Charles S. Whitham v. State of Indiana

Dec 30 2015, 7:47 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Gregory F. Zoeller
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles S. Whitham, December 30, 2015
Appellant-Defendant, Court of Appeals Case No.
39A01-1504-CR-134
v. Appeal from the Jefferson Circuit
Court
State of Indiana, The Honorable W. Gregory Coy,
Appellee-Plaintiff. Special Judge
Trial Court Cause No.
39C01-1309-FA-883
Najam, Judge.
Statement of the Case
[1] Charles S. Whitham appeals his convictions for attempted murder, a Class A
felony (Count I); aggravated battery, a Class B felony (Count II); criminal
confinement, as a Class B felony (Count V); two counts of battery, each as a
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Class C felony (Counts III and IV); and strangulation, a Class D felony (Count
VI). Whitham raises three issues for our review, which we consolidate and
restate as whether the trial court abused its discretion in the admission of
certain evidence. We also raise sua sponte whether several of Whitham’s
convictions violated the constitutional prohibition against double jeopardy.
[2] We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[3] On July 31, 2012, Whitham attacked and nearly killed his grandmother, Velma
Brown, in her bedroom. Whitham grabbed Brown’s hands and struck her with
her own hands across her face and on her chest. Whitham told Brown that she
“was too old” and that she “ought to die.” Tr. at 75. Whitham then “put his
hands on [Brown’s] neck and squeezed,” choking Brown on her bed. Id. at 76.
Brown blacked out and at some point awoke on the floor of her bedroom but
did not “know how long [she had] laid there.” Id. at 77. When she was able to
get up, she went to her granddaughter Sherry’s house, and Sherry’s husband
called the police.
[4] On September 9, 2013, the State charged Witham with attempted murder, a
Class A felony (Count I); aggravated battery, a Class B felony (Count II);
criminal confinement, as a Class B felony (Count V); two counts of battery,
each as a Class C felony (Counts III and IV); and strangulation, a Class D
felony (Count VI). Each of the State’s charges was based on Whitham’s July 31
attack on Brown.
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[5] At his ensuing jury trial, the State called Brown to testify and asked her about
times Whitham had attacked her prior to July 31. Brown testified to two prior
incidents. First, she testified that, around the end of May 2012, Whitham had
hit her across the left side of her head. Whitham’s hit was so hard both of
Brown’s hearing aids fell out. Sherry later testified that she had helped Brown
find the hearing aids after that incident. Second, Brown testified that, the day
before the July 31 attack, Whitham had “jerked [her] out of the bed” by her
evening gown, which tore. Id. at 64. Out of bed, Brown “slipped and hit [her]
head on the corner of the chest of drawers,” which caused a laceration on the
side of her head. Id. Brown used her evening gown to clean up the blood from
that laceration. The State had that gown, which was blood-stained, admitted
into evidence.
[6] Later during the jury trial, the State called Dr. Dean Hawley to testify. Dr.
Hawley is an expert in, among other things, clinical forensic medicine, which
includes identifying strangulation injuries and determining their medical
consequences. Dr. Hawley testified that he had reviewed photographs of the
injuries Brown sustained on her neck that were taken immediately after the July
31 attack. According to Dr. Hawley, those photographs demonstrated “a
ligature strangulation mark,” that is, that the strangulation had occurred by use
of an object rather than by hand. Id. at 359. Dr. Hawley testified that Brown’s
injury was “so severe . . . [t]he skin [wa]s completely wiped off . . . by the
intensity of the pressure of the ligature around the neck.” Id. Dr. Hawley
further testified that unconsciousness in the victim likely occurred “within
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seconds” of the strangulation, and that he had never seen an injury this severe
in a nonfatal case. Id. at 361. When asked whether he had “an opinion as
to . . . the source of that injury,” Dr. Hawley opined: “I’m pretty comfortable
saying that . . . this is a wire cord wrapped around the neck.” Id. at 362.
[7] Also during the jury trial, the State introduced into evidence the contents of a
phone conversation Whitham had had with his mother, Cheryl, while
Whitham was incarcerated for the instant offenses. In that conversation,
Whitham acknowledged having Cheryl tell Brown that he would relocate to
Alabama if Brown agreed to not cooperate with the prosecution. As Whitham
put it, Brown was the State’s “prime witness” and “without her they can’t do
sh*t.” State’s Ex. 40 at 5.
