Lyles v. State

• Decision Date: 27 August 1991
• Docket Number: No. 82A04-9006-CR-260,82A04-9006-CR-260
• Citation: 576 N.E.2d 1344
• Parties: Ronald Ray LYLES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1344

576 N.E.2d 1344

Ronald Ray LYLES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 82A04-9006-CR-260.

Court of Appeals of Indiana Fourth District.

Aug. 27, 1991.

Rehearing Denied Oct. 10, 1991.

Cole G. Banks, Evansville, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Ian A.T. McLean, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

CONOVER, Judge.

Petitioner-Appellant Ronald Ray Lyles appeals his convictions for Burglary, a class A felony, IND.CODE 35-43-2-1; Confinement, while armed with a deadly weapon, a class B felony, IC 35-42-3-3; Battery, with a deadly weapon, a class C felony, IC 35-42-2-1; and Intimidation, committed by use of a deadly weapon, a class C felony, IC 35-45-2-1.

We affirm in part and reverse in part.

Lyles presents the following rephrased and consolidated issues:

1. whether the evidence was sufficient to support Lyles' conviction on all charges;

2. whether the trial court erred in denying Lyles' request for a new trial based on newly discovered evidence;

3. whether the trial court improperly limited Lyles' cross examination of the victim;

4. whether double jeopardy prevents Lyles' convictions for both burglary and battery; and

5. whether double jeopardy prevents Lyles' convictions for both confinement and intimidation.

The facts most favorable to the verdict reveal that Lyles, the publisher of an Evansville magazine, met with Angela Gray on a couple of occasions for the alleged purpose of providing her a job as a model. Subsequent to a meeting in his home, Gray filed charges against Lyles in which she alleged he pushed her and would not let her leave after she refused his sexual advances.

On February 28, 1989, Lyles entered Gray's residence, without her knowledge or consent, through a door which was closed but unlocked. He proceeded to the bathroom where Gray was curling her hair. He confronted her about filing the prior complaint and he ripped the curling iron from her head, taking some hair with it. He struck her in the stomach, and continued to do so even after she reminded him that she was pregnant. When she attempted to fight back, he grabbed her arm to keep her from further resisting or from leaving the room. He then pulled out a box cutter and cut her on the face and chest over forty times. He also yelled obscenities and told her he would cut her throat for filing the earlier report. He finally left after about twenty minutes.

Lyles' attacks resulted in convictions for burglary, battery, intimidation, and confinement. He now appeals.

Additional facts will be provided below as necessary.

Lyles contends the evidence was insufficient to support his conviction on any of the charges. He specifically argues the jury should have believed his testimony concerning an alibi over Gray's testimony concerning the attack.

When presented with a claim of insufficient evidence, we neither reweigh the evidence nor judge the credibility of the witnesses. Rather, 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. If there is substantial evidence of probative value to support the jury's verdict, we will affirm the conviction. Meredith v. State (1987), Ind., 503 N.E.2d 880, 882.

Even the uncorroborated testimony of a victim is sufficient to sustain a conviction. DeBruhl v. State (1989), Ind., 544 N.E.2d 542, 546. Here, Gray testified in detail regarding the particulars of the attack in her home. In so doing, she unequivocally named Lyles as her attacker. Her injuries were corroborated at trial by introduction of photographs and the testimony of those who observed her after the attack. In addition, other witnesses testified a car matching the description of Lyles' car was parked outside her home at the time of the attack. There is sufficient evidence to support the convictions. Lyles merely invites us to invade the province of the jury by reweighing the evidence. We decline the invitation.

With respect to the burglary conviction, Lyles contends an element of the offense was not established. He claims he did not break and enter because he had implied permission to enter the house. He also claims his entry was ratified by Gray because she did not ask him to leave as soon as she saw him.

A defendant's belief that he has permission to enter must be reasonable in order for the defendant to avail himself of the defense of consent. Hicks v. State (1987), Ind., 510 N.E.2d 676, 680. Here, Lyles testified he had knocked the two previous times he had been at Gray's house. When the prosecutor asked him if he knew whether he had the right to walk into Gray's house unannounced, Lyles responded, "no it is proper to knock on anyone's door." (R. 619). Further, Lyles was aware Gray had recently filed charges against him, and therefore would not logically consent to his free access to her home. Under these circumstances, a jury could certainly find Lyles did not have a reasonable belief Gray had consented to his entry.

