Opinion
24A-CR-183
10-10-2024
Corrie Westbrook, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Douglas Johnson Law Offices of Kathleen T. Zellner Warrenville, Illinois Benjamen W. Murphy Law Office of Ben Murphy Griffith, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Lake Superior Court Trial Court Cause No. 45G01-2111-F3-192 The Honorable Salvador Vasquez, Judge
ATTORNEYS FOR APPELLANT Douglas Johnson Law Offices of Kathleen T. Zellner Warrenville, Illinois Benjamen W. Murphy Law Office of Ben Murphy Griffith, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Bradford, Judge
Case Summary
[¶1] In April of 2021, A.C. and Corrie Westbrook, with whom she was acquainted but not romantically involved, went out for drinks near A.C.'s Munster home. After one drink, A.C. began to feel "off" and, by the time the duo left the bar at around 10:15 p.m., could not stand on her own and later could not remember how she had gotten home. At some point, A.C. woke up on her couch and felt Westbrook performing oral sex on her, although she was unable to see, speak, or move. Over the course of the night, A.C. regained consciousness several more times, always briefly and always in the same condition; once, she was aware that Westbrook was having sexual intercourse with her. While A.C. was unconscious, Westbrook took several videos of himself licking and digitally penetrating her vagina. The next morning, A.C. confronted Westbrook, who eventually admitted that he had "fingered" her before A.C. ordered him to leave. In a text exchange later that morning, Westbrook apologized to A.C., telling her that he was sick to his stomach and that he would be fine with her pressing charges.
[¶2] In November of 2021, the State charged Westbrook with Level 3 felony rape, alleging that he had performed sexual intercourse on A.C. while she had been unaware that it had been occurring. The probable cause affidavit filed with the charge, however, also included A.C.'s recollection that Westbrook had also performed oral sex on her, and, in July of 2022, the State disclosed to Westbrook the videos of him licking and digitally penetrating her vagina.
[¶3] In October of 2023, approximately two weeks before Westbrook's trial, the State moved to amend the charge against Westbrook to include an allegation that he had also engaged in other sexual conduct with A.C., a term encompassing oral sex and digital penetration. After initially denying the State's motion to amend, the trial court granted it and denied Westbrook's motion for a continuance. During trial, the State sought to have the jury instructed on a dictionary definition of "consent," which the trial court ultimately did over Westbrook's objection. Westbrook's trial defense was, essentially, that A.C. had consented to sexual activity with him. The jury found Westbrook guilty of Level 3 felony rape, and the trial court sentenced him to eleven years of incarceration. Because Westbrook was not prejudiced by the amendment to the charging information, the denial of his continuance was not an abuse of discretion, and there was sufficient evidence to support the jury's verdict, we affirm.
Facts and Procedural History
[¶4] A.C. met Westbrook in 2016 or 2017 when he was a bouncer at a local bar she frequented. Westbrook expressed romantic interest in A.C., but she told him that he was too young for her and that she was not looking to get involved with anyone. On April 17, 2021, Westbrook came over to A.C.'s Munster home, and they left shortly after 8:30 p.m., ending up at Marko's Bar, arriving at 9:17 p.m. A.C. had one drink (a double shot of vodka with a splash of cranberry juice) and part of another. By the time she had finished the first drink, A.C. felt "off." Tr. Vol. IV p. 124. As Westbrook and A.C. were leaving the bar at 10:15 p.m., A.C. fell down. By the time the duo arrived back at A.C.'s home at approximately 10:30, video obtained from A.C.'s Ring doorbell indicated that she was unable to walk on her own, visibly impaired, and leaning against Westbrook, who had to help her walk. A.C. lost consciousness.
[¶5] At some point, A.C. briefly regained consciousness; she could hear and feel, but could not see, move, or speak. Westbrook was performing oral sex on her. After a few seconds, A.C. lost consciousness again. A.C. woke up a second time, in the same condition as before, and felt excruciating pain and Westbrook's penis penetrating her vagina. After a few seconds, she lost consciousness yet again. A.C. briefly woke up a few more times, always in the same condition; once she felt a cold wash-cloth on her vagina, once she heard Westbrook vomiting in the kitchen, and once she felt Westbrook slap her face and yell at her. A.C., however, "couldn't come out of it" and blacked out again each time. Tr. Vol. IV p. 131. At some point while A.C. was passed out, Westbrook took a number of short videos with his mobile telephone, which he saved to Snapchat. Some of the videos showed A.C.'s uncovered genitals and others showed Westbrook licking and digitally penetrating A.C.'s vagina.
