Ellyson v. State, 27A04-9204-CR-120

• Decision Date: 03 December 1992
• Docket Number: No. 27A04-9204-CR-120,27A04-9204-CR-120
• Citation: 603 N.E.2d 1369
• Parties: Matthew ELLYSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1369

603 N.E.2d 1369

Matthew ELLYSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 27A04-9204-CR-120.

Court of Appeals of Indiana,

Fourth District.

Dec. 3, 1992.

Brent Westerfeld, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Julie Zandstra Frazee, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

CONOVER, Judge.

Defendant-Appellant Matthew Ellyson (husband) appeals his conviction by the Grant Superior Court II of Burglary, as a Class B felony, ¹ asserting a failure of proof thereof, and denial of effective assistance of counsel as to his convictions for Rape, as a Class B felony, ² and Battery, as a Class D felony. ³

Reversed.

Restated, the issues raised by this appeal are:

(1) whether the evidence was sufficient to prove husband broke and entered the "property of another", as required by the burglary statute, when he owned a possessory interest in the premises in common with his spouse, and

(2) whether he was denied effective assistance of counsel at trial where counsel did not

(a) procure the attendance at trial of relevancy and authentication witnesses for two rape kits the state had prepared in anticipation of trial, but did not offer as evidence, which husband sought to offer as exhibits in his defense, and

(b) lay the predicate required for the admission of wife's prior inconsistent statements which would have put wife's credibility at issue.

Husband and Angela Jones Ellyson (wife) were married when he was 19 and she 16 years of age. After their marriage, they lived together in a three bedroom house in Marion. Their marriage soon began to deteriorate, and husband voluntarily moved out of the house. However, he later claimed he had the right to have sexual intercourse with her because she was his wife. On several occasions, husband attempted to re-enter the premises for that purpose.

Wife filed suit for dissolution of marriage. Later, a restraining order was issued. Its contents, however, were never offered as evidence. The facts establishing the offenses were related by wife at trial. On the evening the restraining order was issued, husband kicked in the door. (R. 119). The next day, wife discovered some of husband's belonging had been returned to the house. The day after that, husband attempted to enter the premises while wife, her new boyfriend, and another were in the house. They chased husband, but he escaped.

Later that same evening after wife's friends had left, husband entered the premises, struck and choked wife, removed her panties then inserted a curling iron into her vagina. Afterward, he raped her for five or six minutes even though he only had a partial erection and did not ejaculate. When he finished, wife kicked husband in the gonads, ran for the bathroom, and locked the door. Husband pounded on the bathroom door demanding entry but wife refused. He then left the premises.

Wife immediately burned the panties in a wood stove, bathed, douched, and washed the curling iron "to get rid of everything, every ounce that he was there ... I didn't want anybody to know anything that happened." (R. 143).

Later at her new boyfriend's insistence, she reported the incident to the police. (R. 150). The state's investigator prepared two rape kits in anticipation of trial. One contained known hair samples from both husband and wife for comparison with suspect pubic hairs gathered at the scene. The other contained pubic hair combings, blood samples, and vaginal smears taken from wife at a hospital on the evening in question. The suspect pubic hair sample taken from the scene was negative as to husband. (R. 269). The vaginal smears, etc., taken from wife were negative as to sexual intercourse that evening. (R. 267). The state did not offer these kits as evidence at trial.

Defendant's attempts to introduce the rape kits while the state's investigator was testifying were unsuccessful. Also, his attempts to introduce wife's prior inconsistent statements to impeach her credibility failed.

Wife was the state's prosecuting witness. Her testimony contains the only direct evidence regarding the events upon which husband's conviction was based.

From his conviction on all three counts, husband appeals.

