Flake v. State
| Decision Date | 14 May 2002 |
| Docket Number | No. 89A01-0111-CR-428.,89A01-0111-CR-428. |
| Citation | 767 N.E.2d 1004 |
| Parties | Larry FLAKE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
E. Thomas Kemp, Richmond, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-Defendant Larry Flake ("Flake") was charged with Sexual Misconduct with a Minor as a Class B felony,1 Sexual Misconduct with a Minor as a Class C felony,2 and Rape as a Class B felony.3 A jury returned guilty verdicts on both counts of Sexual Misconduct with a Minor, but could not reach a verdict on the charge of Rape. The trial court declared a mistrial as to the charge of Rape. The jury subsequently found Flake to be a habitual offender. The trial court entered judgment on one count of Sexual Misconduct with a Minor as a Class B felony and adjudicated Flake a habitual offender. Flake was sentenced to twenty-five years imprisonment. We affirm.
Flake raises three issues on appeal, which we restate as follows:
I. Whether the trial court erred when it instructed the jury as to its function and power under the Indiana Constitution during the habitual offender phase of the trial;
II. Whether the trial court erred when it denied Flake's motion to continue the trial; and,
III. Whether the trial court erred when it permitted the State to rehabilitate its witness.
The facts most favorable to the verdict are as follows. On November 1, 1999, fifteen-year-old A.B. went outside her apartment at Greenwood Apartments in Richmond, Indiana, to see some friends. A.B. did not see her friends outside, but instead saw Flake. When A.B. began to walk to another apartment building Flake followed her, then grabbed her and forced her into his car.
Once inside the car, Flake commenced sexual contact and intercourse with A.B. After intercourse, Flake unlocked the car door and A.B. returned to her apartment. Upon returning home, A.B. told her mother what happened. A.B.'s mother told her not to shower and called the police. A.B. went to the hospital for treatment. Tests confirmed that semen recovered from A.B. originated from Flake. A.B. subsequently identified Flake from a photo array prepared by the Richmond police. The Richmond police arrested Flake.
On August 15, 2001, Flake filed a motion to continue his trial set for August 28, 2001, because one of his witnesses, Molly Washington ("Washington"), would be recovering from surgery. The trial court denied Flake's motion, reasoning in part as follows:
(Tr. 10-11.)
Flake appeals the trial court's judgment. Additional facts are supplied as needed.
Flake contends that the trial court failed to properly instruct the jury during the habitual sentencing phase of the trial. Specifically, Flake argues that the trial court's instructions inhibited the jury from exercising its constitutional right to determine both the law and the facts. We disagree.
Instructing the jury lies within the sole discretion of the trial court. Edgecomb v. State, 673 N.E.2d 1185, 1196 (Ind.1996). When reviewing the propriety of the trial court's decision to refuse a tendered instruction, this Court must consider the following: 1) whether the instruction is supported by the evidence in the record; 2) whether the instruction correctly states the law; and 3) whether other instructions adequately cover the substance of the denied instruction. Hanson v. State, 704 N.E.2d 152, 156 (Ind.Ct.App. 1999). Jury instructions are to be considered as a whole and in reference to each other; error in a particular instruction will not result in reversal unless the entire jury charge misleads the jury as to the law in the case. Edgecomb, 673 N.E.2d at 1196. Before a defendant is entitled to a reversal, he must affirmatively show that the instructional error prejudiced his substantial rights. Hollowell v. State, 707 N.E.2d 1014, 1023 (Ind.Ct.App.1999).
Article I, § 19, of the Indiana Constitution reads as follows:
In all criminal cases whatever, the jury shall have the right to determine the law and the facts.
Our supreme court applied this fundamental principle within the realm of habitual offender instructions in both Seay v. State, 698 N.E.2d 732 (Ind.1998) and Parker v. State, 698 N.E.2d 737 (Ind.1998).
[E]ven where the jury finds the facts of the prerequisite prior felony conviction to be uncontroverted, the jury still has the unquestioned right to refuse to find the defendant to be a habitual offender of law.
Seay, 698 N.E.2d at 734. However, an instruction which minimizes the jury's power of discretion in making a determination on habitual offender status does not necessarily amount to reversible error, if accompanied by another instruction informing the jury that it is the judge of the law and the facts. Parker, 698 N.E.2d at 742.
The trial court gave the following habitual offender instruction:
To have the defendant adjudged a habitual offender, the State must have proved each of the following elements:
That the defendant:
1. Was convicted of the crime of child molesting, a class B felony for which he was sentenced on or about September 9, 1980.
2. Was convicted of the crime of sexual battery, a class D felony, for which he was sentenced on or about March 22, 1989, and that this crime of sexual battery was committed after sentencing for the class B felony on September 9, 1980.
3. Committed the crime of which he was convicted in this cause after March 22, 1989.
(App. 324.) (Emphasis added.) Flake argued that the above italicized language created a presumption in violation of the case law contained in Seay and Parker. We agree.
In Seay, our supreme court held that the trial court erred when it instructed the jury that it was the judge only of the facts, and that it was restricted to determining the facts only and not the law. Seay, 698 N.E.2d at 737. Nevertheless, our supreme court summarily adopted this Court's determination that the giving of the instruction did not amount to reversible error. Id.; See Seay v. State, 673 N.E.2d 475, 480 (Ind.Ct.App.1996) () In Parker, our supreme court vacated a habitual offender determination holding that the trial court erred when it instructed the jury that if it found that the State had proved the predicate felonies, then it "should" find defendant to be a habitual offender. Parker, 698 N.E.2d at 737. The habitual offender instruction presently before us is similarly misleading.
Here, however, the errant habitual offender instruction was accompanied by the following instruction:
Under the Constitution of the State of Indiana the jury is given the right to determine both the law and the facts. The instructions of the Court are your best source in determining the law.
(App. 322.) This instruction clearly expressed the dictates of Article I, § 19, of the Indiana Constitution. Accordingly, the entire habitual offender jury charge did not prevent the jury from exercising its constitutional discretion and no reversible error took place.
Flake further contends that the trial court prejudiced his defense when it denied one of his motions to continue, effectively preventing defense witness Washington from testifying. We disagree.
The standard of review for a trial court's ruling on a continuance not required by statute is abuse of discretion.4 Carter v. State, 686 N.E.2d 1254, 1261 (Ind.1997). An abuse of discretion occurs when the ruling is against the logic and effect of facts and circumstances before the court or where the record demonstrates prejudice from denial of the continuance. Anderson v. State, 695 N.E.2d 156, 157 (Ind.Ct.App.1998). We will not disturb the trial court's decision absent a clear demonstration that the trial court abused its discretion. Arhelger v. State, 714 N.E.2d 659, 665 (Ind.Ct.App.1999).
Flake's reliance on Vaughn v. State, 590 N.E.2d 134 (Ind.1992) is misplaced. In Vaughn, our supreme court reversed a defendant's convictions for burglary, theft, and forgery because the trial court denied a motion to continue which...
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