Lavonte A. Wilderness v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 26 2016, 9:16 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony S. Churchward Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lavonte A. Wilderness, April 26, 2016
Appellant-Defendant, Court of Appeals Case No.
02A03-1510-CR-1725
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D06-1503-F3-23
Altice, Judge.
Case Summary
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[1] Lavonte A. Wilderness appeals his convictions and sentence for Rape as a
Level 1 felony, Criminal Confinement as a Level 5 felony, and Strangulation as
a Level 6 felony. He raises the following issues for our review:
I. Did the trial court abuse its discretion in instructing the jury?
II. Is Wilderness’s sentence inappropriate?
[2] We affirm.
Facts & Procedural History
[3] On the evening of August 11, 2014, L.S. was making the return trip to her
home in Decatur, Indiana after visiting her family in Chicago for the weekend.
She took a bus from Chicago to Fort Wayne, where she had left her car parked
near the bus station. While making the three-block walk to her car after getting
off the bus, L.S. crossed paths with Wilderness. As soon as she walked past
him, Wilderness turned around and pointed a gun at L.S.’s back and told her to
keep walking. When they reached L.S.’s car, Wilderness took her keys and cell
phone. He unlocked the car, threw her luggage in the trunk, and got in the
passenger side. While pointing the gun at her, he told L.S. to get into the car
and drive. L.S. told him that she did not have enough gas in the car, so they
stopped at a gas station. Wilderness threatened to shoot L.S. in the gas station
if she did not behave normally.
[4] After L.S. put gas in the car, Wilderness directed her to drive to a dead-end
street. Wilderness then yanked the gearshift into park and began choking L.S.
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He then got out of the car and walked around to the driver’s side, where he
resumed choking L.S. When L.S. tried to fight back, Wilderness punched her
in the eye. Wilderness then dragged L.S. out of the car and raped her vaginally
and anally. Afterward, Wilderness got up and walked away. L.S. vomited on
the ground, then got into her car and drove home.
[5] While en route to Decatur, L.S. called Theresa Bodle, who went to L.S.’s house
and found her lying on the floor, crying and shaking in a fetal position. Bodle
called the police and took L.S. to a medical center where she underwent a
sexual assault examination. DNA samples collected during the exam were
consistent with the DNA profile of Wilderness.
[6] The State ultimately charged Wilderness with Level 1 felony rape, Level 5
felony criminal confinement, and Level 6 felony strangulation. Following a
two-day jury trial, Wilderness was found guilty as charged. On September 16,
2015, the trial court sentenced Wilderness to consecutive terms of forty years
for rape, six years for criminal confinement, and two and a half years for
strangulation, for an aggregate sentence of forty-eight and a half years.
Wilderness now appeals.
Discussion & Decision
I. Jury Instruction
[7] Wilderness’s rape charge was elevated to a Level 1 felony based on the State’s
allegation that he committed the offense while armed with a deadly weapon
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and/or threatening the use of deadly force. See Ind. Code § 35-42-4-1.
Wilderness argues that the trial court erred by instructing the jury as follows:
It is not required that the deadly weapon be held on the victim at
all times. The initial showing of deadly force and the victim’s
awareness of the defendant’s continued constructive possession
of the weapon may be sufficient to satisfy the “armed with a
deadly weapon” element.
Appellant’s Appendix at 63. This instruction was adapted from language used by
our Supreme Court in Potter v. State, 684 N.E.2d 1127, 1137 (Ind. 1997)
(providing that “[w]hen Rape is elevated to a Class A felony due to the use of a
deadly weapon, it is not necessary for the State to show that the weapon was
held on the victim at all times”).
[8] As this court has explained,
[t]he purpose of jury instructions is to inform the jury of the law
applicable to the facts without misleading the jury and to enable
it to comprehend the case clearly and arrive at a just, fair, and
correct verdict. In reviewing a trial court’s decision to give a
tendered jury instruction, we consider (1) whether the instruction
correctly states the law, (2) is supported by the evidence in the
record, and (3) is not covered in substance by other instructions.
