Morrison v. State, 49A02-0403-CR-216.

Docket NºNo. 49A02-0403-CR-216.
Citation824 N.E.2d 734
Case DateMarch 31, 2005
CourtCourt of Appeals of Indiana

824 N.E.2d 734

Michael MORRISON, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff

No. 49A02-0403-CR-216.

Court of Appeals of Indiana.

March 31, 2005.

Transfer Denied June 1, 2005.


824 N.E.2d 737
Jan B. Berg, Indianapolis, IN, Attorney for Appellant

Steve Carter, Attorney General of Indiana, Grant H. Carlton, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAILEY, Judge.

Case Summary

Appellant-Defendant Michael Morrison ("Morrison") appeals his convictions for two counts of attempted criminal deviate conduct as Class B felonies1 and two counts of sexual battery as Class D felonies.2 Morrison also challenges his executed fifteen-year sentence in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), rehg. denied. We affirm in part and remand for vacation of two convictions.

Issues

Morrison raises four issues, which we consolidate and restate as:

I. Whether the trial court abused its discretion by excluding evidence of the victim's prior sexual history under Indiana Evidence Rule 412;
II. Whether the evidence is sufficient to support his attempted criminal deviate conduct and sexual battery convictions; and
III. Whether he was denied his Sixth Amendment right to have a jury determine, beyond a reasonable doubt, all facts legally essential to his sentence when the trial court found a certain aggravating circumstance and sentenced him to an executed term of fifteen years.

In addressing Morrison's second issue, we first examine, sua sponte, whether his convictions for two counts of attempted criminal deviate conduct as Class B felonies, as well as his simultaneous convictions for two counts of sexual battery as Class D felonies, violate the Indiana Constitution's prohibition against double jeopardy.

Facts and Procedural History

On July 1, 2003, Rick White ("White") went swimming at Thompson Park Community Pool ("Pool"). White, who was twenty-seven-years old at the time, is "moderately mentally handicapped." Tr. at 233. While at the Pool, White met, for the first time, and engaged in conversations with Morrison, Joni Davee ("Davee"), and Elizabeth Zielska ("Zielska").

At some point that day, Morrison asked White to guess how long that Morrison could stay under water. Morrison then swam underwater from the deep end of

824 N.E.2d 738
the pool to the shallow end, where White was standing. Subsequently, Morrison went underwater and began performing oral sex upon White. During this sexual encounter, White "kept looking around like he really wasn't sure what was going on. He kept like looking down to what [Morrison] was doing and looking around like he wasn't sure what to do or what was going on." Id. at 62. On two separate occasions, Morrison came up for air, immersed himself back into the water, and continued performing oral sex upon White. Once, White "tried to put his hands under water and [Morrison] moved his hands out of the way. [Morrison] stuck his hand out of the water and moved [White's.]" Id. at 47. When Morrison finally came out of the water, he kissed White "using his tongue." Id. Davee noticed that, during this entire incident, White "looked like he didn't know what was going on." Id.

Eventually, Morrison and White left the pool and went into the bathhouse. On his way to the bathhouse, White told Davee and Zielska that he had heard the ice cream truck and asked them for the time. In the bathhouse, while White was in the process of using a urinal, Morrison "touched [White's] pee pee with his hand." Id. at 118. White then proceeded to a restroom stall, locked the door behind him, and began using the restroom. Morrison climbed underneath the locked door to the stall and touched White's buttocks. As White attempted to pull up his swim trunks, Morrison "put his penis ... inside [White's] butt." Id. at 124. White pushed Morrison away. White opened the door to the restroom stall and attempted to leave the bathhouse, but Morrison "pulled [him] back into the shower." Id. at 127. There, Morrison removed White's shirt and swim trunks, pushed White onto the ground, and got on top of White. Morrison next began "humping" White, which White described as Morrison's penis being connected to his penis. Id. at 128. White "tried to get up and put [his] clothes back on ... and [Morrison] falled (sic) down and pushed [White] on top of him and tried to hump [White.]" Id. White pushed Morrison away, put his swimming trunks back on, and left the bathhouse as he was putting his shirt on. When Davee saw White come out of the bathhouse, he was putting his shirt back on.

