion to the extent that it
asked the court to reinstate a conviction on Count II and granted Whitener’s motion with
respect to the order that he register as a sex offender. The court also granted the State’s
motion with respect to aggravators and mitigators, proceeded to resentencing, and
sentenced Whitener to forty years with fifteen years suspended to probation. The court
also ordered that Whitener register as a sex offender as a condition of probation.
On April 9, 2012, Whitener filed a petition for leave to file a belated notice of
appeal pursuant to Ind. Post-Conviction Rule 2(1). On April 17, 2012, the court granted
his petition, and on May 16, 2012, Whitener by counsel filed a notice of appeal.
8
I.
The first issue is whether the evidence is sufficient to sustain Whitener’s
conviction for burglary as a class A felony. When reviewing claims of insufficiency of
the evidence, we do not reweigh the evidence or judge the credibility of witnesses.
Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we look to the
evidence and the reasonable inferences therefrom that support the verdict. Id. We will
affirm the conviction if there exists evidence of probative value from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt. Id. The
uncorroborated testimony of one witness, even if it is the victim, is sufficient to sustain a
conviction. Ferrell v. State, 565 N.E.2d 1070, 1072-1073 (Ind. 1991).
The offense of burglary as a class A felony is governed by Ind. Code § 35-43-2-1,
which provides that “[a] person who breaks and enters the building or structure of another
person, with intent to commit a felony in it, commits burglary, a Class C felony.
However, the offense is . . . a Class A felony if it results in: (A) bodily injury; or (B)
serious bodily injury; to any person other than a defendant.” Here, the State alleged in its
charging information that Whitener:
Did break and enter the building or structure of another person, to wit: the
residence of [K.A.], with intent to commit a felony therein, to wit: Rape,
that is to knowingly have sexual intercourse with a member of the opposite
sex and the person was compelled by force or the imminent threat of force,
which conduct resulted in bodily injury, to wit: an impairment to the
physical condition of the said [K.A.] . . . .
Appellant’s Appendix at 233. Thus, to convict Whitener of burglary as a class A felony,
the State needed to prove that he broke and entered K.A.’s residence with the intent to
commit rape and that K.A. suffered an impairment to her physical condition.
9
Whitener argues that the State failed to prove the elements of burglary because
“there was inadequate evidence presented at trial to establish that [Whitener] entered
[K.A.’s] apartment with the requisite intent to force [her] to have sexual intercourse with
him.” Appellant’s Brief at 10. Whitener argues that at trial, Telvon and Wheeler both
testified that Whitener indicated to them that K.A. told him to come back to her home and
to enter through the front window that was open because the front door had child safety
locks on the handle. Whitener argues that K.A. “could not remember much of what
happened,” noting that she “could not testify for certain that [Whitener] even had sexual
intercourse with her, let alone whether said act was the result of a consensual encounter .
. . .” Id. at 12. Whitener also argues that there was insufficient evidence to show that
K.A. sustained bodily injury as a result of his actions, noting that K.A. could not attribute
the marks on her leg and back directly to Whitener, and the mark on her neck “was a
result of the separate act of Telvon [] kissing her neck . . . .” Id. at 13.
The State argues that Whitener “lifted up the screen in the window, pulled back
the window, and pushed in the fan that was blocking the window” which satisfies the
breaking and entering element. Appellee’s Brief at 15. The State argues that Whitener
“expressly intended to return to [K.A.’s] house to have sex with her.” Id. The State
argues that Whitener knew that K.A. did not have a phone and notes that K.A. testified
that she did not invite Whitener to return or consent to having sex. The State argues also
that the method of entering a home can evidence one’s intent to commit a violent attack
and that Whitener’s entry by the window was evidence of such. The State argues that
Whitener’s behavior while inside K.A.’s home is further evidence of intent, noting that he
10
encouraged Telvon to have sex with her and asked Wheeler whether he wanted to have
sex with her. The State also argues that evidence supports the verdict that K.A. suffered
bodily injury as a result of Whitener’s breaking and entering including “significant
swelling, bruising, redness, soreness and pain in her vaginal area” as well as “bruising on
her back, bruising and scratches on her knee, scratches on her buttock and hip area, and
ecchymosis, or bruising, on her neck.” Id. at 16.
