Parks v. State

• Decision Date: 07 September 2000
• Docket Number: No. 45A03-9908-CR-331.,45A03-9908-CR-331.
• Citation: 734 N.E.2d 694
• Parties: Ronald PARKS, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

734 N.E.2d 694

Ronald PARKS, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 45A03-9908-CR-331.

Court of Appeals of Indiana.

September 7, 2000.

Transfer Denied November 8, 2000.

Herbert I. Shaps, Mayer & Shaps, Merrillville, Indiana, Attorney for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Timothy W. Beam, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

SULLIVAN, Judge

Appellant, Ronald Parks (Parks), appeals his convictions for Rape,¹ a Class B felony, and Criminal Confinement,² a Class D felony.

We affirm.

Parks presents four issues for our review, which we restate as follows:

(1) Whether the trial court abused its discretion in denying Parks' motion for a mistrial;

(2) Whether the jury verdict of guilty of rape is inconsistent with the verdict of not guilty of criminal deviate conduct;

(3) Whether the evidence was insufficient to sustain Parks' convictions of rape and confinement due to "incredibly dubious" testimony; and

(4) Whether Parks' convictions of rape and confinement improperly resulted in convictions of both an offense and an included offense in violation of I.C. XX-XX-X-X.

The facts reveal that on August 13, 1997, T.A. went to a bar across the street from her home to celebrate her 30th birthday while her husband watched their three children. After having a few drinks, she decided to go to another bar where she saw a high school friend and former boyfriend, Michael Pace (Pace). T.A. had a few more drinks and then Pace asked her if she wanted to go with him to pick up a friend. She agreed and accompanied Pace to the Hammond American Inn. On the way to the American Inn, T.A and Pace smoked marijuana.

Pace went into the American Inn while T.A. waited in the car. A short time later, Pace came back out and told T.A. he was going to be there a little longer and asked her to come inside. She accompanied Pace to a room on the second floor where there were two men and three females. After a few minutes, T.A. went to the restroom, but when she came back, Pace was no longer in the hotel room. After some time had passed and Pace failed to return, Parks offered to take T.A. home. She asked Parks what he expected for the ride home, but Parks stated that he did not want anything.

T.A. got into the car with Parks and directed him toward her home. Parks, however, did not exit onto Michigan Avenue as T.A. instructed, but instead took the Gary exit. At that point, T.A. told Parks to let her out and she would walk home. Parks did not comply and grabbed her by the wrist. T.A. tried, but was unable to open the car door because the doors were locked. She began to cry and again asked Parks to take her home or let her out of the car. Parks continued to drive while holding onto T.A.'s arm. On more than one occasion, Parks told T.A. that she better stay close to him because the people out there would not like her.

Parks stopped the car near the side and rear of a one-story brick building, later determined to be the Gotham Hotel in Gary.³ Once stopped, Parks reached across T.A., leaned her seat back, and got on top of her. While T.A. begged him "please don't do this" and told him that she was unable to have sexual intercourse due to a medical condition,⁴ Parks pulled down her underwear, pinned her arms down, and put his penis inside her vagina. Record at 207. Then, Parks told T.A. to put her underwear back on and they both went up to the building. Parks knocked on one of the doors and a female answered.

Upon entering the room, Parks asked the female who answered the door to leave. After she left, Parks pushed T.A. onto the bed and forced T.A.'s head upon his penis. Parks then pushed T.A. back onto the bed and placed his penis in her vagina. Each time she tried to get up, Parks pushed her back onto the bed. Eventually, Parks told T.A. to go into the bathroom and wash up, which she did. Upon returning from the bathroom, Parks informed her that a female tried to cash one of T.A.'s checks, but was unsuccessful. Parks told her that he would take her home after she went to Wiseway to cash a check for him. Parks drove T.A. and another female to Wiseway.

As soon as the car pulled into the Wiseway parking lot, T.A. jumped out of the car, ran into the Wiseway and asked a man at the service desk if she could use the phone. T.A. telephoned the police and her husband. Linda Burns (Burns), while working in her capacity as a security guard at Wiseway,⁵ noticed that T.A. was shaking and crying. Eventually, T.A. told Burns that she had been raped. Burns also called the police. The police and an ambulance arrived, but T.A. refused to go to the hospital at that time. However, at some point, T.A. went to the hospital for an examination. At the hospital, personnel took swabs from T.A.'s mouth and vagina, collected samples of hair from her head as well as pubic hair, and charted bruises on her arms, wrists, legs, and chest. Indiana State Police Lab results determined that seminal fluid found in T.A.'s vagina and on her underwear belonged to Parks.

