Foster v. State

• Decision Date: 17 September 2003
• Docket Number: No. 02A03-0206-CR-183.,02A03-0206-CR-183.
• Citation: 795 N.E.2d 1078
• Parties: Gregory FOSTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

795 N.E.2d 1078

Gregory FOSTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 02A03-0206-CR-183.

Court of Appeals of Indiana.

September 17, 2003.

Eugene C. Hollander, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General, of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Gregory Foster (Foster), appeals his convictions for rape, a Class A felony, Ind.Code § 35-42-4-1; criminal deviate conduct, a Class A felony, I.C. § 35-42-4-2; and criminal confinement, a Class B felony, I.C. § 35-42-3-3.

We affirm.

ISSUES

Foster raises three issues on appeal, which we restate as follows:

1. Whether the trial court committed reversible error when it instructed the jury that the sole and uncorroborated testimony of the alleged victim, if believed beyond a reasonable doubt, was sufficient to support a conviction;

2. Whether the trial court properly denied Foster's motions for discharge pursuant to Indiana Criminal Rule 4; and

3. Whether his 150-year sentence was proper.¹

FACTS AND PROCEDURAL HISTORY

On November 18, 2000, at approximately 3:00 a.m., S.J. was walking from her apartment to visit a friend. S.J. lived in the Eden Green Apartments in Fort Wayne, Indiana. As S.J. walked down the street, Foster drove by in a white Toyota Camry, and called out the name "Diane," thinking that S.J. was her aunt.² S.J. informed Foster that she was not Diane and told him her first name. Foster offered S.J. a ride because it was late at night and she was walking alone. S.J. accepted the ride and entered the car. Once S.J. entered the car, Foster drove in the opposite direction of S.J.'s intended destination.

As a result, S.J. informed Foster that he was going in the wrong direction. Foster told S.J. that he had to take care of some business first and encouraged her to calm down. At this point, S.J. became worried, but she was not scared. However, S.J. asked Foster several times to stop in order to let her out of the car. Foster ignored her requests and continued to drive to the Canterbury Green Apartments, on the other side of town. Foster parked in a carport and left the car for about five minutes. S.J. testified that she remained in the car for the following reasons: (1) it was late, (2) she did not know the area, (3) it was dark, and (4) mostly white people, who she did not think would help her, inhabited the Canterbury Green Apartments.

When Foster reentered the car, he placed a black handgun on the dashboard and drove to Shoaff Park located in Fort Wayne, Allen County, Indiana. After seeing the handgun, S.J. was scared, and she began to cry. Again, S.J. informed Foster that she wanted to go home. Foster told S.J. to shut up. Then, Foster parked the car in a dark area of Shoaff Park surrounded by trees. He ordered that S.J. perform oral sex on him. When Foster threatened to use the handgun, S.J. performed oral sex on him as he requested. Afterwards, Foster instructed S.J. to pull her pants off and sit back in her seat. When S.J. complied, Foster lay on top of her, and engaged in sexual intercourse with her. S.J. testified that she cried and asked Foster to stop, but that he just told her to shut up and stop crying. Foster ejaculated on S.J.'s thigh and ordered her out of the car. S.J. testified that she refused to exit the car because she thought Foster would kill her if she exited the car. When S.J. refused to exit the car, Foster drove her back to her apartment. As Foster drove away, S.J. remembered the license plate number of the car Foster was driving.

As S.J. stood outside, she saw Fort Wayne Police Officer James King (Officer King) in a store parking lot. S.J. approached Officer King and told him that she had been raped. S.J. was hysterical and Officer King calmed her down before taking her statement. S.J. provided Officer King with a description of her attacker, and a description of the car he was driving with the license plate number. Officer King contacted the medics for S.J. S.J. was taken to the Sexual Assault Treatment Center and examined by Nurse Stephanie Good (Nurse Good). Nurse Good completed a rape kit for S.J. S.J. reported that her upper arms were tender. There were also fresh bruises on her lower extremities. In the meantime, Officer King ran the license plate number provided by S.J. and discovered that the car was registered to Shirley Foster, Foster's mother. S.J. later identified Foster from a photo array.

Indiana State Police DNA Analyst, Mary Reed (Reed), performed a DNA analysis on several of the samples from S.J.'s rape kit. The swab taken from S.J.'s left thigh was consistent with Foster's DNA. Reed testified that one African-American in fifty-eight billion would match the DNA found on S.J.'s left thigh and external genitalia. The vaginal and cervical swabs were consistent with S.J., Foster, and an unknown third contributor.³ The swab taken from S.J.'s right groin area was also consistent with both S.J. and Foster.