To the extent that Whitener suggests that the State failed to prove intent, we
observe that evidence of intent “need not be insurmountable,” Gilliam v. State, 508
N.E.2d 1270, 1271 (Ind. 1987), reh’g denied, but there must be a “specific fact that
provides a solid basis to support a reasonable inference that the defendant had the specific
intent to commit a felony.” Freshwater v. State, 853 N.E.2d 941, 944 (Ind. 2006). The
evidentiary inference pointing to the defendant’s intent must be separate from the
inference of the defendant’s breaking and entering. Justice v. State, 530 N.E.2d 295, 297
(Ind. 1988); Kondrup v. State, 250 Ind. 320, 323, 235 N.E.2d 703, 705 (1968). “The
inference of intent must not derive from or be supported by the inference of breaking and
entering.” Baker v. State, 968 N.E.2d 227, 230 (Ind. 2012). “In other words, the
evidence must support each inference—felonious intent and breaking and entering—
independently, and neither inference should rely on the other for support.” Id. “This is
not to say, however, that the same piece of evidence cannot support both inferences.” Id.
Here, the facts most favorable to the conviction reveal that Whitener spent most of
the evening at K.A.’s home and was aware of the fact that she had been drinking heavily,
and that when they left K.A.’s home around 1 a.m. K.A. was “really, really drunk,” and
11
was stumbling and slurring her words. Transcript at 86. Whitener also was aware that
K.A. did not have a working phone. After leaving K.A.’s home, Whitener, Wheeler, and
Telvon arrived at Whitener’s house, and Whitener stated that he was going back to
K.A.’s home because she wanted to have sex with him. They walked to K.A.’s, and
when they arrived Whitener approached the living room window, lifted up the screen in
the window, pulled back the window, pushed in a fan which was blocking the window
and crawled through. Whitener found K.A., who had been sleeping, on her couch, and
she was drunk and “going in and out, blacking out.” Id. at 157. He then went to the back
door and let the other two into the home. Whitener first encouraged Telvon to kiss K.A.,
but he later moved Telvon aside, telling Telvon that “you don’t know what you’re
doing,” put on a condom, and had sex with K.A. Id. at 258. During intercourse, K.A.
was crying and attempting to push Whitener off of her and cried out for help from
Jackson who she thought was still at her house. After finishing, Whitener asked Wheeler
“do you want a turn man,” but Wheeler declined. Id. at 261. K.A. sustained injuries
including soreness on her vaginal area to the point that she “couldn’t wear pants” or
“wipe” and that her “pad was hurting [her] cause [sic] it kept rubbing up against [her].”
Id. at 167. An examination at the hospital revealed that K.A. had bruises on her leg and
back as well as a “hickey” on her neck. Id. at 169.
Whitener’s argument is essentially a request that we reweigh the evidence or judge
the credibility of witnesses, which we cannot do. Jordan, 656 N.E.2d at 817. We
conclude that the State presented evidence of a probative nature from which a reasonable
12
trier of fact could have found beyond a reasonable doubt that Whitener’s entry of K.A.’s
home was unauthorized and that he was guilty of burglary as a class A felony.
II.
The next issue is whether the court erred in ordering that Whitener register as a
sex offender as a condition of probation. Probation is a criminal sanction where the
convicted offender agrees to accept conditions upon his behavior in lieu of incarceration.
