Moore v. State

• Citation: 882 N.E.2d 788
• Decision Date: 20 March 2008
• Docket Number: No. 89A05-0701-CR-12.,89A05-0701-CR-12.
• Parties: Garganus T. MOORE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

882 N.E.2d 788

Garganus T. MOORE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 89A05-0701-CR-12.

Court of Appeals of Indiana.

March 20, 2008.

E. Thomas Kemp, Richmond, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Ellen H. Meilander, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

KIRSCH, Judge.

Garganus T. Moore appeals from his convictions and sentence for rape¹ as a Class B felony, criminal deviate conduct² as a Class B felony, criminal confinement³ as a Class D felony, and battery⁴ as a Class C felony. He raises the following three restated issues:

I. Whether Moore's convictions for rape and criminal deviate conduct were precluded by double jeopardy because of a previous guilty plea to battery;

II. Whether the trial court provided a sufficient sentencing statement; and

III. Whether Moore's aggregate sentence of thirty-six years was inappropriate in light of the nature of the offense and the character of the offender.

The State raises the following issue on cross-appeal:

IV. Whether the trial court erred when it refused, on double jeopardy grounds, to submit the rape and criminal deviate conduct charges to the jury as Class A felonies and the criminal confinement charge as a Class C felony.

We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

On March 22, 2006, at approximately 1:30 a.m., Moore arrived at the apartment of his then-girlfriend, C.S. The two had been dating since December 2005, and C.S. was about four months pregnant with Moore's child. Moore knew that C.S. was pregnant and that the baby was his child. C.S. had two other children who were two years old and thirteen months old and were sleeping when Moore arrived at the apartment.

When Moore came inside, he began arguing with C.S. and accused her of hugging his friend. He ordered C.S. to go into her bedroom and to lie on the bed, and she complied. Moore began hitting C.S. on the head and legs. He kicked, head-butted, and bit her legs and choked her with his hands, warning her not to scream. Moore continued to beat C.S. for several hours, striking her over one hundred times in total. He told C.S. that she could not leave and that he would kill her if she tried to leave. During this time, Moore attempted to take off her pants and C.S. resisted, but Moore was able to pull off her pants and have sexual intercourse with C.S. against her will.

At approximately 7:00 a.m., C.S.'s two-year-old child woke up and wanted juice. Moore allowed C.S. to leave the bedroom to get the child some juice. C.S. was scared, in a lot of pain, and could hardly walk. Moore left the apartment for a few hours, but before he left, he threatened to beat C.S. even worse if she tried to leave or if she called the police. When Moore returned, he was still angry with C.S. and continued to degrade her. At some point, Moore altered the doorknob and lock on the door of C.S.'s bedroom so that it could not be opened from the inside when it was closed. C.S. realized this when she could not open the door. She also noticed that Moore had removed the telephone from her bedroom. She wrote "Help call 911 Emergency" on an envelope containing a utility bill that listed her name and address and dropped it out of her apartment window, which was ten feet above the ground. A maintenance worker at the apartment complex found the envelope on March 23 or 24, and he gave it to the management but did not otherwise summon help.

Moore forced C.S. to stay in the apartment through March 24. During this time, some of Moore's friends came over, and he made C.S. pull down her pants and show the friends her bruises, which was humiliating to C.S. On March 23, Moore forced C.S. to perform oral sex on him and threatened to beat her if she did not comply. Also, on that date, Moore had several knives in view of C.S. and talked about killing her and her children. He held the knife to C.S.'s neck and said that he would kill her and her older child and let the younger child play in their blood. Tr. at 247.

On March 24, 2006, Moore forced C.S. and the children to go to a neighbor's apartment to avoid C.S.'s family as they had been calling to inquire about her well-being. C.S. had a visible black eye, and Moore told the neighbor, that he had hit C.S. because she was with another guy. Id. at 427-28. After the neighbor's boyfriend was able to get Moore to leave the apartment, C.S. showed the neighbor the other bruises on her body and told her about the beating.

Eventually the police were called, and an officer came to speak to C.S. C.S. had a large bruise on her right eye, bruises on her neck and right upper arm, and large bruises covering almost her entire right and left legs. C.S. was limping and in a lot of pain when she spoke to the officer. She told the officer about being beaten and confined in her apartment by Moore and that he had threatened to kill her and the children. When she was alone with her mother, C.S. broke down and told her mother that Moore had raped her and forced her to perform oral sex. On March 28, C.S. spoke with a detective and told him what she had confided to her mother.

