Jermaine Marcel Nash v. State of Indiana ( 2013 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the Jul 26 2013, 8:25 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARCE GONZALEZ, JR. GREGORY F. ZOELLER
Dyer, Indiana Attorney General of Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JERMAINE MARCEL NASH, )
)
Appellant-Defendant, )
)
vs. ) No. 45A05-1210-CR-553
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Thomas P. Stefaniak, Jr., Judge
Cause No. 45G04-1107-FB-61
July 26, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
Following a jury trial, Jermaine Nash was convicted of attempted rape, a Class B
felony, and criminal confinement, a Class C felony, for which he was sentenced to
consecutive terms of eighteen and six years, respectively. In addition, Nash admitted to
being a repeat sex offender and received an eight-year sentence enhancement, for an
aggregate sentence of thirty-two years. Nash appeals, raising one issue for our review:
whether his convictions of criminal confinement and attempted rape violate principles of
double jeopardy. Concluding Nash has demonstrated a reasonable possibility that the
evidentiary facts used by the jury to establish attempted rape may also have been used to
establish the essential elements of confinement, we reverse the confinement conviction
and sentence.
Facts and Procedural History
In the summer of 2011, Amy Brown was living at the home of Kishonna Kirk and
Kirk’s daughter, N.J. On the evening of July 18, 2011, Brown invited two childhood
friends, Nash and Shawn Drayton, to visit her at Kirk’s house. Kirk, and later N.J.,
eventually joined them, and throughout the evening, they all watched movies in the living
room. Nash had removed his tennis shoes and left them by the door of Brown’s
bedroom. Brown and Drayton eventually retired to her bedroom, leaving Kirk, N.J., and
Nash in the living room. Brown told Nash to come to her room when the movie was
over. Shortly thereafter, N.J. came to Brown’s room to tell her good night and went to
her bedroom in the basement.
In the early morning hours, as N.J. lay in bed on her stomach, she was awakened
by a shadow passing over her and then she experienced pressure on her back and head
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which felt as though someone was on top of her. A hand or arm was pushing her face
into the pillow causing her to have trouble breathing. She was eventually able to turn her
head and see Nash’s face but was otherwise unable to move due to his holding her down
with his arm on her back. Nash roughly pulled N.J.’s underwear off and then tried to get
her legs apart with his hand. When he was able to separate her legs, he tried to insert his
penis into her vagina but stopped when Kirk came downstairs.
Kirk had slept on the couch, and when she woke up, she noticed Nash’s shoes
were still by the door of Brown’s bedroom. She looked for N.J. in her room and Brown’s
room and then went downstairs. She saw feet reflected in a mirror that sat at the foot of
N.J.’s bed and began yelling, “What’s going on?” Transcript at 162. Nash scrambled off
N.J., unclothed from the waist down, and Kirk saw his erect penis. Kirk also saw that
N.J. was unclothed from the waist down. As Kirk went to the bed to check on her
daughter, Nash gathered up his clothes. Kirk then went to get her cell phone, which was
in the kitchen, calling out for help as she went up the stairs. Nash followed her up the
stairs and into the kitchen. The noise had awakened Brown, who went to check on N.J.
as Kirk picked up a knife and began to scuffle with Nash. Nash eventually fled the
house, barefoot, and the police were called.
Police who had responded to the call at Kirk’s house received a dispatch about a
man one or two blocks away who had been stabbed. An officer who responded to that
scene found Nash, without shoes and with a stab wound to the head. N.J. was taken to
the hospital where she underwent a sexual assault examination. N.J. reported pain to her
back, abdomen, and vagina. Laboratory testing of samples from the sexual assault kit
found the presence of DNA from Nash’s paternal lineage on swabs collected from N.J.’s
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cervix and underwear. Laboratory testing of blood found on a knife in Kirk’s kitchen and
a blood stain near the door found a one in nine quintillion likelihood that Nash was the
source of the blood.
