ATTORNEY FOR APPELLANT
Belle T. Choate
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Janet Brown Mallett
Deputy Attorney General
SUPREME COURT OF INDIANA
SEAN MILLER, )
Appellant (Defendant Below), )
v. ) Supreme Court
) Cause No. 49S00-9807-CR-399
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Ruth D. Reichard, Judge
Cause No. 49GO2-9702-CF-025069
ON DIRECT APPEAL
September 22, 1999
Sean Miller was convicted of rape and three counts of criminal deviate conduct,
found to be a habitual offender, and sentenced to an aggregate term of 120 years
imprisonment. He raises the following issues on appeal: Factual and Procedural Background
(1) Did the trial court properly exclude testimony concerning Miller's claimed prior
sexual involvement with the victim?
(2) Did the trial court correctly respond to the jury's request to review testimony?
(3) Did the trial court state sufficient reasons to support the imposition of
consecutive, rather than concurrent, sentences?
We affirm the judgment of the trial court.
Miller testified at trial and admitted that he had both intercourse and oral sex with the
alleged victim, A.W., on the night of February 10, 1997, but claimed that the encounter was
consensual. According to Miller, he and the alleged victim, A.W., had been engaged in a
sexual relationship for over two years.
A.W., on the other hand, testified that she and Miller had been friends for some time
but had had no sexual relationship before the evening in question. Miller came to her
apartment and the two watched a movie. At approximately 2:00 a.m., another man named
Eric arrived at the apartment. Shortly after Eric arrived, Miller went to the kitchen under
the pretense of obtaining a drink and returned with a knife. Miller began struggling with
A.W. on the floor. Then Eric and Miller took A.W. into her daughter's room where both
men sexually assaulted A.W. at knife point, after threatening to kill her. After the men left
the apartment, A.W. called the police.
Eric was never found or charged. Miller was arrested and charged with rape and four
counts of criminal deviate conduct, and was also charged as a habitual offender. He was
acquitted of one count of criminal deviate conduct, but convicted of the remaining counts and
the habitual offender enhancement. I. Evidence of Prior Sexual Relationship with the Victim
Miller claims that evidence of his past sexual relationship with A.W. was improperly
excluded under Indiana Evidence Rule 412, Indiana's Rape Shield Rule. Miller tendered
testimony at a pretrial hearing from a witness claiming to have overheard conversations
between Miller and A.W. concerning their prior sexual relations. A pretrial order ruled this
testimony inadmissible. At trial, Miller made no offer to prove and presented no challenge
to this pretrial ruling. We agree with Miller that the trial court's pretrial ruling was
erroneous. Rule 412(a)(1) contains an express exception for evidence of the victim's . . .
past sexual conduct with the defendant.
A pre-trial hearing or a motion in limine is appropriate to determine the admissibility
of evidence outside of the jury's hearing in order to avoid prejudice. See Hadley v. State,
496 N.E.2d 67, 71 (Ind. 1986). However, in order to preserve an error for appellate review,
a party must do more than challenge the ruling on a motion in limine. See Tyra v. State, 506
N.E.2d 1100, 1102-03 (Ind. 1987); Johnson v. State, 472 N.E.2d 892, 908 (Ind. 1985). [T]o
raise the question of error, the evidence must be offered at trial to give the trial court an
opportunity to rule on its admissibility at that time. Tyra, 506 N.E.2d at 1103 (citations
omitted). This requirement has been explicitly held applicable to exclusions under the Rape
Shield doctrines, even though Rule 412 and the Rape Shield Law include specific provisions
for ruling on the admissibility of the proposed evidence after pretrial notice and hearing. See
Shaw v. State, 489 N.E.2d 952, 954 (Ind. 1986); Tyson v. State, 619 N.E.2d 276, 289 & n.13
(Ind. Ct. App. 1993).See footnote
Because Miller failed at trial to offer the evidence excluded at the pre-
trial hearing, he has not preserved the error for appellate review. II. Trial Court's Response to Jury's Note
Miller alleges that the trial court erred in its response to a jury request to hear Miller's
testimony again. The jury sent a note requesting to review Sean Miller's testimony on
direct testimony and the transcript of the taped statements of Sean Miller's March, 1997
statement to Detective Frazier. After discussing the note with both parties on the record,
the trial court responded with a note stating:
[t]he law does not permit me to allow you to review testimony unless you have a
disagreement as to the testimony. If you simply cannot recall the testimony, then you
are required to decide the case based on your memory of the witnesses' testimony.