[¶6] The next morning, A.C. discovered that her pantyhose had been removed, her dress had been pulled up around her chest, and she was naked from the waist down. A.C. felt pain in her vagina when she urinated. A.C. confronted Westbrook, who was sleeping in her house, and, while he initially denied having done anything, he eventually admitted that he had "fingered" her. Tr. Vol. IV p. 134. A.C. ordered Westbrook out of her house, and he left at 5:30 a.m.
[¶7] A.C. and Westbrook exchanged text messages later that morning, and she told him that she knew he had "t[aken] advantage" of her while she had been passed out. Ex. Vol. p. 58. Westbrook immediately began apologizing to A.C. and telling her that he was "truly sick to my stomach and ashamed of [him]self." Ex. Vol. p. 61. Westbook told A.C., "If you want to press charges I'm completely fine with that." Ex. Vol. p. 61. A.C. went to the hospital later that day and submitted to a sexual-assault examination. While the results of a hypnotic drug panel run as part of the examination were all negative, the panel used by the hospital is "very limited" and tests for only five of the most common hypnotics; many street drugs that would have the same effects would not have been detected. Tr. Vol. V p. 55. Westbrook's DNA was found in the external genital swab taken during A.C.'s examination.
[¶8] On November 5, 2021, the State charged Westbrook with Level 3 felony rape, specially alleging that he had had "sexual intercourse" with A.C. while she had been unaware that it was occurring. Appellant's App. Vol. II p. 26. The probable cause affidavit filed with the charge included A.C.'s statement to police alleging that she had felt Westbrook both licking her vagina and inserting his penis in her vagina during her brief periods of semi-consciousness. The State obtained Westbrook's Snapchat videos and disclosed them to the defense in discovery on July 19, 2022.
[¶9] On October 25, 2023, just under two weeks before the start of the scheduled trial, the State moved to amend the information to allege that Westbrook had performed "sexual intercourse or other sexual conduct" on A.C. while she had been unaware that it was occurring. Appellant's App. Vol. II p. 98. On October 31, 2023, the trial court denied the State's motion to amend because it had not been based on any new evidence and could have been made earlier. The State moved to reconsider on November 2, 2023. On November 6, 2023, the trial court granted the State's motion to amend, finding that there was no prejudice to Westbrook as he had had the evidence supporting the amendment for over a year. For the same reason, the trial court denied Westbrook's request for a continuance.
[¶10] During trial, the State tendered a proposed jury instruction defining "consent": "'Consent' is defined as agreement, approval, or permission as to some act or purpose, especially given voluntarily by a competent person; legally effective assent." Appellant's App. Vol. II p. 143. Westbrook objected to the instruction on the basis that consent was not an element of the crime and that giving an instruction on it would confuse the issues; the prosecutor countered that the definition was relevant if Westbrook were going to claim the sexual activity was consensual. The trial court took the instruction under advisement until the evidence was concluded, at which point it decided to give the instruction.
The form on which the proposed instruction was submitted indicated that the definition of "consent" had been taken from Black's Law Dictionary.
[¶11] In closing argument, the prosecutor argued that consent cannot be given by a person who is unconscious and that the video evidence showed A.C. was unconscious, not moving, and blacked out. Westbrook stated that it was "never at issue whether [Westbrook] had sexual contact with [A.C.,]" Tr. Vol. VI p. 46, but argued that "this was a date"-pointing specifically to A.C.'s clothing and make-up, her allegedly flirtatious behavior at Marko's, and the lack of evidence of a date-rape drug. Tr. Vol. VI p. 49. Westbrook also argued that it was unknown what "her motive" was "the following morning" but that her testimony about the alleged rape was not credible. Tr. Vol. VI p. 49. The jury found Westbrook guilty of Level 3 felony rape, and the trial court sentenced him to eleven years of incarceration.
