Whitener v. State, 20A04–1205–CR–254.

• Decision Date: 14 February 2013
• Docket Number: No. 20A04–1205–CR–254.,20A04–1205–CR–254.
• Citation: 982 N.E.2d 439
• Parties: Daquan WHITENER, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

982 N.E.2d 439

Daquan WHITENER, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 20A04–1205–CR–254.

Court of Appeals of Indiana.

Feb. 14, 2013.

Elizabeth A. Bellin, Cohen Law Offices, Elkhart, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BROWN, Judge.

Daquan Whitener appeals his conviction for burglary as a class A felony and the trial court's determination that he register as a sex offender as a condition of probation. Whitener raises two issues which we revise and restate as:

I. Whether the evidence is sufficient to sustain his conviction for burglary as a class A felony; and

II. Whether the court erred in ordering that he register as a sex offender as a condition of probation.

Additionally, the State raises an issue on cross-appeal, namely, whether the court properly declined to enter a judgment of conviction for rape as a class B felony based upon double jeopardy principles. We affirm.

The facts most favorable to the conviction follow. On August 5, 2009, K.A. ¹ was at her home with her three children in Elkhart County, Indiana, and over the course of the afternoon her mother, Laura Jackson, Holly Meyers, and Raquel Pizana arrived to visit. K.A.'s mother spent most of the afternoon inside with K.A.'s children while the four women socialized outside in the backyard. At some point in the afternoon or evening, the women decided that they wanted to drink alcohol. Also, at one point Meyers phoned Whitener, who was seventeen years old at the time, and asked if he could return a CD which belonged to Pizana and bring it to K.A.'s home. Whitener arrived along with his cousin Anthony Wheeler. K.A. had not previously met Whitener or Wheeler. When Whitener arrived, K.A. and Jackson were inside, and Whitener and Wheeler talked outside with Meyers and Pizana. Whitener and Wheeler left the home with Pizana without speaking to K.A.

Whitener and Wheeler later returned to K.A.'s home and again spoke in the backyard with Meyers and Pizana and finished a bottle of gin, and Pizana called K.A. to the back door and asked if she would go with Pizana, Whitener, and Wheeler to the liquor store to purchase more alcohol. Before driving to the liquor store they stopped by another home and picked up Telvon Whitener, who was thirteen or fourteen years old and was another cousin of Whitener's. When they arrived at the liquor store, K.A. went inside, purchased a bottle of gin, and then returned to the car and they left. When they returned to K.A.'s home, K.A. went inside to attempt “to get rid of [her] mom” while the others went into the backyard. Transcript at 145. Around 8 p.m., after K.A.'s mother left, K.A. asked Pizana to drive her to Kroger to purchase liquor for herself, and again K.A., Pizana, Whitener, and Wheeler traveled together to purchase alcohol. During this time, Jackson stayed at the home to watch K.A.'s children and Meyers was in her car talking on the phone.

While in Pizana's vehicle, for the most part the people in the car listened to the radio and did not speak to each other. First, the vehicle went to a gas station so Whitener could purchase “a black and mild,” and then they proceeded to Kroger. K.A. and Pizana went inside, purchased a bottle of vodka, and then drove back to K.A.'s home. Id. at 147. K.A. did not speak with Whitener while they were in the car.

When they returned, Whitener, Telvon, and Wheeler sat at the kitchen table while K.A., Jackson, and Pizana sat in the living room on the couch. ² K.A. and Jackson began to raise the issue with Pizana that they did not “feel comfortable with [the boys] there cause [sic] [they] didn't know how old they were but [they] knew that they were young,” and they told Pizana that they did not want the boys to be there. Id. at 151. Eventually, the three boys left with Pizana, but before they left K.A. asked Whitener if she could use his phone because she did not have her own phone. That brief conversation was the only time K.A. spoke with Whitener that evening.

After they left, Jackson told K.A. that she should keep drinking because K.A. did not have the opportunity to do so very often due to her children, Jackson assured K.A. that she would watch her children, and K.A. “drank a lot.” Id. at 154. At some point in the night they returned, and at around 1 a.m. Pizana drove Jackson, Whitener, Telvon, and Wheeler away from K.A.'s home. K.A. fell asleep on the couch and did not remember Jackson and Pizana leaving. Pizana observed that K.A. was “really, really drunk,” noting that she was stumbling and slurring her words. Id. at 86. Pizana dropped Jackson off at her home and then drove the three boys to another residence and dropped them off.

