Jefferson Griffin v. State of Indiana

Text Box
Pursuant to Ind.Appellate Rule 15(A)(3), 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:    ATTORNEYS FOR APPELLEE:

KELLEY Y. BALDWIN    JEFFREY A. MODISETT
ROBISON YEAGER GOOD BALDWIN    Attorney General of Indiana
& APSLEY, P.A.
Shelbyville, Indiana     JANET BROWN MALLETT
            Deputy Attorney General
            Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

JEFFERSON GRIFFIN, ) ) Appellant-Defendant, ) ) vs. ) No. 73A01-9710-CR-337 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE SHELBY COUNTY SUPERIOR COURT I
The Honorable Jack A. Tandy, Judge
Cause No. 73D01-9608-CF-54

 
October 6, 1998

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge Case Summary
    Appellant-Defendant, Jefferson Griffin ("Griffin"), appeals his conviction for Sexual Misconduct with a Minor,See footnote 1 1 a class B felony, and the jury's finding that he was an habitual offender. We affirm in part and reverse in part.
Issues
    Griffin raises three issues for our review which we restate as:
    I.    Whether the evidence was sufficient to support his conviction for Sexual Misconduct with a Minor;
 
    II.    Whether Griffin received effective assistance of counsel; and,
 
    III.    Whether the trial court properly denied Griffin's motion for directed verdict during the habitual offender phase of trial.
 
Facts and Procedural History
    The facts most favorable to the verdict show that the victim, A.G., was spending time with Griffin and some of his family members. Griffin was walking with A.G. to a nearby abandoned house, when they stopped along the road near some bushes and had sexual intercourse. A.G. was fourteen years old at the time.
    Griffin was charged with Sexual Misconduct with a Minor and False Informing. Griffin's filed a motion to suppress his pre-trial statement to the police in which he admitted the offense. His motion was denied and he was tried and found guilty on both counts. The jury also found Griffin to be an habitual offender.
Discussion and Decision
I.
    Griffin argues that the evidence was not sufficient to support his conviction for Sexual Misconduct with a Minor. He contends that A.G.'s testimony and his statement to the police were uncorroborated by any evidence and that A.G. was not a credible witness.
        When reviewing a claim of insufficient evidence, we neither reweigh the evidence nor judge the credibility of witnesses. Rickey v. State, 661 N.E.2d 18, 24 (Ind. Ct. App. 1996), trans. denied. We look only to the evidence of probative value and the reasonable inferences to be drawn therefrom which support the judgment. Id. When there is substantial evidence of probative value to support the conviction, the judgment will not be disturbed. Id.
    In order to meet its burden, the State had to prove beyond a reasonable doubt that Griffin "with a child at least fourteen (14) years of age but less than sixteen (16) years of age, perform[ed] . . . sexual intercourse" and that Griffin was "at least twenty-one (21) years of age." Ind. Code § 35-42-4-9(a).
    During the trial, A.G. testified that while Griffin was taking her to an abandoned house, he stopped near some bushes along the roadway and threatened to leave her there unless she submitted to sexual intercourse. She testified that she was scared and consented to the act. The evidence indicates that A.G.'s birthday was August 14, 1981 and that the offense occurred on August 9, 1996, when A.G. was still fourteen years old. In addition, the police recovered a used lubricant packet from the scene. Griffin's argument is simply an