Discussion and Decision
I. Amendment to the Charging Information
[¶12] Westbrook contends that the trial court abused its discretion in allowing the State to amend the charging information to allege that he had performed "sexual intercourse or other sexual conduct" as opposed to just alleging "sexual intercourse." Appellant's App. Vol. II pp. 26, 98. The State may amend an information "at any time because of any immaterial defect, including [...] the use of alternative or disjunctive allegations as to the acts, means, intents, or results charged; [. . . or] any other defect which does not prejudice the substantial rights of the defendant." Ind. Code § 35-34-1-5(a). The State may also amend an information "in matters of substance" at any time before trial provided the amendment does not prejudice the defendant's substantial rights. Ind. Code § 35-34-1-5(b)(2).
[¶13] A trial court's ruling on a motion to amend an information is reviewed for an abuse of discretion. Bright v. State, 205 N.E.3d 1055, 1059 (Ind.Ct.App. 2023). Whether an amendment is a matter of substance or form, however, is a question of law that is reviewed de novo. Blythe v. State, 14 N.E.3d 823, 829 (Ind.Ct.App. 2014). A defendant's substantial rights include a right to sufficient notice and an opportunity to be heard regarding the amendment. Erkins v. State, 13 N.E.3d 400, 405 (Ind. 2014). If the amendment "does not affect any particular defense" to the charge, it does not violate the defendant's substantial rights. Id. The ultimate question is whether the defendant had a reasonable opportunity to prepare for and defend against the charge. Id. at 405-06.
[¶14] We need not determine whether the amendment to the charging information was one of form or substance, because we have little trouble in concluding that Westbrook has failed to establish that allowing it affected his substantial rights. Westbrook does not claim (nor has he ever claimed) that he was unaware of the State's evidence of other sexual conduct. The probable cause affidavit, filed on November 5, 2021 (or approximately two years before Westbrook's trial), relates A.C.'s claim that "at one point during the night she woke up to find Westbrook performing oral sex on her with his mouth on her vagina[.]" Appellant's App. Vol. II p. 27. Moreover, on July 19, 2022, the State indicated that it had obtained, and was providing to Westbrook, twenty-nine Snapchat videos. On September 1, 2023, Westbrook moved to exclude the Snapchat videos, acknowledging that they purported to show Westbrook and A.C. "engaged in graphic sexual contact, with closeups of cunnilingus and female genitalia." Appellant's App. Vol. II p. 81.
[¶15] Westbrook contends that the late amendment denied him a potential defense, i.e., that, while he did engage in some sexual conduct with A.C., he did not engage in intercourse with her. It is not entirely clear how the loss of this potential defense harms Westbrook; it seems to us that such an admission would make a jury more likely to conclude that Westbrook and A.C. had also had intercourse, not less. Moreover, the question is not whether Westbrook was denied a potential defense, but, rather, whether he had had a reasonable opportunity to prepare for and defend a charge that he had engaged in other sexual conduct with A.C. The answer to that question is, unquestionably, yes. By the time his trial began, Westbrook had been aware that the State had possessed evidence of other sexual conduct for almost two years and had attempted to have it excluded, indicating that he had closely evaluated it. Westbrook had ample opportunity to prepare to defend an allegation that he had performed other sexual conduct on A.C. while she had been unaware that it was occurring. The trial court did not abuse its discretion in allowing the State to amend the charging information.
II. Continuance
[¶16] Westbrook also contends that the trial court abused its discretion by denying his request for a continuance after the court granted the State's motion to amend the charging information. "Upon permitting [an] amendment, the court shall, upon motion by the defendant, order any continuance of the proceedings which may be necessary to accord the defendant adequate opportunity to prepare the defendant's defense." Ind. Code § 35-34-1-5(d) (emphasis added). The trial court's decision about whether a continuance is "necessary" is reviewed only for an abuse of discretion. Lemont v. State, 344 N.E.2d 88, 90 (Ind.Ct.App. 1976), trans. denied; see also Radford v. State, 468 N.E.2d 219, 222 (Ind. 1984) (stating that the court "may at its discretion" grant a continuance after the information is amended). "Continuances to allow more time for preparation are generally disfavored in criminal cases." Zanussi v. State, 2 N.E.3d 731, 734 (Ind.Ct.App. 2013). A continuance seeking more time to prepare must make "'a specific showing as to how the additional time would have aided counsel.'" Id. (quoting Robinson v. State, 724 N.E.2d 628, 634 (Ind.Ct.App. 2000), trans. denied).