If you do have a disagreement, please indicate that in writing on this paper and give
it back to Candi [the bailiff] now.
The State and defense counsel both agreed to the trial court's response before it was sent to
the jury. The jury replied, [w]e simply cannot recall. We understand your ruling.
A. Fundamental Error
Generally, failure to preserve an issue at trial results in waiver of the issue on appeal.
Because the defense concurred in the trial court's handling of this matter, Miller argues that
the trial court committed fundamental error in advising the Jury as to the question of
'recall.' This Court may address issues that were not preserved if they constitute
fundamental error. See Ben-Yisrayl v. State, 690 N.E.2d 1141, 1150 (Ind. 1997). To
constitute fundamental error, the defendant must show that the error was a substantial and
blatant violation of basic principles which rendered the result of the trial unfair. Roach v.
State, 695 N.E.2d 934, 942 (Ind. 1998).
Miller cites no authority for the proposition that the trial court's handling of this issue
was error. In any case, the trial court's response to the jury's note certainly does not rise to
the level of rendering the entire trial unfair. In Reynolds v. State, 460 N.E.2d 506, 508-09
(Ind. 1984), this Court was presented with a similar situation. In that case, the trial court
instructed the jury after deliberations had begun, without informing the defense counsel or
the defendant and without calling the jury into open court. Although the trial court's actions
in Reynolds were inappropriate, this Court held that the issue was waived because it was not
preserved at trial and also did not constitute fundamental error. Those facts are certainly
more egregious than the current case where the trial court wrote a note to the jury with the
State, defense counsel, and the defendant present.
B. Due Process Claim
Miller further contends that since the Court determined to instruct the jury, through
her note, as to the nature of 'recall' that their ambiguous response stating that they did not
recall must be examined further . . . . [I]f the Jury could not recall his testimony -- then its
decision was made without considering all of the evidence, den[ying Miller] fundamental due
process. Miller cites no authority for the proposition that the jury's failure to recall an
unspecified portion of his testimony raises a due process issue. In any event, a due process
claim was not preserved because Miller did not present it to the trial court, and requested
no further inquiry into the jury's lack of collective memory. See Reynolds, 460 N.E.2d at
508 ([W]e cannot allow a party to permit a court's action to go unchallenged and then
attempt to raise the court's action as error on appeal.). Therefore, any error in the trial
court's failure to inquire further into the jury's ability to recall is waived. III. Sentencing
Miller was convicted of three counts of criminal deviate conduct and received forty
years for each count to be served concurrently. Miller was also convicted of one count of
rape and was sentenced to fifty years imprisonment with an enhancement of thirty years for
the habitual offender status. The trial court ordered that the rape sentence and the criminal
deviate conduct sentences be served consecutively for a total sentence of 120 years after the
habitual offender enhancement of thirty years.
The trial court found four aggravating factors: Miller's prior adult criminal record,
that the instant offense occurred while Miller was still serving the executed sentence for
another crime at a community corrections program, prior attempts at rehabilitation had failed,
and the cruelty and humiliation involved in the instant offense. Miller does not contest the
propriety of any of these aggravators, and does not challenge the imposition of the enhanced
sentences. His sole contention is that the trial court's imposition of a consecutive sentence
is inappropriate because the trial court failed to state specific reasons to support consecutive
sentences other than those cited in imposing a sentence greater than the presumptive.
At least one aggravating factor is required to impose an enhanced or consecutive
sentence, see Davidson v. State, 558 N.E.2d 1077, 1092 (Ind. 1990), and the same factor may
both enhance a presumptive sentence and justify consecutive sentences. See Taylor v. State,
710 N.E.2d 921, 924-25 (Ind. 1999); Reaves v. State, 586 N.E.2d 847, 852 (Ind. 1992).
Miller's prior criminal history and his violation of the conditions of his last criminal offense
are factors listed in Indiana Code § 35-38-1-7.1(b) to be considered when evaluating
whether to impose an enhanced sentence or a consecutive sentence. Because the trial court
found four aggravating circumstances, two of which were statutory, and only one factor is
sufficient to impose consecutive sentences, there was no error in sentencing.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and SELBY, JJ., concur.
Although Shaw and Tyson were decided under Indiana's Rape Shield Law, it is substantially
similar to Indiana Evidence Rule 412. See Ind. Code § 35-37-4-4 (1998).
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