Gaither v. Ind. Dep’t of Correction, 971 N.E.2d 690, 694 (Ind. Ct. App. 2012). A trial
court has broad discretion to impose conditions of probation, with the only limitation
being that the conditions have a reasonable relationship to the treatment of the accused
and the protection of the public. Id. The reviewing court is limited to considering
whether the conditions imposed by the court on the accused aid in the furtherance of the
goal of “assuring that the probation serves as a period of genuine rehabilitation and that
the community is not harmed by a probationer being at large.” Id. We will not set aside
terms of probation unless the trial court abused its discretion. Id. An abuse of discretion
occurs where the decision is “clearly against the logic and effects of the facts and
circumstances before the court, or the reasonable, probable, and actual deductions to be
drawn therefrom.” Anglemeyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on
reh’g, 875 N.E.2d 218 (Ind. 2007).
Whitener begins by reciting Ind. Code § 11-8-8-4.5, the relevant provision
defining “sex offender” for purposes of Indiana’s Sex Offender Registration, and argues
that although he “does not dispute that if he were convicted of Rape as a class B felony
he would meet the criteria for having to register as a sex offender . . . . [his] conviction
13
for Rape in Count II was vacated . . . .” Appellant’s Brief at 15. Whitener argues that
“[w]hen looking at the statute outlining the crimes for which a person is required to
register as a sex offender, Burglary is not listed” and he “would need to have been
convicted of Rape as a separate and distinct act for the statute to apply in the instant
matter.” Id.
The State argues that the trial court was within its discretion to order that Whitener
register as a sex offender as a condition of probation and that the court did not abuse its
discretion in doing so. The State argues that because the order was a condition of
probation and not a statutory requirement, “a violation . . . would [] be punishable as a
probation violation and [Whitener] would not be subject [to] prosecution for violation of
Ind. Code § 11-8-8-17.”3 Appellee’s Brief at 18.
In Weiss v. Ind. Parole Board, defendant Weiss was convicted of aggravated
battery, and “[s]hortly after Weiss was paroled, his parole agent recommended that he be
required to adhere to the standard and special sex offender parole conditions[4] in addition
3
The State also suggests that this issue is moot because the court erred in vacating Whitener’s
rape conviction. We address this issue in part III.
4
Ind. Code § 11-13-3-4(g), as currently constructed, provides in part:
(g) As a condition of parole, the parole board:
(1) may require a parolee who is a sex offender (as defined in IC 11-
8-8-4.5) to:
(A) participate in a treatment program for sex
offenders approved by the parole board; and
(B) avoid contact with any person who is less than
sixteen (16) years of age unless the parolee:
(i) receives the parole board’s
14
to the standard parole conditions” because his crime involved “raping a minor and
leaving her for dead,” and “these additional requirements would protect society and
encourage rehabilitation.” 838 N.E.2d 1048, 1049 (Ind. Ct. App. 2006) (internal
quotations omitted), trans. denied. Weiss challenged the imposition of the sex offender
parole conditions, arguing in part that the Indiana Parole Board was prohibited from
imposing the sex offender conditions on a parolee not convicted of an offense listed in
the statute defining sex offender, and the court dismissed his claim pursuant to Ind. Trial
Rule 12(B)(6). Id. at 1050.
approval; or
(ii) successfully completes the
treatment program referred to in
clause (A); and
(2) shall:
(A) require a parolee who is a sex or violent offender
(as defined in IC 11-8-8-5) to register with a
local law enforcement authority under IC 11-8-
8;
(B) prohibit a parolee who is a sex offender from
residing within one thousand (1,000) feet of
school property (as defined in IC 35-31.5-2-285)
for the period of parole, unless the sex offender
obtains written approval from the parole board;
(C) prohibit a parolee who is a sex offender
convicted of a sex offense (as defined in IC 35-
38-2-2.5) from residing within one (1) mile of
the victim of the sex offender’s sex offense
unless the sex offender obtains a waiver under
IC 35-38-2-2.5; . . . .
