Roger E. Carlson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 06 2016, 8:20 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
Randy M. Fisher Gregory F. Zoeller
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Roger E. Carlson, April 6, 2016
Appellant-Defendant, Court of Appeals Case No.
02A05-1509-CR-1400
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable John F. Surbeck,
Appellee-Plaintiff Jr., Judge
Trial Court Cause No.
02D04-1411-FA-48
Baker, Judge.
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[1] Roger Carlson appeals following his convictions for Rape,1 a class A felony,
two counts of Criminal Deviate Conduct,2 a class A felony, and Criminal
Confinement,3 a class A felony. Carlson argues that the rape and criminal
deviate conduct convictions violate the prohibition against double jeopardy.
The trial court ordered the sentences for rape and criminal deviate conduct to
be served consecutively, which Carlson contends was erroneous. Finding that
the convictions do not place Carlson in double jeopardy and finding no
sentencing error, we affirm.
Facts
[2] On June 24, 1999, around 11:00 p.m., V.C., who was in her twenties, went to a
bar in Fort Wayne. While at the bar, V.C. met and spoke with a stranger who
identified himself only as “Mike.” It was later determined that “Mike” was
Carlson. Carlson and V.C. talked, danced, and had drinks together throughout
the evening.
[3] Sometime after midnight, V.C. left the bar to walk home. Carlson approached
her in his truck and offered her a ride. She declined. He then forced V.C. into
his truck at gunpoint and drove to a cornfield in northern Allen County. Once
they arrived at the cornfield, Carlson forced V.C. to remove her clothes and
1
Ind. Code § 35-42-4-1.
2
I.C. § 35-42-4-2.
3
I.C. § 35-42-3-3.
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wrapped her bra around her neck. He forced V.C. to perform oral sex on him
and choked her with her bra if she did something he did not like. Carlson
repeatedly forcibly penetrated V.C.’s vagina and anus with his penis. V.C. was
afraid that Carlson would kill or seriously injure her.
[4] After these assaults continued for some time, Carlson then forced V.C. back
into his truck and drove to another location near a railroad track. Once there,
Carlson made V.C. pull down her pants and he raped her again. When she
screamed, Carlson struck her in her vocal cords. Carlson held a large rock up
over V.C.’s head and she prayed that she would see her children again. He
said, “You’re lucky I’m not going to kill you,” and then he let her go, left her
there, and drove away. Tr. p. 38. V.C. eventually made her way to a store and
called her mother, who took her to a hospital. V.C. sustained pain in her head,
neck, and leg, bruising, vaginal tears, widespread redness to her labial and anal
areas, and blunt force trauma to her sexual organs.
[5] A sexual assault examination took place at the Sexual Assault Treatment
Center, and evidence, including DNA samples and vaginal, cervical, anal, and
oral swabs, was collected with a sexual assault kit. Law enforcement was
unable to identify a suspect in 1999 and the case was closed, but the kit and the
evidence were preserved. Around 2013, the Fort Wayne Police Department
began reevaluating cold cases involving sexual assaults. The evidence from
V.C.’s assault was submitted to a national database of DNA profiles. The
evidence indicated that Carlson was V.C.’s attacker.
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[6] On November 19, 2014, the State charged Carlson with class A felony rape,
two counts of class A felony criminal deviate conduct, and class A felony
criminal confinement. A jury trial was held on July 29 and July 30, 2015, and
the jury found Carlson guilty as charged. Following an August 27, 2015,
sentencing hearing, the trial court sentenced Carlson to thirty years
imprisonment for the rape and criminal deviate conduct convictions, to be
served consecutively, and to ten years for the criminal confinement conviction,
to be served concurrently with the other sentences, for an aggregate sentence of
ninety years imprisonment. Carlson now appeals.
Discussion and Decision
I. Double Jeopardy
[7] First, Carlson argues that his convictions for rape and criminal deviate conduct
violate the prohibition against double jeopardy. A double jeopardy claim
presents a pure question of law to which we apply a de novo standard of
review. Sloan v. State, 947 N.E.2d 917, 920 (Ind. 2011). Under Article 1,
Section 14 of the Indiana Constitution, two offenses are the same offense in
violation of this double jeopardy provision where, with respect to either the
statutory elements of the challenged offenses or the actual evidence used to
convict, the essential elements of one of the offenses also establishes the
essential elements of the other challenged offense. Spivey v. State, 761 N.E.2d
831, 832 (Ind. 2002).
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[8] Carlson concedes that the statutory elements of rape and criminal deviate
conduct are not the same, arguing solely that the same actual evidence was used
to support both convictions. In considering this argument, an appellate court
will find a double jeopardy violation only where there is a reasonable possibility
that the evidentiary facts used by the factfinder to establish the essential
elements of one of the offenses may also have been used to establish all the
essential elements of the other challenged offense or offenses. Hines v. State, 30
N.E.3d 1216, 1222 (Ind. 2015). Our Supreme Court has emphasized that as
long as “each conviction require[s] proof of at least one unique evidentiary
fact,” there is no violation of the actual evidence test. Bald v. State, 766 N.E.2d
1170, 1172 (Ind. 2002).
[9] The evidence supporting Carlson’s rape conviction included the fact that he had
vaginally penetrated V.C. The evidence supporting the criminal deviate
conduct convictions, on the other hand, included the respective facts that
Carlson had orally and anally penetrated V.C. In other words, each of these
convictions requires proof of a unique evidentiary fact. We find no violation of
double jeopardy principles and decline to overturn the convictions on this basis.
II. Consecutive Sentences
[10] Next, Carlson argues that the consecutive sentences for his rape and criminal
deviate conduct convictions was erroneous. He frames his argument by citing
to the continuing crime doctrine. This doctrine, however, is “limited to
situations where a defendant has been charged multiple times with the same
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offense.” Hines, 30 N.E.3d at 1219. Here, as noted above, Carlson was charged
and convicted of three distinct offenses, each requiring proof of unique and
distinct facts. Therefore, the continuing crime doctrine does not apply.
[11] We suspect that Carlson intended to argue that his crimes constituted a single
episode of criminal conduct, rendering consecutive sentences erroneous. See
Slone v. State, 11 N.E.3d 969, 972 (Ind. Ct. App. 2014) (holding that to
determine whether crimes are a single episode of criminal conduct, focus is on
the timing of the offenses and the simultaneous and contemporaneous nature of
the crimes). Even if Carlson had made this argument, however, he would not
have succeeded. Carlson forced V.C. into his truck at gunpoint and drove her
to a cornfield, where he forced her to remove all of her clothes, choked her with
her bra, and assaulted her orally, vaginally, and anally. Just when she thought
the nightmare was over, he forced her back into the truck and drove her to a
second secluded location. The second time, he forced her to take off her pants
and committed a new, second round of sexual assaults against her, this time
striking her in the vocal cords. In other words, he committed multiple sexual
assaults on his victim in two places, at two times, in different ways, separated
by a subsequent confinement and after transporting her by force a second time.
We do not find that these actions constitute a single episode of criminal
conduct; consequently, we find no error in the trial court’s decision to order the
sentences be served consecutively.
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[12] The judgment of the trial court is affirmed.
May, J., and Brown, J., concur.
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