[8] The jury found Whitham guilty as charged. The trial court entered its judgment
of conviction against Whitham for each count, and it sentenced him to an
aggregate term of thirty-six years in the Department of Correction. This appeal
ensued.
Discussion and Decision
Issue One: Admission of Evidence
[9] On appeal, Whitham challenges the trial court’s admission of Brown’s
testimony regarding the two pre-July 31 attacks, Dr. Hawley’s testimony, and
the jailhouse phone conversation. As our supreme court has explained:
Generally, a trial court’s ruling on the admission of evidence is
accorded a great deal of deference on appeal. Because the trial
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court is best able to weigh the evidence and assess witness
credibility, we review its rulings on admissibility for abuse of
discretion and only reverse if a ruling is clearly against the logic
and effect of the facts and circumstances and the error affects a
party’s substantial rights.
Hall v. State, 36 N.E.3d 459, 467 (Ind. 2015) (citations and quotation marks
omitted). With that standard in mind, we turn to Whitham’s arguments on
appeal.
Prior Incidents
[10] Whitham first asserts that the trial court erred when it permitted Brown to
testify to two occasions before July 31, 2012, in which Whitham attacked
Brown. In the trial court, Whitham objected on the ground that this testimony
violated Indiana Evidence Rule 404(b), which provides in relevant part as
follows:
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the
character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence
may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident. On request by a
defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any
such evidence that the prosecutor intends to offer at trial;
and
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(B) do so before trial—or during trial if the court, for good
cause, excuses lack of pretrial notice.
The State responded to Whitham’s Rule 404(b) objection on the ground that
Brown’s testimony regarding the prior acts was properly admissible to show
“the relationship between the parties and the defendant’s motive, which the
State allege[d] to be hostility.” Appellant’s App. at 282. The trial court agreed
with the State and overruled Whitham’s objection.
[11] As we have explained:
[Indiana Evidence Rule 404(b)] is designed to prevent the jury
from assessing a defendant’s present guilt on the basis of his
propensities—the so-called “forbidden inference.” . . .
In assessing the admissibility of 404(b) evidence a trial court must
(1) determine that the evidence of other crimes, wrongs, or acts is
relevant to a matter at issue other than the defendant’s propensity
to commit the charged act and (2) balance the probative value of
the evidence against its prejudicial effect pursuant to Indiana
Evidence Rule 403. Rule 403 provides that “[a]lthough relevant,
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury . . . .”
“[P]roof of the defendant’s motive to commit the charged crime
lends itself to three legitimate theories of logical relevance.” 1
[Edward J.] Imwinkelried, [Uncharged Misconduct Evidence] §
5:35 (1999). “Evidence of motive may be offered to prove that
the act was committed, or to prove the identity of the actor, or to
prove the requisite mental state.” 22 Charles Alan Wright &
Kenneth W. Graham, Jr., Federal Practice & Procedure § 5240
(1978).
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When evidence of motive is offered for those purposes,
“[n]umerous cases have held that where a relationship between
parties is characterized by frequent conflict, evidence of the
defendant’s prior assaults and confrontations with the victim may
be admitted to show the relationship between the parties and
motive for committing the crime.” Iqbal v. State, 805 N.E.2d 401,
408 (Ind. Ct. App. 2004) (citing Hicks [v. State], 690 N.E.2d [215,]
222 [(Ind. 1997)]; Haggenjos v. State, 441 N.E.2d 430, 431 (Ind.
1982)); see also 1 Imwinkelried, supra, § 4:19 (2008) (“When the
uncharged acts of domestic violence are directed against the same
spouse or partner alleged in the pending charge, there is little or
no need to invoke character reasoning in order to justify the
admission of the evidence . . . . [T]he trial judge can readily
admit the evidence on a noncharacter motive theory; the
uncharged acts evidence hostility toward the victim, and in turn
that hostility may be the motive for the charged act of domestic
violence.”).
Embry v. State, 923 N.E.2d 1, 9 (Ind. Ct. App. 2010) (some citations omitted;
alterations and some omissions in original), trans. denied.