We observe that this statute differs from the version recited in Weiss in that Ind. Code §§ 5-2-12,
which related to sex offender registration in Indiana, was repealed by Pub. L. No. 140-2006, § 41, and
Pub. L. No. 173-2006, § 55, and the current statute reflects that the sex offender registration is governed
by Ind. Code §§ 11-8-8, among other revisions not pertinent in this matter.
15
On appeal, this court noted that the statutes as constructed did not prohibit
imposing the sex offender conditions on offenders such as Weiss and that “[a]lthough
[he] was not convicted of a sex offender crime, he pled guilty to aggravated battery of a
minor” and he “does not deny that the battery to the minor also involved the rape of her.”
Id. at 1051-1052. We observed that Ind. Code § 11-13-3-4(b) granted the parole board
“general authority to impose additional conditions beyond the standard conditions for a
person on parole as long as the conditions are reasonably related to the parolee’s
successful reintegration into the community and not unduly restrictive of a fundamental
right.” Id. at 1051. The court held that “[t]hese acts are a significant part of his social
interaction history that should be taken into account when determining what conditions
would aid his re-entry to society” and that “[b]ecause his crime involved a sexual act with
a child, the imposition of the sex offender conditions are reasonably related to Weiss’s
reintegration into the community.” Id. at 1052.
Just as the parole board is vested with discretion in setting conditions of parole, as
noted above trial courts are given broad discretion in fashioning conditions of probation,
and we find that the reasoning in Weiss applies with equal force here to Whitener’s
probation. Indeed, we note that this court has previously stated that “[p]arole and
probation conditions may be viewed together because ‘a person on probation occupies a
status similar to that of a person on parole.’” Gaither, 971 N.E.2d at 694 (quoting
Carswell v. State, 721 N.E.2d 1255, 1262 (Ind. Ct. App. 1999)). “[T]he only practical
difference between the two is that ‘probation’ relates to judicial action taken before the
16
prison door is closed, whereas ‘parole’ relates to executive action taken after the door has
closed on a convict.” Id.
Ind. Code § 35-38-2-2.3 (Supp. 2009) governs the conditions of Whitener’s
probation. At the time of Whitener’s sentencing, the relevant version of Ind. Code § 35-
38-2-2.3 provides in part that “(a) As a condition of probation, the court may require a
person to do a combination of the following: . . . (14) Satisfy other conditions reasonably
related to the person’s rehabilitation.”5 Although Whitener was convicted and sentenced
on a count of burglary as a class A felony, which is not an enumerated offense under Ind.
Code § 11-8-8-4.5(a) (Supp. 2007),6 the underlying felony he intended to commit when
committing the burglary was rape, which is an enumerated offense. Moreover, we note
that Whitener was found guilty of committing rape as a class B felony by the jury, and
the court vacated his conviction based upon double jeopardy principles. Thus, much as
the defendant in Weiss, Whitener’s crime involved the act of raping K.A., and it was
within the court’s discretion under the facts of this case to order that he register as a sex
offender as a condition of probation as reasonably related to his rehabilitation.
Accordingly, we conclude that the court did not abuse its discretion in ordering that he
register as a sex offender as a condition of probation. See Hale v. State, 888 N.E.2d 314,
5
As noted above, the court sentenced Whitener in May 2010 following the hearing on the
motions to correct error and ordered that Whitener register as a sex offender as a condition of probation.
Ind. Code § 35-38-2-2.3 has subsequently been amended by Pub. L. No. 40-2012, § 20 (eff. July 1, 2012),
and Pub. L. No. 147-2012, § 9 (eff. July 1, 2012). The relevant subparagraph in the current statute is
listed as subparagraph (15).
6
Section 4.5(a) provides a list of offenses and states that a person who is convicted of any such
enumerated offense is a “sex offender,” and it lists rape as one such offense but does not include burglary
with the intent to commit rape or other enumerated offense. Ind. Code § 11-8-8-4.5(a) (Supp. 2007)
(subsequently amended by Pub. L. No. 1-2012, § 2 (eff. Jan. 30, 2012); Pub. L. No. 72-2012, § 1 (eff.