The State charged Nash with attempted rape, a Class B felony; criminal
confinement as a Class C felony because of bodily injury; sexual battery, a Class D
felony; and criminal confinement as a Class D felony. He was also alleged to be a repeat
sexual offender. A jury found Nash guilty of all charges, and Nash admitted to the sexual
offender enhancement. The trial court ordered that the sexual battery and Class D felony
criminal confinement remain as jury verdicts only, entered judgment of conviction on the
attempted rape and criminal confinement as a Class C felony, and sentenced Nash to
consecutive terms of eighteen years and six years, respectively, enhanced by eight years
for the repeat sexual offender finding, for a total sentence of thirty-two years. Nash now
appeals.
Discussion and Decision
I. Standard of Review
Nash contends his convictions of both attempted rape and criminal confinement
violate the Double Jeopardy clause of the Indiana Constitution.1 Whether convictions
violate double jeopardy is a question of law which this court reviews de novo.
Vermillion v. State, 978 N.E.2d 459, 464 (Ind. Ct. App. 2012).
1
Although Nash invokes the Fifth Amendment of the United States Constitution, he does not make any
separate federal argument, focusing his argument solely on the actual evidence test of Indiana double jeopardy
jurisprudence. We therefore do not address the federal double jeopardy provision other than to note that the
statutory elements test of the Indiana double jeopardy clause and the Fifth Amendment test as enunciated in
Blockburger v. United States, 284 U.S. 299 (1932), are substantially the same, Brown v. State, 912 N.E.2d 881, 896
(Ind. Ct. App. 2009), trans. denied, and our courts have held that convictions of both rape and criminal confinement
are not precluded under the Blockburger test, see Purter v. State, 515 N.E.2d 858, 860 (Ind. 1987).
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II. Actual Evidence Test
Article 1, section 14 of the Indiana Constitution provides that “[n]o person shall be
put in jeopardy twice for the same offense.” In Richardson v. State, 717 N.E.2d 32, 49
(Ind. 1999), our supreme court held that two or more offenses are the same offense for
Indiana double jeopardy purposes if, with respect to either the statutory elements of the
challenged crimes or the actual evidence used to obtain the convictions, the essential
elements of one challenged offense also establish the essential elements of another
challenged offense.
To prevail under the actual evidence test, “a defendant must demonstrate a
reasonable possibility that the evidentiary facts used by the fact-finder to establish the
essential elements of one offense may also have been used to establish the essential
elements of a second challenged offense.” Id. at 53. “[U]nder the Richardson actual
evidence test, the Indiana Double Jeopardy Clause is not violated when the evidentiary
facts establishing the essential elements of one offense also establish only one or even
several, but not all, of the essential elements of a second offense.” Spivey v. State, 761
N.E.2d 831, 833 (Ind. 2002). The “reasonable possibility” that the fact-finder used the
same facts to support two convictions cannot be speculative or remote, Griffin v. State,
717 N.E.2d 73, 89 (Ind. 1999), cert. denied, 530 U.S. 1247 (2000), and it must be more
than a “logical possibility,” Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008). It turns on
“a practical assessment of whether the jury may have latched on to exactly the same facts
for both convictions.” Lee, 892 N.E.2d at 1236. It is appropriate to consider the
charging information, jury instructions, and arguments of counsel in evaluating the
evidence from the jury’s perspective. Id. at 1234.
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In Lee, our supreme court noted the difference between cases in which there are
separate facts to support two convictions but the case was presented in such a way that
left a reasonable possibility that the jury used the same facts to establish both, and cases
in which the facts supporting a first charge could theoretically have supported both
convictions but additional facts supporting one of the crimes were highlighted to the jury.
Id. at 1235-36. For example, in Lee, the defendant was convicted of burglary and
attempted armed robbery based on what the supreme court called “evidence [that] boils
down to four facts: [the defendant] barged into the home, had a gun, made threats, and
demanded money.” Id. at 1235. Although the defendant argued that, as a logical matter,
barging into the house could have satisfied both the breaking and entering element of
burglary and the substantial step element of attempted armed robbery, the court noted that
the jury was presented with distinct facts supporting attempted armed robbery beyond
barging into the house, namely, the threats and demands for money after barging through
the door. Id. at 1235-36. The charging information for attempted robbery referenced the
threats, the jury instructions restated the charge, and the State highlighted the specific
facts regarding the threats during closing argument. Id. at 1236-37. The supreme court
found no double jeopardy violation because “[a]s a practical matter, there is no
reasonable possibility that . . . the jury used only the barging into the home and ignored
the extensive testimony of threats, etc. inside the home as substantial steps toward taking
property.” Id. at 1237. Although the barging in could have proved both crimes, there
was not a reasonable possibility that it did.