On November 21, 2000, Fort Wayne Detective Hilda Williams (Detective Williams) interviewed Foster. Detective Williams testified that, at first, Foster denied that he picked up a girl during the early hours of November 18, 2000. However, Detective Williams testified that Foster later claimed that he picked up a girl, on November 18, 2000, and drove her one block up the street, but that no sexual contact occurred.

On February 16, 2001, the State of Indiana filed a three-count information, charging Foster with Count I, rape, a Class A felony; Count II, criminal deviate conduct, a Class A felony; and Count III, criminal confinement, a Class B felony. On March 5, 2001, a warrant was issued for Foster's arrest. Foster was arrested pursuant to the warrant on March 7, 2001. On March 9, 2001, the trial court held Foster's initial hearing. On April 25, 2001, the State filed an additional information alleging that Foster was a habitual offender, I.C. § 35-50-2-8.

On April 30, 2001, Foster requested a speedy trial pursuant to Crim. R. 4(B). On the same date, the trial court granted Foster's Motion for Speedy Trial and set the trial for June 19-20, 2001. On June 8, 2001, the State requested a continuance due to the unavailability of a necessary and material witness. On June 12, 2001, a hearing was held. At this hearing, the trial court found that the State's witness would be available within ninety (90) days, and granted the State's Motion for Continuance pursuant to Crim. R. 4(D). At this point, Foster's counsel objected to the continuance. As a result, Foster fired his attorney and withdrew the objection to the continuance because Foster wanted to hire a new attorney. The trial court scheduled a hearing for trial setting and attorney status for June 26, 2001.

At the June 26, 2001 hearing, Foster had not yet hired a new attorney. Therefore, Foster asked for the matter to be "postponed" so he could try to hire an attorney. The trial court scheduled a trial setting and attorney status hearing for July 11, 2001. On July 11, 2001, Foster appeared with a new attorney. The trial date was set for November 6-7, 2001. Foster's new attorney informed the trial court that Foster might renew his request for speedy trial after a review of discovery material, but was not doing so at that time. Foster made no objection to the November trial date. On November 6, 2001, the trial court continued the trial due to a congested court calendar. The trial court set the trial for February 12-13, 2002. Foster objected to the new trial date on the basis that his speedy trial rights were violated. The trial court informed Foster that he waived his speedy trial rights when he fired his attorney on June 12, 2001, and withdrew his objection to the State's motion for continuance. On November 26, 2001, due to an irretrievable breakdown in the attorney-client relationship, Foster's attorney withdrew from the case. At a status hearing on November 30, 2001, new counsel appeared for Foster. The trial date of February 12-13, 2002, was also confirmed.

On December 5, 2001, Foster filed a Motion for Bond Reduction, Release under Crim. R. 4(A), or Discharge under Crim. R. 4(B), and a Motion for Speedy Trial. On December 10, 2001, the trial court denied the Motion for Bond Reduction, Release or Discharge. However, the trial court granted Foster's Motion for Speedy Trial and confirmed the February 12-13, 2002 trial date. Nevertheless, on February 12, 2002, the trial court continued the trial due to a congested court calendar and set the trial for April 23-24, 2002. Foster objected and renewed his motion for discharge. The trial court denied Foster's renewed motion for discharge.

A jury trial was held on April 23-24, 2002. On April 24, 2002, during a hearing held outside of the presence of the jury regarding final instructions, Foster objected to the State's tendered final instruction providing that a conviction can rest on the uncorroborated testimony of the victim, if believed beyond a reasonable doubt. The trial court gave the instruction over Foster's objection. On the same date, the jury found Foster guilty of rape, criminal deviate conduct, and criminal confinement. The jury also determined that Foster was a habitual offender.

On May 20, 2002, a sentencing hearing was held. The trial court sentenced Foster to the Indiana Department of Correction for a period of fifty (50) years on Count I, enhanced by a term of thirty (30) years due to his habitual offender status; fifty (50) years on Count II; and twenty (20) years on Count III, for an aggregate sentence of 150 years; each sentence to run consecutively to the others.

Foster now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Final Instruction 12

Foster contends that the trial court erred by giving Final Instruction 12. Specifically, Foster argues that Final Instruction 12 states...