On August 15, 1997, Detective Mary Ann Banks (Banks), a sex crimes investigator for the Gary Police Department, took a statement from T.A. regarding what had occurred. At that time, T.A. identified Parks in a photograph.

At some point, Detective Banks also questioned Parks. After waiving his Miranda rights, Parks stated that he met T.A. at the American Inn in Hammond and that they were later at the Gotham Hotel in Gary, but that he only laid on the bed next to her and there was no sexual contact. Later, Parks stipulated to engaging in sexual intercourse with T.A. at the Gotham Hotel.

A jury found Parks guilty of rape and confinement, but acquitted him of criminal deviate conduct.

I. Denial of Motion for Mistrial

Parks contends that the trial court abused its discretion in denying Parks' motion for a mistrial. During a lunch recess at trial, Detective Banks⁶ was seated in the soft drink area where seating was available having a conversation with her friend, Mr. Palmer (Palmer). Subsequently, one of the jurors came and sat down nearby. When the juror overheard Palmer discussing his retirement, he engaged Palmer in conversation about enjoying retirement. Three other jurors were also nearby. Detective Banks did not engage in conversation with any of the jurors. When a juror engaged Palmer in conversation, Detective Banks commented to Palmer that retirement must be nice. Detective Banks stated that she did not leave the area where jurors were present because she was there first. At some point, Detective Banks did leave the soft drink area after being asked to do so by someone from the court's staff.

Subsequently, Parks requested a mistrial. Both the prosecutor and Parks' attorney questioned Detective Banks. Then, the trial judge questioned the four jurors. The four jurors were not placed under oath and were not admonished. When questioned by the trial judge, the juror who spoke with Palmer stated that he did not talk to Detective Banks, the case was not mentioned, and that the contact with her would not influence him in any way. Similarly, the other three jurors stated that they were near Detective Banks in the soft drink area, but did not have a conversation with her, did not hear the case being discussed, and that this would not influence their decision in this case. Both the prosecutor and Parks' attorney were given an opportunity to question the jurors, but both declined. Thereafter, the trial court denied Parks' motion for a mistrial.

The trial court is deemed to be in the best position to assess the impact of a particular event upon the jury. Agnew v. State (1997) Ind.App., 677 N.E.2d 582, 583, trans. denied. Thus, the decision of whether to grant or deny a motion for mistrial is committed to the sound discretion of the trial court and will be reversed only upon an abuse of that discretion. Price v. State (1995) Ind.App., 656 N.E.2d 860, 863, trans. denied. A mistrial is an extreme remedy and should only be granted when no other remedy can cure the error. Id.

Parks cites May v. State (1999) Ind., 716 N.E.2d 419,Kelley v. State (1990) Ind., 555 N.E.2d 140, and Woods v. State (1954) 233 Ind. 320, 119 N.E.2d 558, in support of his contention that the trial court abused its discretion in denying his motion for a mistrial. However, each of these cases is distinguishable from the instant case.

In May, supra, 716 N.E.2d at 419, 420, one of the State's witnesses, a police officer, initiated contact with a juror⁷ when he saw him during a lunch break at a local restaurant. The officer admitted that he initiated the contact with the juror, but stated that they had merely exchanged greetings. Id. at 422. However, the juror revealed that he had invited the officer to his house the following weekend to watch a pay-per-view boxing match on television. Id. In reversing the trial court's denial of defendant's request to replace the juror and remanding for a new trial, our Supreme Court stated that the extra-judicial juror communication was more than just the mere exchange of pleasantries and that it affected the juror's ability to assess the officer's credibility as a witness. Id. at 422-23.

In Kelley, supra, 555 N.E.2d at 141, the State's sole witness, a security guard, had lunch with half of the jury. The security guard had been overheard saying to three jurors, "`I seen him do it,'" and one of the jurors had been heard to say, "`I could see him do that.'" Id. However, it was unknown whether these comments referred to the defendant on trial. Id. The jurors and witness admitted having lunch together, but denied discussing the trial. Id. Despite the three jurors' assertions that their impartiality was intact, our Supreme Court reversed the trial court's denial of defendant's motion for mistrial due to the highly probable enhancement of the credibility of the State's witness from the interaction. Id. at 142.

In Woods, supra, ...