[¶17] Under the circumstances, we conclude that Westbrook has failed to establish that a continuance was necessary to afford him adequate time to prepare. As noted, the amendment did not add a new charge or a new allegation of which Westbrook had been previously unaware. The probable cause affidavit had informed him two years previously that A.C. had alleged that he had performed both oral sex and sexual intercourse on her. Put another way, the amendment was not supported by any new evidence, it was merely amended to conform with evidence Westbrook had had for two years. Westbrook has never claimed that any evidence supporting the allegation of other sexual conduct was a surprise to him; to the contrary, when objecting to the amendment, Westbrook acknowledged, "Of course, I know what the evidence in the case is, Judge." Tr. Vol. III p. 46. The trial court acted well within its discretion in denying Westbrook's motion for a continuance. See Henderson v. State, 173 Ind.App. 505, 506, 364 N.E.2d 175, 176-77 (1977) (affirming denial of continuance after the trial court had granted the State's motion to amend the information on the day before trial and the amendment had not changed the evidence at all).
III. Jury Instruction
[¶18] Westbrook contends that the trial court abused its discretion in instructing the jury that "consent" could be defined as follows: "'Consent' is defined as agreement, approval, or permission as to some act or purpose, especially given voluntarily by a competent person; legally effective assent[.]" Appellant's App. Vol. II p. 143. Jury instruction lies within the sound discretion of the trial court. Harrison v. State, 32 N.E.3d 240, 251 (Ind.Ct.App. 2015), trans. denied. We review the trial court's instruction decisions only for an abuse of that discretion. Id. The purpose of a jury instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly. Buckner v. State, 857 N.E.2d 1011, 1015 (Ind.Ct.App. 2006). Jury instructions are to be considered as a whole, and reversal is not appropriate unless the instructions, as a whole, mislead the jury. Id. In reviewing a challenge to a jury instruction, this Court considers: (1) whether the instruction is a correct statement of the law; (2) whether the substance of the instruction is covered by the other instructions; and (3) whether there is evidence in the record to support the giving of the instruction. Johnson v. State, 959 N.E.2d 334, 338 (Ind.Ct.App. 2011), trans. denied.
[¶19] We have little hesitation in concluding that the trial court did not abuse its discretion in giving the jury a dictionary definition of "consent." Westbrook does not claim that the instruction contained an incorrect statement of the law, that it was covered by other instructions, or that it was unsupported by the evidence. Westbrook, citing Ludy v. State, 784 N.E.2d 459 (Ind. 2003), and Dill v. State, 741 N.E.2d 1230 (Ind. 2001), contends only that the instruction was confusing and unduly emphasized one aspect of the case because the State was required to show a lack of awareness on A.C.'s part, not a lack of consent. In Ludy, the Indiana Supreme Court disapproved a jury instruction that a conviction could be solely based on the uncorroborated testimony of the victim because "it unfairly focuses the jury's attention on and highlights a single witness's testimony[,] it presents a concept used in appellate review that is irrelevant to a jury's function as fact-finder[, and,] by using the technical term 'uncorroborated,' the instruction may mislead or confuse the jury." Ludy, 784 N.E.2d at 461. The Dill Court disapproved a jury instruction that a jury could consider the flight of a person after the commission of a crime as evidence of consciousness of guilt on the basis that it was "confusing, unduly emphasize[d] specific evidence, and [was] misleading[.]" Dill, 741 N.E.2d at 1233.
[¶20] We do not agree that the "consent" instruction given in this case runs afoul of Ludy and Dill. First, we do not agree that it is misleading. We agree with the State that the concepts of consent and lack of awareness are closely related in that one cannot consent to something that one is not even aware is occurring or did not expect to occur. We see little risk of harm in giving the jury a definition of consent when proving lack of awareness is merely the means to the end of negating any possibility of consent. Moreover, we cannot agree that the instruction unduly emphasizes any evidence. Indeed, it was Westbrook who brought the issue of consent to the fore, with the clear theme of his defense being that A.C. had consented to whatever sexual activities she had participated in with Westbrook. Westbrook elicited evidence about A.C.'s allegedly provocative manner of dress and alleged flirtation and testimony from the sexual-assault nurse examiner that her examination of A.C. could not determine whether sexual activity was consensual. In his closing, Westbrook conceded that it was "never at issue whether [Westbrook] had sexual contact with [A.C.]" Tr. Vol. IV p. 46, but argued that they had gone on "their date[,]" Tr. Vol. IV p. 47, and that their evening out "was a date." Tr. Vol. IV p. 49. The unmistakable implication of all of this was that Westbrook was hoping to convince the jury that A.C. had consented to whatever sexual activity had occurred that night. In our view, Westbrook cannot place the issue of consent before the jury and then complain that an instruction containing an accurate definition of consent has unduly emphasized it. Westbrook has failed to establish that the trial court abused its discretion in this regard.