The State charged Moore with rape as a Class A felony, criminal deviate conduct as a Class A felony, criminal confinement as a Class B felony, and battery as a Class C felony. All four charges were enhanced because they resulted in serious bodily injury, specifically "extreme pain and bruising." Appellant's App. at 12. A jury trial was held on these charges, which began on November 14, 2006. After a jury had been selected, but before opening statements, Moore pled guilty to Class C felony battery and admitted that he had punched C.S. resulting in extreme pain and bruising to her. Tr. at 145-46. The trial then proceeded on the remaining three counts. At the conclusion of the trial, the State objected to the trial court's decision to only submit the rape and criminal deviate conduct charges to the jury as Class B felonies and the criminal confinement charge as a Class D felony because Moore had already been convicted of the Class C felony battery charge, which was enhanced because it resulted in serious bodily injury, the same injury used to enhance those offenses. The trial court denied this objection and only submitted the lesser offenses to the jury. The jury found Moore guilty of Class B felony rape, Class B felony criminal deviate conduct, and Class D felony criminal confinement.

At the sentencing hearing, the trial court gave an oral sentencing statement, explaining its reasons for rejecting Moore's proposed mitigating circumstances. It also explained the aggravating circumstances it found and what weight it assigned to these factors. After finding that the aggravating circumstances far outweighed the mitigating circumstances, the trial court sentenced Moore to fifteen years for Class B felony rape, fifteen years for Class B felony criminal deviate conduct, two years for Class D felony criminal confinement, and six years for Class C felony battery. The two fifteen-year sentences and the six-year sentence were ordered to be served consecutively to each other, with the two-year sentence to be served concurrently for an aggregate sentence of thirty-six years. Moore now appeals.

DISCUSSION AND DECISION

I. Double Jeopardy

Moore argues that his prosecution and convictions for rape and criminal deviate conduct violated Indiana's prohibition against double jeopardy because of his previous guilty plea to battery. Specifically, he contends that battery is a lesser-included offense of rape and criminal deviate conduct, and he could not be prosecuted and convicted for these greater offenses after he pled guilty to the lesser-included offense of battery. Because he pled guilty to battery before he was tried for the offenses of rape and criminal deviate conduct, he believes that his subsequent prosecution for these offenses was barred, and his convictions should therefore be vacated.

If a defendant wishes to dispose of one of the charges pending against him by pleading guilty, he may do so, but he cannot use his guilty plea to deprive the State of the opportunity to fully prosecute, or to determine which charges will, or will not, be pursued against him. State v. Boze, 482 N.E.2d 276, 279 (Ind.Ct.App. 1985), trans. denied (1986). "Where the defendant has an active hand in arranging the disposition of the causes so he might benefit from the results, he waives any double jeopardy claims." Boze v. State, 514 N.E.2d 275, 277 (Ind.1987).

The United States Supreme Court has held that the Double Jeopardy Clause does not prohibit the State from continuing its prosecution of a defendant on greater charges when he had previously pled guilty to lesser-included charges. Ohio v. Johnson, 467 U.S. 493, 502, 104 S.Ct. 2536, 2542, 81 L.Ed.2d 425 (1984). In that case, the defendant was charged with four charges as a result of a killing and theft of property, pled guilty to the two lesser charges, and successfully moved to have the two greater offenses dismissed on double jeopardy grounds. Id. at 495-96, 104 S.Ct. 2536. The Supreme Court reasoned that the continued prosecution of the defendant did not amount to the imposition of cumulative punishments that is the concern of the Double Jeopardy Clause because, before the defendant could ever be punished for the greater offenses, he would first have to be found guilty. Id. at 499, 104 S.Ct. 2536. The trial court's dismissal of the more serious charges did more than prevent the imposition of cumulative punishments; it ended the proceedings that would have led to a verdict of guilt or innocence on the charges. Id. at 499-500, 104 S.Ct. 2536. This action by the trial court denied the State "its right to one full and fair opportunity to convict those who have violated its laws." Id. at 502, 104 S.Ct. 2536 (citing Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 832, 54 L.Ed.2d 717 (1978...