821 N.E.2d 447 (Ind.App. 2005), 40A05-0404-CR-204, Goldsberry v. State

Docket Nº:40A05-0404-CR-204.
Citation:821 N.E.2d 447
Party Name:John GOLDSBERRY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Case Date:January 28, 2005
Court:Court of Appeals of Indiana
 
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821 N.E.2d 447 (Ind.App. 2005)

John GOLDSBERRY, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

No. 40A05-0404-CR-204.

Court of Appeals of Indiana

January 28, 2005

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Sarah L. Nagy, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MAY, Judge.

John Goldsberry appeals his convictions of and sentences for criminal recklessness, a Class D felony, 1 and battery, a Class A misdemeanor. 2 He raises several issues on appeal, which we consolidate and restate as:

1. Whether the trial court erred when it admitted evidence of prior physical altercations between Goldsberry and the victim and of phone calls Goldsberry made to the victim in the months after the crimes in question;

2. Whether Goldsberry's convictions violate his right under the Indiana Constitution to be free from double jeopardy;

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3. Whether Goldsberry's sentences violate his Sixth Amendment right to trial by jury pursuant to Blakely v. Washington, 542 U.S. ----, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), reh'g denied --- U.S. ----, 125 S.Ct. 21, 159 L.Ed.2d 851 (2004); and

4. Whether the trial court erred when it prohibited Goldsberry from possessing or owning a firearm.

We affirm in part and reverse and remand in part.

FACTS AND PROCEDURAL HISTORY 3

Goldsberry met Kristi Wilkerson in the winter of 2001, and they began dating in February 2002. Shortly thereafter, they began living together at Wilkerson's house, maintaining the household together and sharing expenses. Because of physical altercations, they broke up six or seven times during 2002, but they always got back together when Goldsberry apologized and promised to change.

On January 31, 2003, the couple spent the day working around Wilkerson's house and then went out to dinner. Goldsberry had been drinking all day and had consumed twelve beers by the end of dinner. Wilkerson began drinking at dinner and had three or four beers. Because Goldsberry was drunk, Wilkerson drove them back to her house. On the way, Wilkerson stopped the truck and got out to take off her coat. She put her coat in the toolbox in the bed of her truck, and as she was shutting the toolbox lid, she smashed her thumb. Goldsberry began taunting Wilkerson about the pain she was experiencing in her thumb.

Soon thereafter, Goldsberry reached under the driver's seat, grabbed Wilkerson's .38 caliber revolver that was in a case, took it out of the case, and announced, "You're not going to shoot me, bitch." (Tr. at 173.) Wilkerson told him she had no intention of shooting him and asked him to put the gun away. Instead, Goldsberry kept it in his hand and said again, "I'm not letting you shoot me." (Id. at 174.) When they arrived at Wilkerson's house and exited the truck, Wilkerson asked Goldsberry to leave the gun in the truck. Goldsberry threw the case in the truck and said, "There's your damn gun." (Id. at 176.) Wilkerson thought Goldsberry had thrown the gun back into the truck.

After they entered the house, Goldsberry pushed Wilkerson and would not let her go through the doorway from the living room to the kitchen. He pushed her into a gas space heater and then, when she got up, he pushed her back onto the bed. 4 While pushing her, Goldsberry said, "You're not going any where [sic] bitch." (Id. at 184.) Then, he laid on top of Wilkerson so she could not get up from the bed, and he kept telling her she was not going to get away from him.

After five minutes, Goldsberry got up to get a beer. He told Wilkerson to stay on the bed. Wilkerson got up to go to the restroom and told Goldsberry where she was going. As she walked toward the restroom, Goldsberry approached her and began shoving her on the chest and shoulder until she fell down. When she got up, he pushed her into the gas stove, the counter, and a ceramic crock pot. He then pushed her into the bathroom and she fell into the bathtub, ripping down the shower

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curtain, bending the curtain rod, and hitting the ceramic soap dish. He again told her "you're not going any where [sic] bitch." (Id. at 196.) Wilkerson was in pain but was afraid to get up, so she stayed in the bathtub.

After five minutes, Goldsberry returned to help Wilkerson out of the bathtub. Wilkerson walked toward the bedroom to lie down. Before she got there, Goldsberry grabbed her by the hair and said "You're not going anywhere, bitch." (Id. at 199.) He pulled the .38 caliber handgun out from behind his back, put it to her head, and said "You think I'm going to kill you now." (Id. at 201.) Wilkerson begged him to stop. Instead, Goldsberry glared at her, shot the gun next to her right ear, put the hot barrel next to her head so she could feel the heat, and said "You think I won't kill you now." (Id.) Goldsberry then pushed her onto the bed and stayed on top of her for a number of minutes.

