Sharp v. State

• Decision Date: 25 October 2005
• Docket Number: No. 18A02-0501-CR-30.,18A02-0501-CR-30.
• Citation: 835 N.E.2d 1079
• Parties: Brent D. SHARP, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

835 N.E.2d 1079

Brent D. SHARP, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 18A02-0501-CR-30.

Court of Appeals of Indiana.

October 25, 2005.

COPYRIGHT MATERIAL OMITTED

Michael P. Quirk, Muncie, for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

BAKER, Judge.

Appellant-defendant Brent D. Sharp appeals his convictions for two counts of Burglary,¹ a class A felony, Rape,² a class B felony, Criminal Confinement,³ a class D felony, Criminal Deviate Conduct,⁴ a class A felony, Child Molesting,⁵ a class A felony, and Criminal Confinement,⁶ a class C felony. Specifically, Sharp claims that the trial court erred in ordering Sharp to provide a DNA sample because there was "no probable cause or reasonable suspicion" for the trial court to have ordered the sample. Appellant's Br. p. 2. Sharp also argues that his trial counsel was ineffective for failing to object to the use of the DNA evidence at trial. Concluding that Sharp has failed to show that his Fourth Amendment rights under the United States Constitution were violated with regard to the DNA sample, and further observing that Sharp's trial counsel was not ineffective, we affirm the judgment of the trial court.

FACTS

In December 2002, Tyjuana Thompson was living in Muncie with her two daughters, fourteen-year-old J.L., and nine-year-old A.L. On the evening of December 13, Thompson left for work around 10:00 p.m. After J.L. went to bed approximately one-half hour later, she woke up at some point and felt a sensation on her leg. Looking at the doorway, J.L. noticed a man who she initially thought was her cousin, Christopher, who had been released from prison a few months earlier. Christopher also lived next door to Thompson. The man, who wore a tan coat and a ski mask that covered his face, was subsequently identified as Sharp. Sharp approached J.L. and began to choke her. When J.L. began to fight, Sharp choked her harder and smothered her face with a pillow. Sharp then removed J.L.'s shorts and underwear and inserted his penis into her vagina. At some point during the assault, J.L. lost consciousness.

When J.L. awoke, she was lying on the floor, cross-legged, and her arms were bound with duct tape behind her back. Her mouth was also covered with tape, and she was wearing only a t-shirt. Eventually, J.L. crawled into her sister's room, where A.L. was able to remove the duct tape. The girls then called Thompson at work and told her about the incident.

The police were notified, and J.L. was transported to Ball Memorial Hospital in Muncie, where a sexual assault evidence examination was performed. During the examination of J.L., Dr. Max Rudicel found evidence of forced penetration. Indiana State Police forensic scientist Karen Bruewer analyzed the evidence and discovered sperm on the vaginal and cervical slides and swabs, the external genital swabs, and the vaginal wash. She forwarded this evidence to the Indiana State Police in Lowell, where forensic DNA analyst Nicole Ihnat prepared DNA profiles. It was determined that J.L.'s cousin, Christopher, was eliminated as a contributor of the sperm. Moreover, an initial search in the Indiana DNA database produced no matches.

On the evening of May 22, 2003, Jessica Woolums was babysitting for her six young cousins at a Muncie residence. After Jessica helped her seven-year-old cousin, C.W., do her homework, they fell asleep in the living room with the other children. At some point, a man wearing a bandana and winter hat entered the house, picked up C.W., and carried her to a back room of the residence. The man, who was subsequently identified as Sharp, asked C.W. how old she was. After C.W. replied that she was seven years old, Sharp, who was armed with a knife, removed C.W.'s clothing. He then choked C.W. to the point of unconsciousness. When she awoke, Sharp carried C.W. to the kitchen, where he inserted his penis into her anus and attempted to insert his penis into her vagina. Sharp then carried C.W. into the dining room where he again sexually assaulted her. Apparently, Jessica and the other children slept through this episode.

After Sharp left the residence, C.W. and Jessica went next door for help. The police were contacted, and C.W. was eventually transported to Ball Memorial Hospital, where two sexual assault evidence kits were taken. Dr. Rudicel observed that C.W. had been choked, and Dr. Lopiccolo noticed a tear to C.W.'s anus, evidence of forced penetration, and a white opaque cloudy material in C.W.'s rectum. Bruewer, the Indiana State Police forensic scientist, analyzed the evidence and discovered the presence of semen on both the rectal swab and the rectal smear slide.