As a result of his conduct at the Pool, the State charged Morrison with the following counts: (I) attempted criminal deviate conduct as a Class B felony for attempting to force White to submit to anal intercourse; (II) attempted criminal deviate conduct as a Class B felony for attempting to engage in anal intercourse with White when White was unable to consent to such conduct; (III) sexual battery as a Class D felony for compelling White to submit to unwanted touching; and (IV) sexual battery as a Class D felony for touching White when White was unable to give consent to such touching. At a subsequent jury trial, the State propounded questions to White regarding how it was that he learned about sexual relations between men and women, as well as what he had learned concerning from where babies come. In response, White explained that men and women make babies and that babies come from the mommy's stomach. He also explained that, while his parents did not personally teach him about sex, he learned about it by watching television.

Later, during Morrison's cross-examination of witness Lana Zlovic ("Zlovic"), a juror asked a question about whether White had ever discussed sexual matters with Zlovic. Outside the presence of the jury, Zlovic responded that White had once told her that a guy at work brought him into the bathroom and "did stuff to him," including touching his penis. Tr. at 191. The trial court sustained the State's

824 N.E.2d 739
objection to the admission of this testimony pursuant to Indiana Evidence Rule 412. In so doing, however, the trial court permitted the parties to "craft a question that deals with [White's] knowledge of other matters that doesn't deal with prior acts." Id. at 199

At the conclusion of the trial, the jury found Morrison guilty of two counts of attempted criminal deviate conduct and two counts of sexual battery, and the trial court entered judgments of conviction on the jury's verdicts. At sentencing, the trial court merged Count II into Count I and Count IV into Count III and sentenced Morrison to the Indiana Department of Correction for a period of fifteen years for the attempted criminal deviate conduct conviction and three years, with three years suspended, for the sexual battery conviction, to be served consecutively. Morrison now appeals his convictions and fifteen-year executed sentence.

Discussion and Decision

I. Admission of Evidence: Rule 412

On appeal, Morrison first argues that the trial court abused its discretion by excluding certain testimony regarding White's prior sexual history under Indiana Evidence Rule 412. In particular, Morrison maintains that the trial court erred when it excluded Zlovic's testimony regarding a prior incident between White and a male coworker, wherein the coworker touched White's penis. The decision to admit or exclude evidence is within the trial court's sound discretion and is afforded great deference on appeal. Sallee v. State, 785 N.E.2d 645, 650 (Ind.Ct.App. 2003), trans. denied, cert. denied, 540 U.S. 990, 124 S.Ct. 480, 157 L.Ed.2d 385 (2003); Williams v. State, 779 N.E.2d 610, 612 (Ind.Ct.App.2002). We will generally not reverse a trial court's exclusion of evidence unless the exclusion is a manifest abuse of discretion resulting in a denial of a fair trial. Williams, 779 N.E.2d at 612. An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Sallee, 785 N.E.2d at 650. This court will also find an abuse of discretion when the trial court controls the scope of cross-examination to the extent that a restriction substantially affects the defendant's rights. Williams, 779 N.E.2d at 612.

The admission of evidence relating to a victim's past sexual conduct is governed by Indiana Evidence Rule 412. Rule 412 provides that, with very few exceptions, in a prosecution for a sex crime, evidence of the past sexual conduct of a victim or witness may not be admitted into evidence. Evid. R. 412. Certain evidence of a victim's past sexual conduct may be admitted, provided that it falls within one of the following exceptions: (1) evidence of the victim's or of a witness's past sexual conduct with the defendant; (2) evidence that shows that some person other than the defendant committed the act upon which the prosecution is founded; (3) evidence that the victim's pregnancy at the time of trial was not caused by the defendant; or (4) evidence of conviction for a crime to impeach under Rule 609.3 Id. In addition to these enumerated exceptions, a common-law exception has survived the 1994 adoption of the Indiana Rules of Evidence.