Contrast the facts of Lee with those of Bradley v. State, 867 N.E.2d 1282, 1284
(Ind. 2007), in which the defendant was charged with confinement and aggravated battery
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for stabbing his wife with a knife in the back, and then pinning her over a toilet and
repeatedly striking her in the head with a hammer. The criminal confinement charge
alleged the defendant was armed with a hammer and caused an open head wound; the
aggravated battery charge alleged defendant caused an open head wound and a knife
wound. The instructions did not specify the injury required to prove each crime.
Although the State argued on appeal that it was reasonable that the jury predicated its
aggravated battery finding solely on the stabbing as evidence of force, the court
concluded that “[f]rom the evidence and instructions, it is reasonable that the jury may
also have found the [force] element [of aggravated battery] satisfied by the evidence of
[the] open head injury inflicted by the defendant with the hammer.” Id. at 1285
(emphasis in original). The court in Lee noted
that more deliberate prosecution of multiple offenses would avoid these
double jeopardy problems. Had the charges, instructions, and closing
argument cited [specific and distinct facts as to each charge], there would
be no double jeopardy question, and the trial and appellate courts would not
have been required to assess the degree of likelihood of overlapping
convictions.
892 N.E.2d at 1237.
Nash contends there is a reasonable possibility the actual evidence used by the
fact-finder in finding him guilty of these two offenses was the same. He was charged
with and convicted of attempted rape, which is proved by evidence that he knowingly or
intentionally took a substantial step toward having sexual intercourse with N.J. when she
was compelled by force or imminent threat of force. See Ind. Code § 35-42-4-1(a)(1);
Ind. Code § 35-41-5-1(a). He was also charged with and convicted of criminal
confinement, which is proved by evidence that he knowingly or intentionally confined
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N.J. without her consent, resulting in bodily injury. See Ind. Code § 35-42-3-3(b)(1)(C).
Considering the factors that may have guided the jury’s determination, the information
charging Nash with these crimes does not specify any facts at all, let alone facts distinct
to each crime. See Appellant’s Appendix at 46 (alleging for attempted rape that Nash
“did knowingly or intentionally attempt to have sexual intercourse with [N.J.], when
[N.J.] was compelled by force or the imminent threat of force . . .” and for criminal
confinement that Nash “did knowingly or intentionally confine [N.J.] without her consent
which resulted in bodily injury to [N.J.] . . . .”). The jury instructions likewise are devoid
of specific factual allegations. See id. at 62-63. However, the prosecutor, during her
closing argument, stated:
[N.J.] testified that she was held down, face-down in her pillow and while
she was being held face-down in her pillow she felt pain to her back, felt
pain to her head and her neck area. That, ladies and gentlemen, is criminal
confinement as a class C felony because when asked, “Were you able to
leave?” She said “no”. Did she sustain bodily injury? Yes. And the
definition of bodily injury includes pain. So what do we have for the
attempted rape? We have [N.J.] saying that he pulled her panties off. We
have [N.J.] saying that she felt his tip, the tip of his penis and it was hard.
She said that she felt the tip of his penis try to enter her vagina. . . . That is
attempted rape. Taking a substantial step toward the commission of a
crime. He was down there, he had his erect penis out. Her clothes, her
bottoms were off and you heard her testify that he opened up her legs, tried
to open up her legs.
Tr. at 369-70. The State argues the closing argument clearly delineated for the jury the
separate evidentiary facts supporting each crime and therefore there is not a reasonable
possibility the jury used the same facts to support both crimes.
The evidence the jury heard, though, is not so clear as the State’s closing argument
or appellate brief would imply. N.J. testified:
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Q [by the State]: Okay, what’s the next thing that you remember happening
after you saw the shadow and laying back down?
A: Well, after that I felt like somebody was on me and then I looked up a
little and I seen [sic] his face.
Q: Let me stop you there.
THE COURT: Ma’am, I can’t understand you. Can you say that again?
A: I looked up and then it was like it was pressure, he put his arm on my
back and then holding me down, pushing my head down and then that’s
when I could tell it was like things were happening . . . .
***
Q: What happened when you felt that pressure? Did you feel any pain?
A: Yeah, on my back.
Q: Could you – did you feel like you could leave at that point?
A: No.
Q: Were you free to go?
A: No.
Q: What do you remember happening next?
***
A: After that that’s when I had umm, I had hair in my face and I couldn’t
breathe and then I felt my underwear –
Q: Okay, you say that your face was down in the pillow?
A: Yes.
***
Q: And you say that you could not breathe?
A: Yes.
Q: Were you hurting anywhere else?
A: Like in my private area.
Q: What was hurting about your private area at this point?
A: Like the entrance part.
***
Q: How did it feel when he was pulling your underwear down?
A: It was rough.
Q: Were you still laying on your stomach?
A: Yes.
Q: Where – were you being held down?
A: Yes.
Q: How were you being held down?
A: With his arm.
Q: Where was his arm?
A: On my back.
Q: Where was your face?
A: In the pillow.
***
Q: After the underwear was being pulled down roughly, like you said,
what do you remember happening next?
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A: Trying to get my legs opened.
Q: . . . How were your legs, how was he trying to get your legs opened?
A: With his other hand.
Q: Can you describe what that felt like?
A: It hurted but it didn’t like – I didn’t want to be there.
***
Q: Was he able to get your legs opened?
A: Yes.
Q: After he got your legs opened, what do you remember happening next?
A: He tried to go in and that’s when my mom came downstairs.
Id. at 93-98. N.J.’s testimony was that she was asleep facedown on her bed when Nash
climbed on top of her, held her down, removed her underwear and tried to penetrate her
with his penis; she had difficulty breathing and felt pain in her back and private area.
Attempted rape inherently involves a restraint on the victim’s liberty. See Wells v. State,
568 N.E.2d 558, 563 (Ind. Ct. App. 1991). For criminal confinement to be a separate
crime, there must be proof of force to effectuate the confinement that goes beyond that
necessary to effectuate the attempted rape. See Ryle v. State, 549 N.E.2d 81, 85 n.7 (Ind.
Ct. App. 1990) (discussing double jeopardy implications of convictions of both rape and
confinement), trans. denied. For instance, in Purter, 515 N.E.2d at 860, rape and
confinement convictions did not violate double jeopardy because the defendant confined
the victim prior to the rape by holding a knife to her throat and forcing her to go to
another room and after the rape by refusing to leave to prevent her from calling police.
See also Sallee v. State, 777 N.E.2d 1204, 1214 (Ind. Ct. App. 2002) (rape and
confinement convictions did not violate double jeopardy when, as victim gave defendant
and his co-defendant a ride, defendant pulled her into the backseat and co-defendant took
over driving, defendant would not let her into the front seat or out of the car despite her
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pleas, and then the two defendants repeatedly raped her after taking her into their house),
trans. denied.
We do not agree with the State that there were “two unique acts of compulsion”
here. Brief of Appellee at 13. The State parses Nash’s individual actions to try to create
a confinement apart from the force used to effectuate the attempted rape. Unlike the facts
of Purter, where the confinement was clearly separate from the rape, the evidence here
shows only that Nash confined N.J. by holding her down on the bed, the same force by
which he attempted to rape her. Neither the charges nor the jury instructions specified
the acts the State in its closing and on appeal relies on, both of which put too fine a point
on N.J.’s testimony. A reasonable possibility exists that the same evidentiary facts used
to establish the commission of the attempted rape were also used to establish all the
essential elements of confinement.
Conclusion
The Indiana double jeopardy provision bars a separate confinement conviction
here because there is a reasonable possibility that, based upon the actual evidence used to
obtain the convictions, the essential elements of attempted rape also established the
essential elements of criminal confinement. Nash’s conviction of criminal confinement is
reversed, and this case is remanded to the trial court to vacate the conviction and amend
Nash’s sentence accordingly.
Reversed and remanded.
FRIEDLANDER, J., and CRONE, J., concur.
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