Prior to these incidents, Sharp had been convicted of burglary in 1999, was sentenced to a three-year suspended sentence and was placed on probation until December 2, 2002, for that offense. In June 2003, Sharp's probation officer filed a petition to revoke probation, alleging that Sharp had failed to meet various conditions of probation that had been imposed upon him. Although the probation officer was aware of Sharp's violations when they occurred, the deputy prosecutor did not file the petition to revoke until June 2003, long after Sharp's probation had ended. As a consequence, on August 21, 2003, Sharp moved to dismiss the petition on the grounds that it had not been timely filed. The trial court denied the motion on August 25, 2003, placed Sharp back on probation, and ordered Sharp to provide a DNA sample. Prior to his release from the jail, Sharp submitted a DNA sample that was subsequently entered into the State's DNA database. Sharp provided the DNA sample in accordance with a nunc pro tunc order entered on September 16, 2003. This order stated that Sharp's DNA sample should have been taken when he was convicted of burglary in 1999, and that his DNA should have already been included in the database.

During the course of the investigation of the above incidents, the police department requested neighbors and family members of the victims to submit to voluntary DNA testing. Also, on September 12, 2003, a search was conducted in the DNA database, where it was determined that the DNA profile in J.L.'s case matched the DNA of Sharp, whose sample had been entered into the database in accordance with the trial court's order regarding the burglary offense and the probation revocation. Four days later, Nicole Ihnat prepared DNA profiles from the evidence that was gathered from the incident involving C.W. The DNA profile generated from the seminal material found on the rectal slide in C.W.'s case matched that of Sharp, who lived next door to C.W.

Thereafter, on October 3, 2003, Sharp was charged with the above offenses. He then filed a motion to suppress the DNA evidence, contending that the sample had been obtained in violation of the Fourth Amendment to the United States Constitution as well as Article 1, Section 11 of the Indiana Constitution. In ruling on Sharp's motion, the trial court observed that Sharp's DNA sample had been taken pursuant to the nunc pro tunc order that had been issued.

Sharp then appealed the revocation of his probation in the burglary case, and we determined that the petition to revoke probation had not been timely filed because three of the bases that the State alleged to support the petition occurred after the probationary period had ended. See Sharp v. State, 807 N.E.2d 765, 767 (Ind. Ct.App.2004). In our opinion that was handed down on May 3, 2004, we observed that

Because the probation officer knew of the violations for which the trial court revoked Sharp's probation but did not file a petition to revoke until seven months after Sharp's probationary period ended, we find that the petition should have been dismissed as untimely.

Id. at 768. We further found that Sharp's challenge to the constitutionality of Indiana Code section 10-13-6-10,⁷ the statute governing and creating Indiana's DNA database, was waived because he did not make a proper objection in the trial court. Id.

In this case, after a hearing on Sharp's motion to suppress, the trial court denied the motion on November 16, 2004, and adopted the order that another trial court judge in Delaware County Circuit Court 3 had issued when Sharp presented the same issues regarding the admissibility of DNA evidence. In particular, the trial court in both cases determined that Sharp was collaterally estopped from relitigating the constitutionality of the taking of his DNA sample because that issue had already been litigated in the appeal from the probation revocation. Appellant's App. p. 75-76; 176. Also, as the State pointed out in its response to Sharp's motion to suppress:

3. The Defendant appealed the seizure of his blood under Cause # 18D02-9902-CF-13. The Court of Appeals affirmed that portion of the trial court's decision requiring Defendant to submit a blood sample. Sharp v. State, 807 N.E.2d 765 (Ind.App. 2004). The Defendant had a full and fair opportunity to litigate the issue in that case. Any attempt, in this case, to attack the acquisition of Defendant's blood sample out of 18D02-9902-CF-13 is prohibited by the doctrines of res judicata and collateral estoppel.

4. Additionally, in the Delaware Circuit Court 3, State of Indiana v. Brent Sharp, 18C03-0310-FA-19, the defendant filed a Motion to Suppress that is identical to the Motion filed in the case at bar. The Delaware Circuit Court 3 Court denied the defendant's motion. In the Circuit Court 3 case, the defendant attempted to relitigate the same issues as raised in Delaware Circuit Court 2 and the Indiana Court of Appeals, just as he is attempting in the case at bar. The Delaware Circuit Court 3 held that the doctrine of collateral estoppel prohibited the Defendant from relitigating.

Appellant's App. p. 71-72.

When the jury trial commenced in this case, Sharp did not...