July 1, 2012)).
17
319 (Ind. Ct. App. 2008) (holding that condition of probation that the defendant’s driver’s
license be suspended for a period of ten years was reasonably related to his rehabilitation
and noting that it “is consistent with the trial court’s broad discretion in imposing
conditions of probation in order to create law-abiding citizens and to protect the
community with the only limitation being that the conditions have a reasonable
relationship to the treatment of the accused and the protection of the public” and that the
reviewing court “is essentially limited to determining whether the conditions placed upon
the defendant are reasonably related to attaining these goals”) (internal quotations
omitted), trans. denied.
III.
The issue raised by the State on cross-appeal is whether the court properly
declined to enter a judgment of conviction for rape as a class B felony based upon double
jeopardy principles. However, before we can address the merits of this issue, we must
first discuss whether the State may raise this issue. As noted above, on April 19, 2010, at
Whitener’s sentencing hearing, the court vacated Count II, noting that it merged into
Count I for sentencing. On April 28, 2010, the State filed a motion to correct error which
stated in part that the court erred in vacating Whitener’s conviction on Count II. On May
10, 2010, following a hearing, the court denied the State’s motion in relevant part.
Neither Whitener nor the State filed a notice of appeal in 2010, and in April 2012 the
court granted Whitener’s petition to file a belated notice of appeal pursuant to Ind. Post-
Conviction Rule 2(1).
18
Initially, we observe that the State’s authority to appeal criminal matters is
extremely limited and is statutory in nature and that “the State cannot appeal unless given
that statutory authorization by the legislature.” State v. Coleman, 971 N.E.2d 209, 211
(Ind. Ct. App. 2012) (citing State v. Brunner, 947 N.E.2d 411, 415 (Ind. 2011), reh’g
denied). Also, “[t]he State’s statutory right of appeal is in contravention of common law
principles and is therefore strictly construed.” Id. (citing State v. Pease, 531 N.E.2d
1207, 1208 (Ind. Ct. App. 1988)). Specifically, Ind. Code § 35-38-4-2, titled “Appeals by
state as provided by court rules for certain cases,” provides that appeals to this court or
the Indiana Supreme Court may be taken by the State in the following cases:
(1) From an order granting a motion to dismiss an indictment or
information.
(2) From an order or judgment for the defendant, upon his motion for
discharge because of delay of his trial not caused by his act, or upon
his plea of former jeopardy, presented and ruled upon prior to trial.
(3) From an order granting a motion to correct errors.
(4) Upon a question reserved by the state, if the defendant is acquitted.
(5) From an order granting a motion to suppress evidence, if the
ultimate effect of the order is to preclude further prosecution.
(6) From any interlocutory order if the trial court certifies and the court
on appeal or a judge thereof finds on petition that:
(A) the appellant will suffer substantial expense, damage,
or injury if the order is erroneous and the
determination thereof is withheld until after judgment;
(B) the order involves a substantial question of law, the
early determination of which will promote a more
orderly disposition of the case; or
19
(C) the remedy by appeal after judgment is otherwise
inadequate.
This rule applies with equal force when the State raises an issue by way of cross-appeal.
See Hardley v. State, 905 N.E.2d 399, 401 (Ind. 2009) (observing that generally Ind.
Code § 35-38-4-2 applies to claims raised by the State including claims raised by cross-
appeal as was the case therein).
We also observe that in Hardley the Court held that, in addition to the
circumstances enumerated in Ind. Code § 35-38-4-2, there is an additional circumstance
in which the State may appeal in criminal cases where, as a pure matter of law, the trial
court’s sentence is claimed to be illegal. 905 N.E.2d at 404. The Court determined that
Ind. Code § 35-38-1-15 implicitly grants the State authority to challenge erroneous
sentences and reasoned that “sound policy and judicial economy favor permitting the
State to present claims of illegal sentence on appeal when the issue is a pure question of
law that does not require resort to any evidence outside the appellate record.” Id. at 403.
The Court noted that such a challenge need not be brought within thirty days of a final
judgment because “[t]here is no requirement that a motion to correct a sentence under
[Ind. Code] § 35-38-1-15 must be made within thirty days of the final judgment” and “the
State’s appellate challenge is the substantial equivalent of the motion to correct erroneous
sentence . . . .” Id.
The Court applied this principle in another case in which the defendant petitioned
the trial court to modify his conviction for operating under the influence from a class D
felony to a class A misdemeanor which the court granted. Brunner, 947 N.E.2d at 414.
The Court held that the State “timely appealed a judgment entered by the trial court”
20
which the court did not possess statutory authority to do and that under those
circumstances, in which the issue was “a pure question of law that does not require
evidence outside the record . . . the State has the limited availability to appeal a trial
court’s modification of conviction under these particular circumstances.” Id. at 415-416.
We note, however, that the statement in Hardley that such an appeal need not be filed
within thirty days based upon Ind. Code § 35-38-1-15 was not applicable in this
circumstance.
We turn next to State v. Holtsclaw, in which the Court addressed whether Ind.
Appellate Rule 9 applied to the State in tolling the thirty-day deadline for filing a notice
of appeal when a party files a motion to correct error. 977 N.E.2d 348, 349 (Ind. 2012).
In Holtsclaw, following the trial court’s May 23, 2011 grant of the defendant’s motion to
suppress evidence, the State on June 21, 2011 filed a motion to correct error which the
court denied on July 25. Id. On August 16, 2011, the State appealed the court’s
suppression ruling, and the defendant argued that the appeal was untimely and not
authorized by statute because Ind. Code § 35-38-4-2 does not allow for appeals by the
State stemming from the denial of a motion to correct error. Id. at 349-350. The State
argued that Ind. Appellate Rule 9, which tolls the thirty-day filing deadline “if any party
files a timely motion to correct error[,] . . . took precedence over Ind. Code § 35-38-4-2
and thus its appeal was timely.” Id. at 350. The Court agreed, noting that “[o]ur ‘rules of
procedure prevail over any statute or statutory construction’” and “in this conflict
between Indiana Code § 35-38-4-2 and our Appellate Rule 9, the former must give way
to the latter.” Id. (quoting State ex rel. Crawford v. Del. Cir. Ct., 655 N.E.2d 499, 500
21
(Ind. 1995)). It held that pursuant to Ind. Appellate Rule 9 the State had until August 24,
2011, to appeal from the denial of its motion to correct error, and that accordingly its
appeal was timely. Id.
Here, by contrast, following the court’s denial of the State’s motion to correct
error on May 10, 2010, the State elected not to appeal. It was two years later, after
Whitener pursued a direct appeal by filing a petition to file a belated appeal pursuant to
Ind. Post-Conviction Rule 2(1), that the State elected to raise this issue. We conclude
that, under these circumstances, the State’s cross-appeal issue is untimely, and
accordingly we dismiss the State’s appeal.7
7
We acknowledge that this court has previously observed that if a trial court grants a petition to
file a belated notice of appeal, “the ‘notice of appeal shall be treated for all purposes as if filed within the
prescribed period.’” Beatty v. State, 854 N.E.2d 406, 409 (Ind. Ct. App. 2006) (quoting Post-Conviction
Rule 2(1) (subsequently amended on Sept. 10, 2007 (eff. Jan. 1, 2008), Sept. 9, 2008 (eff. Jan. 1, 2009,
Sept. 20, 2011 (eff. Jan. 1, 2012))), reh’g denied. However, the September 10, 2007 amendment,
effective on January 1, 2008, revised Ind. Post-Conviction Rule 2(1) and included Rule 2(1)(f) which
altered language governing the timing requirements and specifically stated that notices of appeal shall
comply with the timing requirements of Ind. Appellate Rule 9(A). Currently, Ind. Post-Conviction Rule
2(1)(f), titled “Time and procedure for initiating appeal,” states that “[i]f the court grants permission to
file a belated notice of appeal, the time and procedure for filing such notice of appeal is governed by App.