The trial court has discretion in instructing the jury, and we will
reverse only when the instructions amount to an abuse of
discretion. To constitute an abuse of discretion, the instructions
given must be erroneous, and the instructions taken as a whole
must misstate the law or otherwise mislead the jury. We will
consider jury instructions as a whole and in reference to each
other, not in isolation.
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Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010) (quoting Murray v.
State, 798 N.E.2d 895, 899-900 (Ind. Ct. App. 2003)).
[9] Wilderness makes no argument that the instruction misstated the law, nor could
he. See Potter, 684 N.E.2d at 1137. Instead, he argues that the instruction
inappropriately invited the jury to rely on an appellate standard for determining
the sufficiency of the evidence. In support, Wilderness cites Ludy v. State, 784
N.E.2d 459, 460 (Ind. 2003), in which our Supreme Court disapproved of an
instruction providing that a conviction may be based solely on the
uncorroborated testimony of an alleged victim, partly because “it presents a
concept used in appellate review that is irrelevant to a jury’s function as fact-
finder.” Id. at 461. The Court reasoned that appellate courts reviewing the
sufficiency of the evidence have observed that a conviction may rest upon the
uncorroborated testimony of the victim, but that a jury is not charged with
reviewing whether a conviction is supported. Instead, the jury’s task is to
determine whether the State proved the charged crime beyond a reasonable
doubt, and in doing so, the jury must consider all evidence presented. The
Court reasoned that “[t]o expressly direct a jury that it may find guilt based on
the uncorroborated testimony of a single person is to invite it to violate its
obligation to consider all the evidence.” Id. at 462.
[10] The instruction at issue here is very different from the one at issue in Ludy.
Nothing about the instruction invited the jury to violate its obligation to
consider all the evidence. Instead of presenting an appellate standard of review,
the instruction helped to fully define the phrase “armed with a deadly weapon”
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in the context of the rape charge. In other words, the instruction was not
improper because it was “necessary for a full, correct statement of the law[.]”
See Patterson v. State, 11 N.E.3d 1036, 1042 (Ind. Ct. App. 2014). See also
Munford, 923 N.E.2d at 15 (noting that “[t]here is no blanket prohibition against
the use of appellate decision language in jury instructions”).
[11] Again relying on Ludy, Wilderness also argues that the instruction
inappropriately highlighted a single piece of evidence—in this case, the gun.
Ludy is a poor analogue. In that case, the Court found that it was inappropriate
to inform the jury that it may find guilt based solely on the victim’s
uncorroborated testimony because doing so invited the jury to focus on the
victim’s testimony to the exclusion of other evidence. In this case, however, it
was entirely appropriate to make reference to the gun in instructing the jury on
the “armed with a deadly weapon” element. Indeed, we are at a loss as to how
the jury could have been properly instructed without making mention of such
evidence.
[12] Finally, Wilderness argues that the instruction was improper because it
presumes that he possessed a gun, a fact the State was required to prove. This
argument overlooks the other instructions given to the jury. Both the
preliminary and final instructions informed the jury that the State was required
to prove the elements of the offenses, including the “using or threatening the
use of deadly force or . . . while armed with a deadly weapon” element of the
rape charge, beyond a reasonable doubt. Amended Appellant’s Appendix at 45, 57.
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II. Sentencing
[13] Wilderness also argues that his sentence is inappropriate. Article 7, section 4 of
the Indiana Constitution grants our Supreme Court the power to review and
revise criminal sentences. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014),
cert. denied, 135 S.Ct. 978 (2015). Pursuant to Ind. Appellate Rule 7, the
Supreme Court authorized this court to perform the same task. Cardwell v. State,
895 N.E.2d 1219, 1224 (Ind. 2008). Per App. R. 7(B), we may revise a sentence
“if after due consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R.
