Opinion
22A-CR-2785
08-28-2023
Muhammed Cross, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEYS FOR APPELLANT Valerie K. Boots Talisha R. Griffin Marion County Public Defender Agency Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Kyle M. Hunter Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Jeffrey L. Marchal, Judge The Honorable Grant W. Hawkins, Judge Trial Court Cause No. 49D31-1912-F3-47483
ATTORNEYS FOR APPELLANT
Valerie K. Boots
Talisha R. Griffin
Marion County Public Defender Agency
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Kyle M. Hunter
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] Muhammed Cross appeals his convictions for one count of Attempted Rapeand one count of Rape, as Level 3 felonies. We affirm the convictions and remand for correction of the abstract of judgment and judgment of conviction.
Ind. Code § 35-42-4-1(a)(1); § 35-41-5-1(a).
Ind. Code § 35-42-4-1(a)(2).
Issues
[¶2] Cross presents three issues for review:
I. Whether he was entitled to attack the credibility of the complaining witness by introducing evidence of her prior conviction for conspiracy to commit armed robbery;
II. Whether, with reference to Count 1, Cross was convicted of rape despite the State's admission to a lack of penetration; and
III. Whether Cross was convicted of attempted rape absent evidence of force.
Facts and Procedural History
[¶3] During the evening of December 13, 2019, J.S. returned to her Indianapolis home to find herself locked out and unable to contact her roommate. J.S. then called her friend Alfonzo Brown, who lived nearby with his mother and his mother's boyfriend, Cross. Brown escorted J.S. to his home, gave J.S. his bedroom, and went to the living room sofa to watch television and sleep.
[¶4] Early the next morning, J.S. awoke with the realization that "fingers were going in and out of [her] vagina roughly." (Tr. Vol. III, pg. 179.) J.S., who was on her stomach, looked over her shoulder to see that Cross was on top of her, with one leg on either side. J.S. was unable to get up. Cross attempted to penetrate J.S.'s anus with his thumb, and J.S. fully awakened and told Cross to stop. Cross exited the room, pausing to bring a finger to his mouth in a shushing motion.
[¶5] J.S. dressed and went into the living room to awaken Brown. She was "crying hysterically," and Brown advised her to call 9-1-1. (Id. at 204.) Indianapolis-Marion County police officers responded to J.S.'s call, and an ambulance transported her for medical treatment and collection of a rape kit. Cross was arrested, in a "highly intoxicated" state, "muttering incoherently to himself." (Tr. Vol. IV, pg. 16.)
[¶6] On December 17, the State filed two rape charges against Cross. The first count alleged that Cross had used force to compel J.S. to engage in other sexual conduct (anal penetration); the second count alleged that Cross had engaged in other sexual conduct (digital penetration) with J.S. while J.S. was unaware that the conduct was occurring.
[¶7] Cross was brought to trial before a jury on August 29, 2022. J.S. was called as the State's first witness. Consistent with the trial court's ruling on the State's motion in limine, J.S. admitted to having prior convictions for check deception and obtaining a controlled substance by fraud or deceit but was not questioned in regard to her conviction for conspiracy to commit armed robbery. Cross unsuccessfully renewed his request to elicit evidence of the latter conviction.
[¶8] During her testimony, J.S. clarified that Cross did not actually penetrate her anus although he had tried to do so. Consequently, the State argued in closing that Count 1 was a crime of attempt. The trial court instructed the jury on the elements of attempted rape and also defined attempt and explained what constitutes a substantial step in the context of an attempted crime. Verdict forms were provided to the jury by court personnel without examination by the State or defense counsel. The verdict form for Count 1 indicated that the charged crime was rape as opposed to attempted rape. The jury returned two guilty verdicts, using the verdict forms provided without alteration.
[¶9] On October 28, Cross was given two concurrent sentences of sixteen years imprisonment, with four suspended. He now appeals.
Discussion and Decision
Impeachment
[¶10] Indiana Evidence Rule 609(a) provides:
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime must be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, or criminal confinement; or (2) a crime involving dishonesty or false statement, including perjury.
Consistent therewith, J.S. admitted to having two prior convictions for crimes involving dishonesty. Cross contends that he should have been permitted to attack J.S.'s credibility by eliciting evidence of her third prior conviction, conspiracy to commit armed robbery.
A person conspires to commit a crime when they intend to commit the crime and agree with another person to do so. I.C. § 35-41-a5-2(a). A conspiracy to commit a felony is the same level offense as the underlying felony. I.C. § 35-41-5-2(a).
[¶11] Generally, a trial court's ruling on the admission or exclusion of evidence will be accorded a great deal of deference. Norton v. State, 137 N.E.3d 974, 983 (Ind.Ct.App. 2019), trans. denied. "But a trial court's interpretation of a rule of evidence or a statute presents an issue of law that we review de novo." Id.