R. 9(A).” To the extent that the rule expressed in Beatty might have rendered timely the State’s cross-
appeal motion following Whitener’s belated notice of appeal, we observe that the current version of Post-
Conviction Rule 2(1) does not contemplate that filing of a belated notice of appeal would allow for cross-
appeal issues to be filed by the State as cross-appeals are sought pursuant to Ind. Appellate Rule 9(D).
Where the State has appealable issues following a final judgment, it should raise them in a timely fashion
or forfeit its opportunity.
We also note that, in Beatty, this court was addressing whether the State could raise on cross-
appeal the question of whether the post-conviction court abused its discretion when it allowed the
defendant to file a belated notice of appeal. As the Beatty court noted, the defendant’s argument that Ind.
Code § 35-38-4-2 precluded the State’s cross-appeal was erroneous because “a petition to file a belated
notice of appeal is authorized and governed by the Post-Conviction Rules; consequently, the proceeding
herein is properly characterized as a post-conviction proceeding rather than a criminal proceeding.” 854
N.E.2d at 409 (citing State v. Lawson, 272 Ind. 541, 400 N.E.2d 128, 128-129 (1980)) (emphases added).
Thus, the court held “the State’s right to cross-appeal from an order granting such a petition is governed
by rule rather than statute.” Id. Where the State challenges on cross-appeal the post-conviction court’s
decision to allow the defendant to file a belated notice of appeal, it is appealing a ruling made at a post-
conviction proceeding, rather than from a direct criminal appeal, and accordingly the limitations imposed
by Ind. Code § 35-38-4-2 do not apply to bar the State from bringing that issue.
22
Finally, to the extent that the principle in Hardley that the State may seek review
of pure questions of law in which such review would not require evidence outside the
record might apply to the instant case, we observe that the Indiana Supreme Court has
made clear that a double jeopardy challenge is not a challenge to a defendant’s sentence.
In McCullough v. State, the defendant on direct appeal raised claims of “insufficient
evidence and double jeopardy but does not seek appellate review of his sentence.” 900
N.E.2d 745, 746 (Ind. 2009) (emphasis added). The State raised by cross-appeal a
challenge to the sentence imposed by the trial court, seeking either a remand for
resentencing due to the alleged inadequacy of the sentencing statement or, alternatively,
requesting that the defendant’s sentence be revised by the appellate court and a longer
sentence be imposed. Id. at 750. The Court held that “the State may not by appeal or
cross-appeal (a) initiate a challenge to a trial court’s criminal sentence that is within the
court’s sentencing authority or (b) seek appellate review and revision of such sentence,”
unless the “defendant requests appellate review and revision of a criminal sentence
pursuant to authority derived from Article 7, Sections 4 or 6 of the Indiana Constitution,”
and that in that case the State was precluded from raising the issue on appeal. Id. at 750-
751. Thus, despite the fact that the defendant raised a double jeopardy claim, the Court
reasoned that the defendant did not challenge his sentence.
Even if the principle expressed in Hardley were to apply to the State’s instant
challenge, its claim could not be construed as challenging Whitener’s sentence as illegal.
Thus, any such claim would be subject to Ind. Appellate Rule 9(A) and the appeal must
be brought within thirty days after the entry of a final judgment.
23
For the foregoing reasons, we affirm Whitener’s conviction for burglary as a class
A felony and the court’s order that Whitener must register as a sex offender as a
condition of probation, and we dismiss the State’s claim that the court erred in merging
Count II into Count I based upon double jeopardy principles.
Affirmed.
BAILEY, J., and VAIDIK, J., concur.
24