Ramon v. State, 17A03-0707-CR-333.

• Docket Nº: No. 17A03-0707-CR-333.
• Citation: 888 N.E.2d 244
• Case Date: June 10, 2008
• Court: Court of Appeals of Indiana

888 N.E.2d 244 Gilbert RAMON, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff. No. 17A03-0707-CR-333. Court of Appeals of Indiana. June 10, 2008.

[888 N.E.2d 247]

Adam C. Squiller, Taylor and Squiller, P.C., Auburn, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Zachary J. Stock, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge.

Following a jury trial, Gilbert Ramon was found guilty of Rape¹ as a class A felony, two counts of Criminal Deviate Conduct² as class A felonies, Criminal Confinement While Armed With a Deadly Weapon³ as a class B felony, Intimidation Using a Deadly Weapon⁴ as a class C felony, Pointing a Loaded Firearm⁵ as a class D felony, and Battery Causing Bodily Injury⁶ as a class A misdemeanor. Ramon raises the following restated issues:

1. Did the trial court properly allow the State to amend Counts 1, 2, and 3 prior to trial?

2. Do Ramon's convictions for rape and criminal deviate conduct subject him to double jeopardy?

3. Was Ramon's sentence appropriate?

We affirm.

Ramon met A.K. in October 2003. The two were roommates from July 2004 through December 2004. While they were roommates, Ramon and A.K. began an on-again, off-again sexual relationship that continued until 2006. On June 14, 2006, A.K. and Ramon went to the Oasis bar in St. Joe, Indiana to drink, play cards, and shoot pool. Around three a.m., as the Oasis was closing, Ramon and A.K. invited several individuals at the bar to Ramon's house for a bonfire. The only person who agreed to go was Brad Dangler. Dangler did not know the way to Ramon's house, so A.K. rode there with him.

When A.K. and Dangler arrived at Ramon's house, A.K. went inside and spoke with Ramon's brother Chris while Dangler and Ramon stood outside on the porch. After talking with Chris, A.K. went to find Dangler because she wanted to go home. Ramon told A.K. that Dangler had left. A.K. said that she was not feeling well and wanted to go home. Ramon stated that he wanted A.K. to stay for the night. When A.K. again indicated to Ramon that she wanted to leave, he grabbed her around the neck, took her to his bedroom, and pushed her on the bed. A.K. yelled to Chris for help and Ramon grabbed her face and dug his fingernails into her cheek. While pinning A.K. to the bed, Ramon removed A.K.'s pants. Ramon then proceeded to smack and punch A.K. in the face.

After hitting A.K. multiple times, Ramon ordered A.K. to perform oral sex. When A.K. refused, Ramon pointed at two guns that were sitting next to the bedroom door and told A.K. that he would shoot her if she did not comply. A.K. then performed

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fellatio. While A.K. was fellating Ramon, he placed his hand near A.K.'s anus. At that point, A.K. stopped fellating Ramon and the two struggled. Ramon forced A.K. onto her stomach and inserted his penis into her anus. As A.K. continued to struggle, Ramon removed his penis and thrust his hand into A.K.'s anus. This caused A.K. to feel a "shock of pain" through her whole body. Transcript at 174. Ramon quickly removed his hand from A.K.'s anus and began hitting A.K. in the face. One of Ramon's blows caused A.K. to lose consciousness.

When A.K. came to, her head hurt and she felt like she was going to throw up. Ramon escorted A.K. to the bathroom. After wiping, A.K. noticed that there was blood. A.K. told Ramon that she wanted to go home, and he told her that she could not. Ramon grabbed A.K. by the neck, took her back to his bedroom, and forced her to have vaginal sex. A.K. began crying because Ramon was hurting her, so Ramon stopped and forced A.K. to perform fellatio. Ramon became angry and forced A.K. to have vaginal sex again. While they were having vaginal sex, Ramon told A.K. that he would shoot her and bury her in the backyard. When A.K. told Ramon to just kill her, he began hitting her again. A.K. yelled to Chris for help, but there was no response.

After he stopped hitting A.K., Ramon rolled over and seemed to fall asleep. When A.K. tried to get up, Ramon grabbed her by the hair, pulled her back on the bed, and started hitting her again. A.K. then began dry-heaving, and Ramon took her to the bathroom. When A.K. was finished in the bathroom, Ramon led her back to his bedroom where A.K. tried to grab Ramon's cell phone. He took the cell phone away and pushed A.K. onto the bed. The two fought again, and A.K. told Ramon to just shoot her because she did not want to hurt anymore. Ramon pinned A.K. to the bed on her stomach, grabbed a handgun from his dresser drawer, and pointed the gun at the back of A.K.'s head. Ramon then pulled the gun away, sat down on the side of the bed, and started crying. After A.K. pleaded with Ramon to let her go, Ramon told her to get dressed and drove her back to the Oasis. While they were driving back to the Oasis, Ramon told A.K. that if she talked to the police about what happened he would kill her.