Lyles also contends Gray somehow ratified his entry into her house by not immediately protesting his presence. In other words, Lyles contends the fact a startled victim delays protest to a breaking and entering somehow negates the prior illegal entry. We find this "theory", which is unsupported by any citation to authority, to be unpersuasive. Rather than a belated invitation into her home, it is more likely that Gray's hesitancy was attributable to her desire not to further anger Lyles.

Lyles contends the trial court erred in not granting him a new trial due to newly-discovered evidence. After trial, Lyles located David Kokomoor, an employee at the Holiday Inn where Lyles was last seen before the attack, whose testimony, in Lyles opinion, would bolster his alibi.

We note that "[m]otions for a new trial predicated upon newly-discovered evidence are viewed with disfavor." Scott v. State (1987), Ind., 510 N.E.2d 170, 174, cert. denied. The decision to grant a new trial is within the discretion of the trial court and will not be disturbed absent an abuse of such discretion. Id.

In Francis v. State (1989), Ind., 544 N.E.2d 1385, 1386, our supreme court stated that where an appellant's motion to correct errors includes a claim of entitlement to a new trial upon discovery of evidence subsequent to trial, an appellant must show 1) the evidence has been discovered since trial; 2) it is material and relevant; 3) it is not cumulative; 4) it is not merely impeaching; 5) it is not privileged or incompetent; 6) due diligence was used to discover it in time for trial; 7) the evidence is worthy of credit; 8) it can be produced on a retrial; and 9) it will probably produce a different result.

At trial, Gray testified that she was attacked at about 6:00 p.m. Lyles testified he was at a cocktail party at the Holiday Inn until roughly 5:55 p.m., at which point he went to the restroom and then made a ten minute phone call to his brother on a pay phone in the hotel lobby. Several hotel employees testified they saw Lyles at the party somewhere between 5:30 and 5:45 p.m., but none of them knew when he left the hotel. The employees were able to easily identify him because he regularly attended these parties.

Lyles testified he spoke on the phone with his brother until 6:10. Lyles' brother testified the phone call occurred somewhere between 6:00 and 7:00 p.m., and that he did not know where Lyles was calling from. Lyles further testified that after he finished speaking with his brother 1) he drove to a store located approximately three-tenths of a mile from Gray's house; 2) purchased ice cream at 6:24 p.m.; 3) went to his estranged wife's house between 6:25 and 6:30; 4) left about five minutes later; and 5) arrived at his home at around 6:40, where he stayed the rest of the night. ¹

Lyles now claims Kokomoor can provide new evidence to substantiate his alibi. He points to Kokomoor's affidavit, in which he stated that he saw Lyles on the phone a little before 6:00 p.m., but did not know when Lyles left the hotel.

Lyles' claim fails because he did not affirmatively establish at least three of the elements required by Francis. First, Lyles did not show that he used due diligence to obtain Kokomoor's information prior to trial. As our supreme court has held, motions for a second trial based on evidence alleged to be newly-discovered are subject to a "hostile inference of want of diligence which must be indulged in every such application in the absence of a clear showing to the contrary." Fuller v. State (1937), 213 Ind. 144, 10 N.E.2d 594, 596. A finding of due diligence does not rest upon abstract conclusions about, or assertions of, its exercise but upon a particularized showing that all the methods of discovery reasonably available to counsel were used and could not uncover the newly-found information. See, Stephens v. State (1987), Ind., 506 N.E.2d 12, 16 (a second trial cannot be held on evidence capable of being discovered with due diligence); Scott, supra (appellant must demonstrate what due diligence he used to discover the evidence before trial); Hestand v. State (1986), Ind., 491 N.E.2d 976, 979 (appellant must show the exercise of diligence in trying to discover evidence prior to trial); Bradburn v. State (1981), Ind., 425 N.E.2d 144, 146 (holding appellant must show what steps, if any, he took to obtain such evidence prior to trial).

Lyles did not find out about Kokomoor until shortly after trial when Kokomoor went to the Holiday Inn manager and told him what he had seen. Lyles could have found Kokomoor, who had been a desk clerk and auditor for at least two years, if he had conducted a more complete investigation on his own. Before trial, Lyles' counsel interviewed several of the hotel managers and employees. Lyles' counsel could have easily asked the managers or employees if they knew of any...