824 N.E.2d 740
See Sallee, 785 N.E.2d at 650. This exception provides that evidence of a prior accusation of rape is admissible if: (1) the victim has admitted that his or her prior accusation of rape is false; or (2) the victim's prior accusation is demonstrably false. Id. Prior accusations are demonstrably false where the victim has admitted the falsity of the charges or they have been disproved. Fugett v. State, 812 N.E.2d 846, 849 (Ind.Ct.App.2004); see also Perry v. State, 622 N.E.2d 975, 980 (Ind.Ct.App.1993)

In the present case, testimony that a coworker had touched White's penis does not fall into one of the enumerated exceptions of Rule 412. In addition, such testimony is not...

To continue reading

Request your trial
26 practice notes
  • Frequent Evidentiary Battles
    • United States
    • James Publishing Practical Law Books Trial Objections
    • May 5, 2022
    ...that his or her prior accusation of rape is false; or (2) the victim’s prior accusation is demonstrably false. Morrison v. State , 824 N.E.2d 734, 740 (Ind. Ct. App. 2005). Testimony regarding alleged victim’s prior sexual history , i.e., that victim’s co-worker had allegedly touched victim......
  • Oatts v. State, 49A02-0805-CR-447.
    • United States
    • Indiana Court of Appeals of Indiana
    • January 20, 2009
    ...of a prior sexual act provides guidance on whether the victim had the knowledge to imagine a molestation charge. In Morrison v. State, 824 N.E.2d 734 (Ind.Ct. App.2005), trans. denied, the defendant was convicted of two counts of attempted criminal deviate conduct as class B felonies and tw......
  • Buckner v. State, 49A02-0602-CR-150.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 5, 2006
    ...denied. Moreover, the uncorroborated testimony of a victim is generally sufficient to sustain a criminal conviction. Morrison v. State, 824 N.E.2d 734, 743 The only time that this court will invade the fact-finder's province to weigh evidence and judge witness credibility is in the "rare ca......
  • Gregory v. State, 15A01-0708-CR-348.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 5, 2008
    ...cannot be remedied by the "practical effect" of concurrent sentences or by merger after conviction has been entered. Morrison v. State, 824 N.E.2d 734, 741-42 (Ind.Ct.App. 2005), trans. denied. We therefore remand this cause to the trial court with an order to vacate Gregory's conviction fo......
  • Request a trial to view additional results
25 cases
  • Oatts v. State, 49A02-0805-CR-447.
    • United States
    • Indiana Court of Appeals of Indiana
    • January 20, 2009
    ...of a prior sexual act provides guidance on whether the victim had the knowledge to imagine a molestation charge. In Morrison v. State, 824 N.E.2d 734 (Ind.Ct. App.2005), trans. denied, the defendant was convicted of two counts of attempted criminal deviate conduct as class B felonies and tw......
  • Buckner v. State, 49A02-0602-CR-150.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 5, 2006
    ...denied. Moreover, the uncorroborated testimony of a victim is generally sufficient to sustain a criminal conviction. Morrison v. State, 824 N.E.2d 734, 743 The only time that this court will invade the fact-finder's province to weigh evidence and judge witness credibility is in the "rare ca......
  • Gregory v. State, 15A01-0708-CR-348.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 5, 2008
    ...cannot be remedied by the "practical effect" of concurrent sentences or by merger after conviction has been entered. Morrison v. State, 824 N.E.2d 734, 741-42 (Ind.Ct.App. 2005), trans. denied. We therefore remand this cause to the trial court with an order to vacate Gregory's conviction fo......
  • Kelley v. State, Court of Appeals Case No. 19A-CR-890
    • United States
    • Indiana Court of Appeals of Indiana
    • November 14, 2019
    ...court's act of merging, without vacating the conviction, is not sufficient to cure the double jeopardy violation. See Morrison v. State , 824 N.E.2d 734, 742 (Ind. Ct. App. 2005) (noting that a double jeopardy violation cannot be remedied by the "practical effect" of concurrent sentences or......
  • Request a trial to view additional results
1 books & journal articles
  • Frequent Evidentiary Battles
    • United States
    • James Publishing Practical Law Books Trial Objections
    • May 5, 2022
    ...that his or her prior accusation of rape is false; or (2) the victim’s prior accusation is demonstrably false. Morrison v. State , 824 N.E.2d 734, 740 (Ind. Ct. App. 2005). Testimony regarding alleged victim’s prior sexual history , i.e., that victim’s co-worker had allegedly touched victim......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT