Serrano-Lopez v. State
| Decision Date | 20 May 2011 |
| Docket Number | No. 49A05-1005-CR-294,49A05-1005-CR-294 |
| Parties | JOSE SERRANO-LOPEZ, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
TIMOTHY J. O'CONNOR
GREGORY F. ZOELLER
Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Charles A. Wiles, Judge
MEMORANDUM DECISION - NOT FOR PUBLICATIONFRIEDLANDER, Judge Jose Serrano-Lopez appeals from his conviction after a jury trial of one count of class A felony Rape, 1 one count of class A felony Criminal Deviate Conduct,2 one count of class B felony Criminal Confinement,3 one count of class C felony Battery,4 one count of class D felony Sexual Battery,5 two counts of class D felony Pointing a Firearm,6 one count of class A misdemeanor Battery,7 and one count of class A misdemeanor Carrying a Handgun Without a License.8 Serrano-Lopez raises the following issues for our review:
Klarica Robles and Serrano-Lopez had a romantic relationship in 2007, which ended that year, but the two communicated regularly thereafter. On New Year's Day 2009, Robles and Serrano-Lopez had sexual intercourse. In February of 2009, Robles told Serrano-Lopez that she thought she might be pregnant even though she had a tubal ligation in 1999.
It had been approximately two months since Robles had last seen Serrano-Lopez when he telephoned her at around 10:00 a.m. on July 25, 2009. He went to Robles's house, gave her some money, drove her to Meijer to shop for baby items (which she did even though she knew she was not pregnant), and then drove her back to her home. Robles's friend, Melanie Horton, and Horton's two children were staying with her that weekend to help Robles park cars at her house for the Brickyard 400. Later that same day, Serrano-Lopez called Robles and asked her to buy some food and come to his cousin's apartment. Robles, Horton, and Horton's children bought some food and went to that apartment. While there, Robles could tell that Serrano-Lopez had been drinking and observed him drink alcohol. After approximately twenty minutes, Robles, Horton, and her children left to rent some movies.
While Robles and the others were at Blockbuster renting movies, Robles received a telephone call from Serrano-Lopez, who indicated in that call that he wanted her to return to her house as soon as possible. Robles and the others immediately returned to Robles's house where Serrano-Lopez and his brother, David, were standing by David's truck. Serrano-Lopez was upset and stated that he was having a problem with another person and Robles attempted to calm him. She refused to enter her car when Serrano-Lopez, who had a set of keys to her car, requested that she leave with him, because she knew that he had been drinking. Serrano-Lopez then pulled out a handgun and pointed it at Robles causing Roblesto be afraid. Robles again refused to enter the car and he drove off down the street before turning the vehicle around and returning to Robles's house. Robles and Horton and her children ran inside.
David attempted to prevent Serrano-Lopez from entering the front door, but he entered the house anyway and confronted Robles. He was angry, grabbed her by the hair, and struck her in the right side of her head with the butt of the handgun he was holding. When Robles asked him why he had done that, he was very angry and refused to answer her. He released her and she attempted to flee through the kitchen and out the back door. Serrano-Lopez caught her at the door, again grabbing her by the hair. He was still holding the gun and struggled with her in the kitchen. David came into the kitchen to try to separate the two, but Serrano-Lopez pushed him into the stove causing him to burn his hand.
Serrano-Lopez wrapped his arm around Robles and pointed the gun at the back of her head causing her to be afraid. She broke free and fled to the living room where Serrano-Lopez once again caught her by the hair and hit her very hard with the handgun in the left side of her head, knocking her to her knees and causing her head to bleed profusely from that wound. Robles put her hands on the wall and attempted to stand. Serrano-Lopez then ordered Robles to the bedroom and began picking her up and pushing her in that direction. He was still holding the gun at that time and Robles placed her hands on the wall to prevent him from pushing her.
David told Serrano-Lopez that police officers were in the driveway. Upon learning that, he took Robles into the kitchen, placed the handgun in a kitchen drawer, closed the drawer, and then led Robles to the bedroom, closing the door behind them. He removed hisclothes and ordered Robles to remove hers. She refused to do so, telling him that she needed to stop the bleeding from the wounds to her head. Serrano-Lopez angrily ripped off her tee shirt and removed her pants and underwear. He then forced her to perform fellatio on him against her will, afterwards engaging in sexual intercourse with her against her will. Serrano-Lopez told her that he would kill her, also telling her that if he went to jail he would have someone hurt her or kill her children. Robles was concerned about the handgun because Serrano-Lopez could have retrieved it at any time. Robles dressed in a pair of pajama bottoms and a tee shirt after the sex was over.
While Robles and Serrano-Lopez were in the bedroom, police officers called his cell phone number several times. Both spoke with the officers on the cell phone, and Robles told the officers what Serrano-Lopez instructed her to say. Robles also told the officers that she could not come outside because he would not let her go, and stated in response to the officers' questions that she had put the gun somewhere and hidden it. Serrano-Lopez did not allow Robles to leave the bedroom or the house until the officers fired a plastic projectile through the bedroom window. Robles, David, and Serrano-Lopez exited the house. Robles returned inside the house to show officers the location of the handgun. She also told the officers that Serrano-Lopez had told her what to say during the telephone calls and that he forced her to have sex with him. Robles went to the hospital where she received treatment for the two lacerations to her head, one of which required four staples to close.
At the conclusion of his trial, the jury found Serrano-Lopez guilty of class A felony criminal deviate conduct, class A felony rape, class B felony criminal confinement, class C felony battery, class D felony sexual battery, two counts of class D felony pointing a firearm,class A misdemeanor battery, and class A misdemeanor carrying a handgun without a license. The trial court sentenced Serrano-Lopez to an aggregate sentence of sixty years. Serrano-Lopez now appeals.
1.
Serrano-Lopez challenges the sufficiency of the evidence to support his convictions for criminal deviate conduct and rape. In particular, he challenges the sufficiency of the evidence that he possessed the handgun during the sexual offenses, a factor that elevates the offenses to class A felonies.
When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh the evidence nor reassess witness credibility. Henley v. State, 881 N.E.2d 639 (Ind. 2008). We consider the evidence that supports the judgment and any reasonable inferences that can be drawn from that evidence. Id. We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Id.
For both criminal deviate conduct and rape, the offenses are elevated from class B felonies to class A felonies if the offenses are committed while armed with a deadly weapon. I.C. § 35-42-4-1 & 2. Serrano-Lopez argues that the State's evidence of his constructive possession of the handgun is insufficient.
In order to sustain a conviction for a class A felony, it is not necessary that the weapon be held on the victim at all times during the offense. Taylor v. State, 438 N.E.2d 294 (Ind. 1982). The enhancement from a class B felony to a class A felony is justifiable where the weapon was "sufficiently accessible to the defendant so as to exert a coercive influence uponthe victim during the offenses in question." Grafe v. State, 686 N.E.2d 890, 895 (Ind. Ct. App. 1997). In fact, our Supreme Court has held that we should look to factors such as whether there was an initial show of deadly force with the weapon, whether the defendant intended to intimidate the victim with the weapon, and whether the weapon was at least constructively possessed by the defendant at all times. Potter v. State, 684 N.E.2d 1127 (Ind. 1997).
In order to establish constructive possession, the State must show the defendant had the intent and capability to maintain dominion and control over the contraband. Lampkins v. State, 682 N.E.2d 1268 (Ind. 1997), modified on reh'g on other grounds, 685 N.E.2d 698 (Ind. 1997). The State must prove the defendant's knowledge of the presence of the firearm, and that knowledge may be inferred from either exclusive dominion and control over the premises containing the firearm, or from evidence of additional circumstances indicating the defendant's knowledge of the presence of the firearm....
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