They stayed at that house for a couple of minutes and then walked to Whitener's house which took about five or ten minutes. While at Whitener's house, Whitener went upstairs and then came back downstairs and stated to Wheeler and Telvon that he was going to go back to K.A.'s house because “he remembered that she said she wanted to have sex with him,” although Wheeler did not hear K.A. state this to Whitener. Id. at 283. After staying at Whitener's house for “a minute,” the three of them walked back to K.A.'s house. Id. at 284.

As they were arriving at K.A.'s home, Whitener explained to Telvon and Wheeler that K.A. told Whitener to enter through a living room window because “she had child safety locks on her door.” Id. at 285. Whitener lifted up the screen in the window, pulled back the window, pushed in a fan which was blocking the window and crawled through. K.A. awoke and observed her “fan going down in [her] window.” Id. at 156. Whitener then went to the back door and let Wheeler and Telvon into the home. K.A. did not react to the fan initially because she was “too drunk” and was “going in and out, blacking out,” but she observed “a couple people in [her] house” and recognized Telvon and Whitener. Id. at 157–158.

Once inside, Whitener asked Telvon to “try to talk to her” and to “[k]iss on her neck a little bit or whatever.” Id. at 250. Telvon kissed K.A. on the neck and pulled K.A.'s pants down, but she told him to stop and he did not have sex with her. At one point Whitener moved Telvon aside and told Telvon that “you don't know what you're doing.” Id. at 258. K.A. observed Whitener, who was “real close” to her face and had his penis in his hand, and both Whitener and Telvon were telling her that it was “alright.” Id. at 159. Whitener put a condom on and had sex with K.A. During intercourse, K.A. was crying and attempting to push Whitener off of her and cried out for Jackson to help because she thought Jackson was still at her house. After Whitener finished having sex he asked Wheeler “do you want a turn man,” but Wheeler declined. Id. at 261. They then left through the back door, but before Whitener left he discarded the condom. After they left, K.A. “stumbled to the back door, pushed it all the way shut and locked it,” and then she went back into the living room and fed her baby, who had been in the living room in her car seat next to the couch during this time. K.A. started crying and eventually fell asleep. Id. at 162.

The next morning, K.A. awoke to her mother knocking on her door, and her mother asked why her window was pried open. Soon after, Jackson came over to K.A.'s house and observed K.A. looking “kind of traumatized and ... crying and her hair was messed up and here [sic] mom was screaming,” and K.A. then started telling Jackson what had occurred. Id. at 114. K.A. called the police and Officer Bruce Anglemyer responded and took photographs of the home and transported K.A. to the hospital to have a rape kit done. K.A. noticed that her vaginal area was sore to the point that she “couldn't wear pants” or “wipe” and that her “pad was hurting [her] cause [sic] it kept rubbing up against [her].” Id. at 167. K.A. noticed while at the hospital that she had bruises on her leg and back which she did not recognize before the previous night, and also that she had a “hickey” on her neck that had not been present before. Id. at 169.

On August 28, 2009, the State charged Whitener with Count I, burglary as a class A felony; and Count II, rape as a class B felony. The court held a jury trial which commenced on March 23, 2010. At trial, K.A. testified that she did not ask Whitener to return to her home that night, did not ask him to climb through the window, and did not ask him to have sex with her. K.A. testified that she did not call the police that night because she did not have a phone and did not want to go outside. Wheeler and Telvon both testified that Whitener had consensual sex with K.A. and that Telvon did not have sex with her.

Corporal James Peterson of the Elkhart Police Department testified that he collected “buckle swab standards” from Telvon and Whitener. Id. at 299. Officer Dan Milanese testified that he collected a condom and condom wrapper, located in the kitchen trash can, from K.A.'s home, and photographic evidence of the condom was admitted into evidence. Jamie Lynn Rice, a registered nurse at Elkhart General Hospital, testified that she performed a sexual assault exam on K.A. and that K.A. told Rice that “she was very sore in her vagina ... she was swollen ... the external labia of her vagina and uhm, very red.” Id. at 349. Rice testified that K.A. had a red mark on the right side of her neck, swelling on her labia majora, a scratch to her knee, and a bruise on her back and longer scratch above the bruise. Detective Carlton Conway testified that he interviewed Whitener and Telvon and that Whitener voluntarily gave a statement in which he admitted that he had sex with K.A., that K.A. told him to climb through the window, and that although she did not say specifically that she wanted to have sex “he knew what she meant.” Id. at 395. Detective Conway also indicated...