invitation for us to reweigh the evidence, which we will not accept. A conviction may stand on the uncorroborated evidence of a minor witness. Newsome v. State, 686 N.E.2d 868, 875 (Ind. Ct. App. 1997). Even without considering Griffin's statement to the police, the evidence was sufficient to support his conviction for Sexual Misconduct with a Minor.
II.
    Griffin next argues that he did not receive effective assistance of counsel when his attorney did not object at trial to the admission of Griffin's pre-trial statement to police. He asserts that the trial court would have sustained such an objection even though his motion to suppress the statement had already been denied. Griffin had contended that the statement was not voluntarily given due to his ingestion of prescription medications prior to making the statement.
    To prevail on a claim of ineffective assistance of counsel, Griffin must meet the two- part test announced in Strickland v. Washington, 466 U.S. 668 (1984). See Lowery v. State, 640 N.E.2d 1031, 1041 (Ind. 1994), cert. denied, 116 S. Ct. 525 (1995). First, the petitioner must show that the performance of his counsel was deficient. Strickland, 466 U.S. at 687. The reviewing court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Lowery, 640 N.E.2d at 1041. Counsel is presumed competent, and the petitioner must present strong and convincing evidence to rebut the presumption. Id. Second, the petitioner must show that the deficient performance prejudiced the defense. Strickland, 466 U.S. at

687. The petitioner must prove that his attorney's failure to function was so prejudicial that it deprived appellant of a fair trial. Lowery, 640 N.E.2d at 1041.
    However, we need not determine deficient performance before examining the prejudice prong of the test. Legue v. State, 688 N.E.2d 408, 410 (Ind. 1997). In order to prove that failure to object rendered the representation ineffective, Griffin must show that the objection would have been sustained and that he was prejudiced by the failure to object. Hough v. State, 690 N.E.2d 267, 270 (Ind. 1997).
    A confession may be given knowingly, intelligently and voluntarily, notwithstanding voluntary intoxication as a result of alcohol, drugs or a combination of both. Brooks v. State, 683 N.E.2d 574, 575 (Ind. 1997). A defendant's statement will be deemed incompetent only when he is so intoxicated that it renders him not conscious of what he is doing or produces a state of mania. Id. at 576. Intoxication to a lesser degree goes only the weight to be given to the statement and not its admissibility. Id.
    Griffin has not shown that an objection to the admission of his confession would have been sustained. His degree of intoxication did not render him unconscious of what he was doing. In addition, the trial court had already denied his motion to suppress and no additional evidence was presented at trial to support his assertion that the statement was involuntarily given. Because Griffin's lack of objection at trial to his pre-trial confession did not prejudice him, we conclude that his counsel was not ineffective.

III.
    Griffin argues that the trial court erred in denying his motion for directed verdict during the habitual offender phase of trial. He contends that the State failed to present sufficient evidence of the date of commission of one of the two required prior felonies. The State concedes that Griffin's habitual offender conviction must be vacated.
    Judgment on the evidence is properly granted only where there is a total absence of evidence on some essential issue or where the evidence is without conflict and susceptible to only one inference and that inference is in favor of the defendant. Ind.Trial Rule 50(A); Stewart v. State, 688 N.E.2d 1254, 1258 (Ind. 1997). In order to sentence Griffin as an habitual offender, the State must prove that he "has accumulated two (2) prior unrelated felony convictions. Ind. Code § 35-50-2-8(a). The State must prove that the second prior felony was committed after Griffin was convicted and sentenced upon the first prior felony. Spencer v. State, 660 N.E.2d 359, 363 (Ind. Ct. App. 1996).
    At trial, Griffin admitted to both prior felonies. During the habitual offender phase, the State presented evidence that Griffin was committed to the Department of Corrections on December 21, 1979 for burglary. Also, the State showed that Griffin was sentenced for voluntary manslaughter and battery on May 28, 1981. We find no evidence in the record regarding the date of commission of the second offenses. As a result, there was no evidence from which the jury could infer that Griffin committed the second offenses after he was convicted and sentenced for the burglary. This is a "fundamental defect" which renders the evidence insufficient to support a finding that Griffin was an habitual offender. Steelman v.

State, 486 N.E.2d 523, 525 (Ind. 1985). Griffin's habitual offender determination must be vacated.
    Affirmed in part and reversed in part.
 
KIRSCH, J., and STATON, J. concur.

Footnote: 1     1Ind. Code § 35-42-4-9(a)(1).

Converted by Andrew Scriven