[¶12] Our Indiana Supreme Court has observed: "It is illogical to assume that a conviction of any crime reflects, ipso facto, on the credibility of the witness as to truth and veracity." Ashton v. Anderson, 258 Ind. 51, 60, 279 N.E.2d 210, 215 (1972). However, those convictions for crimes of an infamous nature or crimes involving dishonesty or false statement may be used for impeachment purposes. Id. at 62-63; 279 N.E.2d at 217.
[¶13] The plain language of Rule 609 does not include crimes of conspiracy. In arguing for an expansion of the rule, Cross points to two decisions from other jurisdictions. In State v. Ruan, 419 N.W.2d 734, 738 (Iowa Ct. App. 1987), the Iowa Court of Appeals held "it logically follows . . . that if the substantive offense underlying a conspiracy conviction is an impeachable offense, then the conspiracy conviction should be usable for impeachment purposes." Also, Alabama's Supreme Court has held that conspiracy to commit a crime involving moral turpitude can be used to impeach a witness. See G.M. Mosley Contractors, Inc. v. Phillips, 487 So.2d 876, 879 (Ala. 1986). However - as the State observes - this authority predated Indiana's January 1, 1994, adoption of Evidence Rule 609. This persuasive authority was available to the drafters of our rule, yet conspiracy was not included as an impeachable offense. The rule was last amended in 2014, without adding conspiracy to the list. Cross has not shown that the exclusion of J.S.'s conspiracy conviction was erroneous.
Count 1
[¶14] Cross was initially charged with two counts of rape. Count 1 alleged that he violated Indiana Code Section 35-42-4-1(a)(1), which provides in pertinent part that a person who knowingly or intentionally causes another person to perform or submit to other sexual conduct (as defined in IC 35-31.5-2-221.5) when the other person is compelled by force or imminent threat of force, commits rape, a Level 3 felony. Count 2 alleged that Cross violated Section 35-42-4-1(a)(2) when he knowingly or intentionally caused J.S. to submit to other sexual conduct when she was unaware that the other sexual conduct was occurring.
[¶15] "Other sexual conduct," as defined in Indiana Code Section 35-31.5-2-221.5, is "an act involving: (1) a sex organ of one (1) person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object." An attempt to commit a crime is a lesser-included offense of the crime. I.C. § 35-31.5-2-168(2).
[¶16] According to Cross, the jury convicted him of rape, as originally charged in Count 1, despite the State's admission that Cross did not, in fact, anally penetrate J.S. Our review of the record leads us to conclude that the jury was asked to convict Cross of attempted rape and did so. In closing argument, the prosecutor specifically referenced Count 1 and referred to it as "the attempt to rape by force." (Tr. Vol. IV, pg. 88.) He went on to explain to the jury that the State was seeking a conviction for attempted rape because Cross "did not succeed in it but did create a substantial step." (Id.) He referenced J.S.'s testimony that Cross "tried" to put his thumb inside her anus and was "unsuccessful." (Id.) After closing arguments, the trial court instructed the jury on the elements of attempted rape and provided instructions defining attempt and a substantial step.
[¶17] Unfortunately, the verdict form for Count 1 was not amended to conform to the evidence and final instructions. Also, the abstract of judgment reflects convictions for two counts of rape. In this situation, the remedy is remand for correction of the abstract of judgment and judgment of conviction. See Borum v. State, 951 N.E.2d 619, 632 (Ind.Ct.App. 2011) (remanding to correct abstract of judgment and judgment of conviction to properly reflect conviction consistent with jury instruction).
Sufficiency of the Evidence
[¶18] Cross also contends that the State presented insufficient evidence of force to support the conviction on Count 1. According to Cross, "There is nothing in the record that supports Cross was willing to use a weapon or cause injury to J.S. When J.S. said stop, Cross got off of her." Appellant's Brief at 19.
[¶19] The standard of review for the claim that a conviction is not supported by sufficient evidence is as follows:
When reviewing the sufficiency of the evidence to support the conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling. Appellate courts affirm the conviction unless no reasonable factfinder could find the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (quotations and citations omitted, emphasis in original).
[¶20] In the sufficiency context, "the force necessary to sustain" a conviction of rape "need not be physical," and "it may be inferred from the circumstances." Bryant v. State, 644 N.E.2d 859, 860 (Ind. 1994). J.S. testified that, when Cross attempted to penetrate her anus with his thumb, he was on top of her as she lay on her stomach. Cross was straddling her with one leg on either side and J.S. realized that she could not get up. There is sufficient evidence to support the jury's reasonable conclusion that J.S.'s submission to the attempted other sexual conduct with Cross was compelled by force.
Conclusion
[¶21] Cross was not entitled to attack the credibility of a witness by eliciting evidence of an offense other than those enumerated in Evidence Rule 609. Sufficient evidence supports his conviction for attempted rape. We remand with instructions to correct the abstract of judgment and judgment of conviction.
[¶22] Affirmed and remanded with instructions.
Tavitas, J., and Kenworthy, J., concur.