Eventually, Goldsberry got up and again told Wilkerson to stay on the bed. He went back to the kitchen to drink more beer. Then, as he was urinating on the kitchen floor, he asked Wilkerson if she wanted "the privilege of holding it." (Id. at 205.) He went back to the living room, sat close to her, tapped the gun on his knee, and again told her she was not going anywhere. Wilkerson was unable to call the police because Goldsberry was watching her and, when she tried to use the phone, he broke it. Goldsberry packed a bag for himself and then ordered Wilkerson to drive him to his truck, which was half a mile away at a cabin on Wilkerson's property. On the way out of Wilkerson's house to her truck, Goldsberry threw the gun into her lawn.

Wilkerson drove Goldsberry to the cabin, where he entered a second truck and drove away. Wilkerson drove back to her house, retrieved the gun from the lawn, went into the house, and cried herself to sleep. When she woke, she called a friend to take her to the hospital. She also called the police, who met her at the emergency room. Police photographed large bruises and swelling on Wilkerson's right inner thigh, right knee, forearms, back and shoulder.

The State charged Goldsberry with confinement, a Class B felony; 5 criminal recklessness, a Class D felony; battery, a Class A misdemeanor; domestic battery, a Class A misdemeanor; 6 and criminal mischief, a Class B misdemeanor. 7 A jury found Goldsberry guilty of criminal recklessness and battery, and the trial court entered convictions on those two counts. The court sentenced Goldsberry to serve three years, with six months suspended to probation, for criminal recklessness. That sentence was to be served consecutive to one year, with one year suspended, for battery.

DISCUSSION

1. Admission of Evidence

Goldsberry argues the court erred in admitting evidence of physical altercations between him and Wilkerson occurring before the crimes charged and of phone calls he made to Wilkerson in the months following the crimes. The admission of evidence is within the sound discretion of the trial court, and the decision

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whether to admit evidence will not be reversed absent a showing of manifest abuse of discretion by the trial court resulting in the denial of a fair trial. Williams v. State, 782 N.E.2d 1039, 1045 (Ind.Ct.App.2003), trans. denied 792 N.E.2d 43 (Ind.2003). A decision is an abuse of discretion if it is clearly against the logic and effect of the facts and circumstances before the court. Id. In reviewing the decision, we consider the evidence in favor of the trial court's ruling and any unrefuted evidence in the defendant's favor. Id.

A. Prior Physical Altercations

During direct examination of Wilkerson, the following dialogue occurred:

Q How would you characterize this relationship that you had with [Goldsberry]? Was it all smooth sailing?

A No. Very turbulent.

Q Did the two of you argue occasionally?

A Yes.

Q How often would you estimate that you two argued?

A Several times, once every couple of weeks or three and get into it.

Q Okay, did the two of you ever have any physical altercations?

A Oh yes.

Q And let me back you up a little bit, in January of last year, how long would it have been that you two had been living together?

A Just shy of a year.

Q In that year, how many physical altercations would you guess,

[Defense]: Objection.

[Court]: [Defense], the basis for your objection?

[Defense]: Well, I think that, I don't think it has any relevance to whether or not these crimes, these alleged crimes occurred on the date in question. I think these prior acts are not relevant.

[Court]: [Prosecutor]?

[Prosecutor]: Well, I think the door is open and we will find that this was a self-defense. Although we're just going to be talking generally at this point about the relationship, I think it's admissible even under 404 B to rebut that and to discuss the relationship. Your Honor, also,

[Court]: The objection is overruled at this time. You may continue.

Q Approximately, actually, I kind of forgot my questions, Ms. Wilkerson, but I think it was.

[Court]: How many physical altercations had occurred in the eleven months or so they were together.

Q Yeah, how many times did the two of you get in a physical altercation?

A At least four big ones.

Q Were there others that weren't big ones?

A Ones that were not reported of a smaller magnitude.

Q And this is before January, right, of last year?

A Yes.

(Tr. at 163-65.)

Later in her testimony, the State asked Wilkerson whether January 31, 2003 was "the first time that you had been physically attacked by the Defendant." (Id. at 223.) Over the...

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