When presented with a claim of insufficient evidence, we neither reweigh the evidence nor judge the credibility of the witnesses. Rather, we consider only the evidence and reasonable inferences most favorable to the State. If there is substantial evidence of probative value from which a reasonable trier of fact could find the existence of each element of the offense charged beyond a reasonable doubt, we will affirm the conviction. Bartruff v. State (1990), Ind., 553 N.E.2d 485, 486; Meredith v. State (1987), Ind., 503 N.E.2d 880. We view the evidence in the light most favorable to the State. Loyd v. State (1980), 272 Ind. 404, 398 N.E.2d 1260, 1264, reh. denied, cert. denied, (1980), 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

IC 35-43-2-1, the burglary statute, provides:

A person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a Class C felony. However, the offense is a Class B felony ... if the building ... is a dwelling....

Husband first argues the evidence is insufficient to support his conviction for burglary as a Class B felony because the state failed to prove he had either no possessory interest or a possessory interest inferior to his wife's in the house where this incident occurred. Thus, the evidence is insufficient to sustain the judgment below as to the burglary charge, he claims. To the contrary, the state argues when husband moved out, wife alone controlled access to the home, i.e. she had sole possession thereof. Because the witnesses at trial referred to the dwelling as wife's home, postulates the state, there is substantial evidence wife had the sole possessory interest therein. Thus, husband's unauthorized entry constituted burglary, it contends. State v. Dively (1982), Ind., 431 N.E.2d 540, 543; Musick v. State (1972), 258 Ind. 295, 280 N.E.2d 602, 603. We agree with the state.

IC 35-41-1-23 reads, in part:

. . . . .

(b) Property is that "of another person" if the other person has a possessory or proprietary interest in it, even if an accused person also has an interest in that property.

Thus, the burglary statute's requirement the dwelling be that "of another person" is satisfied if the evidence demonstrates the entry was unauthorized, even though the accused may have had a right to possession of the house co-equal with his wife at the time of the breaking. Dively, at 542.

Husband finally asserts his trial counsel was incompetent because he failed to:

(a) produce the witnesses necessary to authenticate and show the relevancy of two rape kits prepared by the investigating officer in anticipation of trial, but not offered by the state as evidence during the trial, and

(b) lay a foundation for wife's prior inconsistent statements which tended to impeach her.

The state responds to the failure to call witnesses claim by saying:

Although defense counsel's failure to successfully introduce this evidence may have been deficient performance, [husband] has not shown how he was prejudiced by the deficiency.

Brief of Appellee at 10. It then argues wife testified she bathed, douched, and changed her clothing after the incident. Thus, the laboratory results showing no semen, etc., are not surprising, and admission of the lab tests would not have tended to change the result of the trial. However, it makes no argument as to trial counsel's failure to call the relevance and authentication witnesses necessary to the admission and analysis of the two rape kits prepared by the State. (R. 269). As to the failure to lay the predicate for impeaching statements, the State only claims the record on appeal does not reveal what the impeaching statements might have been. Thus, husband has not met his burden of proving error, citing Battles v. State (1985), Ind., 486 N.E.2d 535, 539.

When a court on appeal considers the issue of ineffective assistance of either trial or appellate counsel, its scrutiny of the attorney's performance is highly deferential. As was said in Best v. State (1991), Ind., 566 N.E.2d 1027:

The standard for counsel's performance is that of reasonably effective assistance. To prevail on his claim, [appellant] must show that his attorney's performance fell below an objective standard of reasonableness under prevailing norms. He also must prove that his attorney's failure to function was so prejudicial as to deprive him of a fair trial. A fair trial is denied when the conviction or sentence results from a breakdown that renders the result unreliable. Siglar v. State (1989), Ind., 541 N.E.2d 944.

Best, 566 N.E.2d at 1031. Justice O'Connor has succinctly stated the criteria by which to determine when an accused has been accorded a fair trial. In the seminal case of Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, she said:

The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause:

"In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense."

Thus, a fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.

The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to accord defendants the "ample opportunity to meet the case of the prosecution" to which they are entitled. (Citing cases) ...

The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's...