After Ramon dropped her off, A.K. entered the Oasis, and individuals inside the bar called the police. A.K. testified that at that time her head hurt and that she was experiencing pain in her genital area and anus. When paramedics arrived, A.K. told them she had been raped. A.K. was transported to a nearby hospital and was later treated by nurse Michelle Ditton. Ditton testified that the left side of A.K.'s face was swollen and bruised. She counted nineteen separate bruises on A.K.'s body and noted that A.K. was experiencing vaginal and anal pain. Ditton stated that on A.K.'s cervix there were scattered "petechiae, which are hemorrhagic areas, that were all bleeding bright red blood." Id. at 131. A.K. also "had an abrasion all around the cervical eye, which was also bleeding bright red blood." Id. Ditton noted that A.K. had suffered severe injuries to her anus. She testified that A.K.'s entire anal ring was swollen and opined that it was one of the worst swellings of the anal ring she had ever seen. Ditton also noted that there was a large bruise on A.K.'s anal verge and ring and that there were multiple tears to the anus that were bleeding.

On June 16, 2006, the State charged Ramon as follows: Count 1 — rape as a class B felony; Count 2 — criminal deviate conduct as a class B felony for the oral sex; Count 3 — criminal deviate conduct as a class B felony for the anal sex; Count

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4 — criminal confinement while armed with a deadly weapon as a class B felony; Count 5 — intimidation using a deadly weapon as a class C felony; Count 6 — pointing a loaded firearm as a class D felony; and Count 7 — battery causing bodily injury as a class A misdemeanor. On August 21, 2006, the State filed a motion for leave to amend Counts 1, 2, and 3 by enhancing each of those counts from a class B felony to a class A felony. Defense counsel raised no objection to the motion, and the trial court granted the motion that same day.

On April 13, 2007, the trial court, in light of our Supreme Court's ruling in Fajardo v. State, 859 N.E.2d 1201 (Ind.2007), reversed its August 21, 2006 ruling allowing the State to amend Counts 1, 2, and 3 because the amendments were not timely filed thirty days before the omnibus date. On May 9, 2007, the State filed a motion asking the trial court to reconsider its April 13, 2007 ruling. The State pointed out that on May 8, 2007, the Indiana General Assembly amended Indiana Code Ann. § 35-34-1-5 (West, PREMISE through 2007 1st Regular Sess.), the statute that governs amendments to a charging information, and that under the amended statute the State's proposed amendments to Counts 1, 2, and 3 were permissible because they would not prejudice Ramon's substantial rights. The trial court held a telephonic hearing on the State's motion on May 11, 2007. That same day, the trial court issued an order granting the State's motion to reconsider and allowed the State to amend Counts 1, 2, and 3 by enhancing each count from a class B felony to a class A felony.

Ramon's jury trial began on May 15, 2007. The jury ultimately found Ramon guilty of all charges. A sentencing hearing was conducted on June 18, 2007. The trial court found three aggravating factors. It noted that Ramon had a criminal history, namely a conviction for class D felony fraud, and that he had committed the instant crimes while on probation. The trial court also found that "the criminal confinement and intimidation counts were aggravated beyond what it would've taken to establish the elements in those situations." Id. at 517. The court found no mitigating circumstances. The trial court entered the following sentences: Count 1-40 years; Count 2-40 years; Count 3-40 years; Count 4-12 years; Count 5-6 years; Count 6-2 years; and Count 7-1 year. The court specified that Counts 2 and 3 would be served concurrently but would be served consecutive to Count 1. Counts 4 through 7 were to run concurrently with each other but consecutive to Counts 1 through 3. Ramon's aggregate sentence was ninety-two years. This appeal ensued.⁷

1.

Ramon argues that the trial court abused its discretion when it allowed the State to amend Counts 1, 2, and 3. Amendments to a charging information are governed by I.C. § 35-34-1-5. At the time Ramon committed the offenses at issue here, I.C. § 35-34-1-5(a) permitted an amendment to the charging information at any time "because of any immaterial defect," and listed nine examples. Similarly,

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subsection (c) permitted "at any time before, during or after the trial, ... an amendment to the indictment or information in respect to any defect, imperfection, or omission in form which does not prejudice the substantial rights of the defendant." I.C. § 35-34-1-5(c). Subsection (b), however, expressly limited the time for certain other amendments as follows:

(b) The indictment or information may be amended in matters of substance or form, and the names of material witnesses may be added, by the prosecuting attorney, upon giving...