[12] We cannot say that the trial court abused its discretion when it admitted
Brown’s testimony of the two prior attacks to show Whitham’s motive for the
July 31 attack. The Indiana Supreme Court has made clear that “hostility is a
paradigmatic motive for committing a crime.” Hicks, 690 N.E.2d at 222
(quotations omitted). And where the defendant and the victim have a
frequently hostile relationship, evidence of those prior hostilities
“are . . . usually admissible” under Rule 404(b). Id. at 222-23. Here, Brown’s
testimony regarding the two pre-July 31 attacks demonstrated Whitham’s
pattern of hostility towards Brown and Whitham’s motive for the July 31
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attacks. Thus, we cannot say that the trial court abused its discretion when it
admitted this testimony under Rule 404(b).1 We also note that Whitham does
not challenge the admission of this evidence under Rule 403 on appeal.
Dr. Hawley’s Testimony
[13] Whitham next asserts that the trial court improperly allowed Dr. Hawley to
opine that Brown had been the victim of ligature strangulation, which Whitham
characterizes as “speculation and not sufficiently reliable.” Appellant’s Br. at
13. In essence, Whitham argues that Dr. Hawley’s opinion was unfounded
because Brown never complained about having been strangled by a ligature;
because Dr. Hawley never personally examined Brown; because Brown was not
treated for ligature strangulation following the July 31 attack; and because Dr.
Hawley could not rule out the possibility that the marks on Brown’s neck were
caused by the prior incident in which Whitham had pulled Brown by her
evening gown.
[14] But Dr. Hawley did rely on photographic evidence of Brown’s injuries, and his
qualifications as an expert were well established. As our supreme court has
recognized, “[d]octors often testify about the injuries depicted in photographs
even though they were not present when the pictures were taken and did not
1
In his brief on appeal, Whitham also asserts that it is not clear how much time passed between the prior
events and the charged conduct, and that “the prior bad conduct . . . was not of a substantially similar
nature” to the charged conduct. Appellant’s Br. at 11. But our supreme court has held that these concerns
“do not render 404(b) evidence per se inadmissible.” Hicks, 690 N.E.2d at 222.
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personally examine the injuries depicted.” Malinski v. State, 794 N.E.2d 1071,
1085 (Ind. 2003). Whitham’s argument on appeal simply asks this court to
substitute its judgment for the trial court’s, which we will not do. 2 We cannot
say that the trial court abused its discretion when it admitted Dr. Hawley’s
testimony.
Jailhouse Phone Conversation
[15] Whitham next asserts that the trial court abused its discretion when it permitted
the State to introduce into evidence his jailhouse phone conversation with his
mother. According to Whitham, this evidence was both irrelevant and unfairly
prejudicial. Evidence is relevant if “it has any tendency to make a fact more or
less probable than it would be without the evidence” and “the fact is of
consequence in determining the action.” Evid. R. 401. However, a court may
exclude relevant evidence “if its probative value is substantially outweighed by
a danger of . . . unfair prejudice.” Evid. R. 403.
[16] We cannot say that the trial court abused its discretion when it concluded that
the phone call was relevant. In that phone call, Whitham admitted to his
mother that, if Brown did not cooperate with the State, he would move to
Alabama upon his release. Again, as Whitham put it, Brown was the State’s
“prime witness” and “without her they can’t do sh*t.” State’s Ex. 40 at 5. This
2
We also reject Whitham’s cursory assertion that Dr. Hawley’s testimony, “even if admissible, would tend
to confuse the jury.” Appellant’s Br. at 14.
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evidence tended to show Whitham’s consciousness of guilt, which made it
relevant. E.g., Robinson v. State, 720 N.E.2d 1269, 1272 (Ind. Ct. App. 1999).
[17] We also reject Whitham’s argument under Rule 403. At trial, Whitham
requested and received a partial redaction of the phone call, yet on appeal he
asserts that various portions of that conversation that remained unredacted
unfairly prejudiced him. Because Whitham did not object to the admission of
the redacted version of the phone call at trial, he has failed to preserve this
argument for our review. E.g., Griffin v. State, 16 N.E.3d 997, 1006 (Ind. Ct.
App. 2014).
[18] In sum, we cannot say that the trial court abused its discretion in the admission
of evidence.
Issue Two: Double Jeopardy
[19] We sua sponte conclude that the entry of conviction for five of the State’s
charges against Whitham violated his right to be free from double jeopardy.
Although Whitham did not object on double jeopardy grounds at trial,
questions of double jeopardy implicate fundamental rights and, as such, may be
raised for the first time on appeal, or even by this court sua sponte. See Smith v.
State, 881 N.E.2d 1040, 1047 (Ind. Ct. App. 2008). Whether convictions violate
double jeopardy is a pure question of law, which we review de novo. Rexroat v.
State, 966 N.E.2d 165, 168 (Ind. Ct. App. 2012), trans. denied.
[20] Entry of conviction for both an offense and its lesser-included offenses “is
impermissible under both state and federal double jeopardy rules.” Wentz v.
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State, 766 N.E.2d 351, 359-60 (Ind. 2002). An offense is an inherently lesser
included offense when it may be established by proof of the same material
elements or less than all the material elements that define the “greater” crime
charged. Smith, 881 N.E.2d at 1046. An offense is a factually lesser included
offense when the charging instrument alleges “the means used to commit the
crime charged include all of the elements of the alleged lesser included offense.”
Id. (citations omitted). In other words, to determine if an offense is factually
included, a trial court will look to the defendant’s conduct as charged. Harvey v.
State, 719 N.E.2d 406, 411 (Ind. Ct. App. 1999).
[21] Again, here the trial court entered its judgment of conviction against Whitham
for attempted murder, a Class A felony (Count I); aggravated battery, a Class B
felony (Count II); criminal confinement, as a Class B felony (Count V); two
counts of battery, each as a Class C felony (Counts III and IV); and
strangulation, a Class D felony (Count VI). Each charge arose from the July 31
attack. As the prosecutor explained to the jury during his closing argument:
We have charged [Whitham] with attempt[ed] murder, and we
have to prove these elements to you[:] that he acted with the
specific intent to kill, that he manually applied pressure to her
neck or applied a ligature to her neck and that impeded breathing
or blood circulation, and that that conduct constitutes a
substantial step towards the commission of attempt[ed] murder.
I want to talk to you about intent to kill. These injuries represent
a violent[,] forceful assault. The injury is not an accident. You
heard testimony from Dr. [Hawley] that within a reasonable
degree of medical certainty a ligature had been wrapped, looped
around her neck twice, and that is evidenced by the two
(inaudible) that you can see. The two (inaudible) showing that
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the ligature was looped. There’s only one reason you put a
ligature around someone’s neck and loop it twice. That’s to kill
them. This is not a gentle pull. You have to intend to pull that
ligature tight enough to dig into the skin. That’s not an
accident . . . . That is acting with a conscious objective to kill.
[Brown] was not conscious for this portion of the attack, and
keep that in mind because the only reason you put a ligature
around the neck of someone who’s unconscious is to close the
deal. . . . All of those pieces of evidence direct you to the
conclusion that he intended to kill his grandmother that night.
We have also charged Mr. Whitham with aggravated battery.
We have to prove that he acted knowingly and intentionally and
that he inflicted injury on [Brown] that created a substantial risk
of death. Dr. Hawley testified that every strangulation creates a
substantial risk of death. . . . We charged Mr. Whitham with
battery by means of a deadly weapon using a ligature or his
hands. The Court will give you an instruction on the definition
of deadly weapon . . . but essential[ly] if an item or thing is used
in a manner that is readily capable of inflicting serious bodily
injury[] it can be a deadly weapon. We’ve charged him with
battery causing serious bodily injury. When you batter someone
and you cause them to go unconscious or you inflict
asphyxiation on them, that’s serious bodily injury. We’ve
charged him with criminal confinement. She was on that bed.
You better believe she was trying to get away. Eventually, she
was able to, but what was stopping her was [Whitham] over her
holding her by the hands, beating her with her own hands and
choking her and using the ligature. The serious bodily injury,
again, unconsciousness and asphyxiation. We have charged him
finally with strangulation, and that is applying pressure to her
throat or neck or her mouth or nose in a manner that impeded
the normal breathing or blood circulation.