7). “Sentencing review under Appellate Rule 7(B) is very deferential to the trial
court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Wilderness bears the
burden on appeal of persuading us that his sentence is inappropriate. See id.[14] The determination of whether we regard a sentence as inappropriate “turns on
our sense of the culpability of the defendant, the severity of the crime, the
damage done to others, and myriad other factors that come to light in a given
case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell, 895
N.E.2d at 1224). Moreover, “[t]he principal role of such review is to attempt to
leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is
not our goal in this endeavor to achieve the perceived “correct” sentence in
each case. Knapp, 9 N.E.3d at 1292. Accordingly, “the question under
Appellate Rule 7(B) is not whether another sentence is more appropriate; rather,
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the question is whether the sentence imposed is inappropriate.” King v. State,
894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original).
[15] In order to assess the appropriateness of a sentence, we first look to the
statutory range established for the classification of the relevant offense.
Wilderness was convicted of a Level 1 felony, a Level 5 felony, and a Level 6
felony. The relevant statutes provide a sentencing range of twenty to forty years
for a Level 1 felony, one to six years for a Level 5 felony, and six months to two
and a half years for a Level 6 felony. Ind. Code §§ 35-50-2-4, -6, -7. The trial
court imposed consecutive terms of forty years for rape, six years for criminal
confinement, and two and half years for strangulation. Thus, Wilderness’s
aggregate sentence of forty-eight and a half years is the maximum sentence
permitted by law.
Ordinarily, the maximum possible sentence is most appropriate for the worst
offenders. Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002). This is not,
however, an invitation to determine whether a worse offender could be
imagined. Wells v. State, 904 N.E.2d 265, 274 (Ind. Ct. App. 2009), trans.
denied. “Despite the nature of any particular offense and offender, it will always
be possible to identify or hypothesize a significantly more despicable scenario.”
Buchanan, 767 N.E.2d at 973. Accordingly, “[w]e concentrate less on
comparing the facts of this case to others, whether real or hypothetical, and
more on focusing on the nature, extent, and depravity of the offense for which
the defendant is being sentenced, and what it reveals about the defendant’s
character.” Wells, 904 N.E.2d at 274.
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[16] Wilderness’s offenses are reprehensible in nature. He abducted a terrified L.S.
at gunpoint, threatened her life, and forced her to drive to an isolated location.
Once there, he choked her and punched her in the face before dragging her out
of the car and raping her vaginally and anally. When he finished, he left L.S. to
vomit on the ground as he walked away. As a result of the attack, L.S. had a
black eye, petechial hemorrhaging in her eyes, redness to her throat, and a
bleeding abrasion on her cervix. Additionally, about a week after the attack,
L.S. discovered that Wilderness had infected her with chlamydia. L.S.
continues to suffer psychologically as a result of Wilderness’s brutal attack. She
testified that she has to see a therapist on a long-term basis to manage her
anxiety and that she has not slept well since the rape, even with the aid of
sleeping pills prescribed by her doctor.
[17] With respect to Wilderness’s character, we note that he has an extensive record
of criminal conduct. As a juvenile, Wilderness was twice adjudicated
delinquent, once for theft and once for burglary, both of which would have been
felonies if committed by an adult. As an adult, Wilderness has been convicted
of twelve misdemeanors, including two counts of battery and three counts of
resisting law enforcement. He also has one felony conviction for possession of
marijuana. Wilderness has been provided multiple opportunities for
rehabilitation, all of which have apparently failed. His suspended sentences on
his misdemeanor convictions have been revoked twice and modified once. His
sentence on his felony conviction has been modified twice. Moreover, the
brutality of the offenses in this case speaks volumes about Wilderness’s
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character. In light of the heinousness of Wilderness’s offenses and his unsavory
character, we cannot conclude that the maximum sentence was inappropriate.
[18] Judgment affirmed.
[19] Robb, J. and Barnes, J., concur.
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