IV. Sufficiency of the Evidence
[¶21] Westbrook last contends that the State produced insufficient evidence to sustain his conviction for Level 3 felony rape. In reviewing a challenge to the sufficiency of the evidence to support a criminal conviction, we do not reweigh the evidence or assess the credibility of witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). The evidence, even if conflicting, and all reasonable inferences drawn therefrom are viewed in a light most favorable to the conviction. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). The evidence need not overcome every reasonable hypothesis of innocence but is sufficient if a reasonable inference may be drawn from it to support the verdict. Stubbers v. State, 190 N.E.3d 424, 429 (Ind.Ct.App. 2022), trans. denied. We will affirm the conviction unless no reasonable fact-finder could find the elements of the offense proven beyond a reasonable doubt. Delagrange v. State, 5 N.E.3d 354, 356 (Ind. 2014).
[¶22] In order to convict Westbrook of Level 3 felony rape, the State was required to establish that he "knowingly or intentionally ha[d] sexual intercourse with another person or knowingly or intentionally cause[d] another person to perform or submit to other sexual conduct [...] when [...] the other person [was] unaware that the sexual intercourse or other sexual conduct [was] occurring[.]" Ind. Code § 35-42-4-1(a)(2). Westbrook contends that the State produced insufficient evidence to sustain his conviction because A.C. testified that she had been intermittently conscious and aware of at least some of the sexual activity that had occurred on the night in question. The State contends that intermittent awareness does not mean that an alleged victim cannot be unaware. We agree with the State on this point.
[¶23] A.C. testified that when she had regained consciousness the first time, Westbrook had already been performing oral sex, and that when she had regained consciousness the second time, he had already been in the act of having intercourse with her. A.C.'s testimony supports a finding that the sex acts had begun when she had been unaware that they were occurring, which is sufficient to sustain Westbrook's conviction. Moreover, A.C. did not testify to having been aware of any digital penetration, but the Snapchat videos show that Westbrook had, in fact, digitally penetrated A.C.'s vagina multiple times. This evidence is also sufficient to sustain Westbrook's conviction. Westbrook has failed to establish that his conviction is supported by insufficient evidence.
[¶24] Finally, Westbrook contends that his conviction is entirely based on A.C.'s testimony, which he claims is incredibly dubious. The incredible dubiosity rule applies only when the testimony is so inherently incredible or improbable that it "runs counter to human experience" and "no reasonable person could believe it." Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001); Davis v. State, 658 N.E.2d 896, 897 (Ind. 1995). Application of the "incredible dubiosity" rule is "limited to cases where a sole witness presents inherently contradictory testimony which is equivocal or the result of coercion and there is a complete lack of circumstantial evidence of the defendant's guilt." Majors v. State, 748 N.E.2d 365, 367 (Ind. 2001). This is not one of those cases. A.C.'s testimony was not inherently contradictory or equivocal, and it was supported by ample circumstantial evidence. Westbrook's attempts to identify contradictions between A.C.'s trial testimony and her prior statements to the sexual-assault nurse examiner do not render her testimony incredibly dubious. Inconsistencies between trial testimony and other statements made before trial do not render the testimony incredibly dubious; it must be the trial testimony itself that is internally inconsistent and contradictory, which Westbrook has failed to establish. See, e.g., Murray v. State, 761 N.E.2d 406, 409 (Ind. 2002); Holeton v. State, 853 N.E.2d 539, 541-42 (Ind.Ct.App. 2006). Moreover, A.C.'s testimony was corroborated by the video evidence that Westbrook had performed oral sex and digitally penetrated her while she was unconscious, the presence of his DNA in A.C.'s external genital swab, the text messages in which he had apologized and expressed shame over what he had done, and the Ring video evidence showing A.C. was in an impaired condition when she arrived back at the house. In the end, Westbrook's incredible-dubiosity argument is nothing more than an invitation to reweigh the evidence, which we will not do. See, e.g., McHenry, 820 N.E.2d at 126.
[¶25] The judgment of the trial court is affirmed.
Crone, J., and Tavitas, J., concur.