Tr. at 458-61.
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[22] Each of Whitham’s convictions below Count I, the Class A attempted murder
conviction, is a lesser offense to that conviction. First, this court has long held
that aggravated battery is an inherently lesser included offense to attempted
murder. See Meriweather v. State, 659 N.E.2d 133, 141-42 (Ind. Ct. App. 1995),
trans. denied. Thus, we reverse Whitham’s conviction for Count II, aggravated
battery, a Class B felony.
[23] Second, on the facts of this case, Count V, criminal confinement, is a factually
lesser included offense to attempted murder. The charging information alleged
that Whitham had committed attempted murder either when he intentionally
manually applied pressure to Brown’s neck and impeded her normal breathing
or blood circulation or when he intentionally applied a ligature to her neck and
impeded her normal breathing or blood circulation. Appellant’s App. at 25.
Likewise, the charging information alleged that Whitham had committed
criminal confinement, as a Class B felony, when he knowingly or intentionally
confined Brown, without her consent, in a manner that resulted in serious
bodily injury, namely, Brown’s unconsciousness or asphyxiation by manual
and/or ligature strangulation. Id. at 26. During his closing argument, the
prosecutor stated that the factual basis for the allegation that Whitham had
“confined” Brown was that Whitham had been “over her holding her by the
hands, beating her with her own hands and choking her and using the ligature.”
Tr. at 461. As the prosecutor made clear during his closing argument, it was
impossible for the jury to have found Whitham guilty of attempted murder
without having found the facts underlying the confinement charge to be true.
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See Harvey, 719 N.E.2d at 412. In other words, there was no evidence of
confinement beyond the confinement associated with the attempted murder.
Thus, we reverse Whitham’s conviction for Count V, criminal confinement as a
Class B felony.
[24] Third, Counts III and IV, Whitham’s Class C felony battery convictions, are
also factually lesser included offenses to the attempted murder conviction. One
of the battery charges alleged that Whitham had intentionally touched Brown in
a rude, insolent, or angry manner by means of a deadly weapon, namely, a
ligature or Whitham’s hands. Appellant’s App. at 25-26. The other alleged
that Whitham had intentionally touched Brown in a rude, insolent, or angry
manner, which resulted in serious bodily injury, namely Brown’s
unconsciousness or asphyxiation by manual and/or ligature strangulation. Id.
at 26. In other words, again, it was impossible for the jury to have found
Whitham guilty of attempted murder without having found the facts underlying
the battery charges to be true. As such, we reverse Whitham’s convictions
under Counts III and IV, the Class C felony battery convictions.
[25] Fourth, and finally, Whitham’s conviction for Count VI, strangulation, a Class
D felony, is also a factually lesser included offense to the attempted murder
conviction. This charge alleged that Whitham had intentionally applied
pressure to the throat or neck of Brown in a manner that impeded her normal
breathing or blood circulation. Id. at 26. As with the other charges, the facts in
support of this allegation were included in the facts used by the State to show
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that Whitham attempted to murder Brown. We reverse Whitham’s conviction
on Count VI.
[26] We briefly note that, because Whitham received concurrent sentences for each
of his convictions, our holding that his lesser-included offenses must be vacated
does not affect his total sentence. And Whitham’s concurrent sentences do not
affect our double jeopardy analysis. Concurrent sentences do not cure double
jeopardy violations. See, e.g., Bunch v. State, 697 N.E.2d 1255, 1257 (Ind. 1998);
Carroll v. State, 740 N.E.2d 1225, 1233 (Ind. Ct. App. 2000), trans. denied.
[27] In sum, we affirm Whitham’s conviction for Count I, attempted murder, a
Class A felony. However, we reverse Whitham’s convictions for aggravated
battery, a Class B felony (Count II); criminal confinement, as a Class B felony
(Count V); battery, as a Class C felony (Count III); battery, as a Class C felony
(Count IV); and strangulation, a Class D felony (Count VI). Each of these
offenses was a lesser-included offense to Whitham’s conviction for attempted
murder. Thus, we remand with instructions that the trial court vacate
Whitham’s lesser-included offenses.
[28] Affirmed in part, reversed in part, and remanded with instructions.
Riley, J., and May, J., concur.
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