Grafe v. State, 49A02-9701-PC-16
| Citation | 686 N.E.2d 890 |
| Decision Date | 21 October 1997 |
| Docket Number | No. 49A02-9701-PC-16,49A02-9701-PC-16 |
| Parties | David GRAFE, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent. |
| Court | Indiana Appellate Court |
David Grafe appeals from the partial denial of his petition for post-conviction relief from his convictions of Rape, 1 a class A felony, two counts of Criminal Deviate Conduct, 2 both class A felonies, two counts of Criminal Confinement, 3 both class B felonies, Attempted Murder, 4 a class A felony, and Battery, 5 a class C felony. Grafe presents the following restated issues for review: 6
1. Did the conviction of both attempted murder and the elevation of the confinement to a class B felony violate double jeopardy principles?
2. Did the elevation of the offenses committed against H.M. violate double jeopardy principles?
3. Was the evidence sufficient to support the judgment?
4. Did Grafe receive ineffective assistance of trial and appellate counsel?
We affirm.
The facts favorable to the judgment are that on the night of September 26, 1986, Grafe broke into the residence of 54-year-old Clara Hyers. 7 He entered Hyers's bedroom, where she was sleeping with her 11-year-old niece, H.M. Grafe struck Hyers on the head with a glass bowl and subsequently held her down when she attempted to get up. After incapacitating Hyers, Grafe knocked H.M. unconscious with a blow to the head, opening a cut that would later require seven stitches to close. Grafe then moved H.M. to her bedroom and removed her clothing. When H.M. regained consciousness, she was lying on her own bed with no clothes on and Grafe was in the room. Thereafter, while forcing H.M. to move from room to room in the residence, Grafe attempted to perform vaginal and anal intercourse on H.M., and also placed his penis in her mouth. Grafe eventually left and H.M. summoned police. Grafe was convicted as set out above and sentenced to 195 years in prison.
Grafe filed a petition for post-conviction relief (PCR) setting forth the issues detailed above. The post-conviction court granted the PCR petition in part, vacating the attempted murder conviction and remanding for a new trial upon its determination that the trial court erred in instructing the jury regarding the elements of that offense. The State does not appeal that determination.
Grafe contends that the trial court erred in elevating to a class B felony the confinement conviction relating to the attack upon Hyres. Grafe contends that the elevation violated double jeopardy principles, which do not permit the elevation of an offense as a result of conduct that formed the basis of a separate conviction. 8
We note first that Grafe did not present the double jeopardy issue on direct appeal. Normally, the failure to present an issue waives it for purposes of post-conviction relief. However, we address this issue because a double jeopardy violation constitutes fundamental error. Channell v. State, 658 N.E.2d 925 (Ind.Ct.App.1995), trans. denied.
Grafe contends that the elevation of the confinement offense violated the double jeopardy provisions of both the Indiana and United States Constitutions. Until recently, the analyses for claims arising under both constitutional provisions were the same. However, our supreme court recently recognized that the interpretation of the federal Double Jeopardy Clause has changed. See Games v. State, 684 N.E.2d 466 (Ind.1997). The current federal interpretation focuses upon the statutory elements of the offenses in question, not upon the facts that must be proven under the particular indictment at issue. United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). Grafe's argument fails under the new interpretation of the federal Double Jeopardy Clause because confinement and attempted murder each require proof of a fact that the other does not. Id.
Expressly left unanswered by our supreme court in Games were the questions of whether, and how, the interpretation of the Indiana Constitution's Double Jeopardy Clause was altered by the modification of the interpretation of its federal counterpart. Different panels of this court have reached conflicting conclusions on this question. See Valentin v. State, 685 N.E.2d 1100 (Ind.Ct.App.1997) (Friedlander, J., concurring in result) (); Sharp v. State, 684 N.E.2d 544 (Ind.Ct.App.1997) (). For the reasons expressed in this author's separate opinion in Valentin, we conclude that the interpretation of the Double Jeopardy Clause of the Indiana Constitution was not altered by Dixon. Therefore, we apply this analysis in considering Grafe's challenge under the Indiana Constitution.
In Bevill v. State, 472 N.E.2d 1247 (Ind.1985), our supreme court determined that double jeopardy principles prohibited a conviction of both attempted murder and class A felony burglary, to the extent that the burglary was elevated by the bodily injury suffered by the victim as a result of the act constituting an element of the attempted murder charge. The court explained that such was erroneous because:
the attempted murder charge, and the burglary charge to the extent that it includes the added element of resultant bodily injury, are based upon and seek punishment for the same stabbing and the same injurious consequences to the same person.
The charging information alleging attempted murder stated: 9
DAVID ERWIN GRAFE ... did attempt to commit the crime of MURDER, which is to knowingly kill another human being, to wit: CLARA HIRES, by engaging in conduct, to-wit: KNOWINGLY AND REPEATEDLY STRICKING (sic) CLARA HIRES ON AND ABOUT HER HEAD, by means of a deadly weapong (sic), to-wit: A GLASS BOWL, all of which is contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Indiana.
Record at 67. The charging information alleging confinement with regard to Hyres stated:
David Grafe ... did knowingly and intentionally confine Clara Hyres without her consent by forcing her to remain at her residence ... while armed with a deadly weapon, to-wit: a glass bowl, which resulted in serious bodily injury to Clara Hyres.
The serious bodily injury to which the confinement information alluded resulted from the blows to Hyres's head. Those blows constituted the substantial step element for the attempted murder charge. This conduct could not sustain both convictions. See Channell, 658 N.E.2d at 930 ().
However, the charging information also alleged that the confinement was committed while Grafe was armed with a deadly weapon, i.e., a glass bowl. This court has consistently held that it is not a violation of double jeopardy to elevate multiple offenses on the basis that they were committed while armed with a deadly weapon if the defendant was armed during the commission of each offense. See, e.g., Carrington v. State, 678 N.E.2d 1143 (Ind.Ct.App.1997), trans. denied; Barker v. State, 622 N.E.2d 1336 (Ind.Ct.App.1993), trans. denied. Hyers testified that Grafe was armed with the glass bowl when he committed the act that gave rise to the confinement conviction. Therefore, the elevation of the confinement conviction did not violate established double jeopardy principles because Grafe was armed with a deadly weapon when he committed the offense.
Grafe contends that, as with the offenses committed against Hyres, the convictions relating to the attack upon H.M. violated double jeopardy principles because the same element was used to justify enhancing multiple convictions.
Grafe's argument upon this issue is essentially the same as the argument offered in support of Issue 1. The relevant principles of law are the same. We reiterate, the Indiana Constitution's Double Jeopardy Clause forbids a single act from providing the basis for one conviction and at the same time being used to elevate another conviction. Bevill, 472 N.E.2d 1247; Valentin, 685 N.E.2d 1100.
With regard to his attack upon H.M., Grafe was convicted of rape and two counts of criminal deviate conduct, all class A felonies, confinement as a class B felony, and battery as a class C felony. The charging information for battery stated:
[Grafe] did knowingly touch [H.M.] in a rude, insolent or angry manner, to-wit: struck her on her head by means of a deadly weapon, to-wit: a glass bowl, which resulted in serious bodily injury to [H.M.], to-wit: unconsciousness.
Record at 185-86. The charging information for rape stated:
[Grafe] did knowingly or intentionally, while armed with a deadly weapon, to wit: a glass bowl, have sexual intercourse with [H.M.], a member of the opposite sex while [H.M.] was compelled by force or imminent threat of force to submit to such sexual intercourse which resulted in serious bodily injury, to-wit: unconsciousness[.]
Record at 181-82. The charging informations for sexual deviate conduct stated:
[Grafe] ... did knowingly and intentionally while armed with a deadly weapon, to wit: a glass bowl, cause [H.M.] to perform or submit to deviate sexual conduct, an act involving the sex organ of [Grafe] and anus of [H.M.] by use of force, or imminent threat of force, which resulted in serious bodily injury, to wit: unconsciousness to [H.M.]
[Grafe] ... did knowingly or intentionally while armed with a deadly weapon, to wit: a glass bowl,...
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