NAJAM, Judge.
Charles S. Whitham appeals his convictions for attempted murder, a Class A felony (Count I); aggravated battery, a Class B felony (Count II); criminal confinement, as a Class B felony (Count V); two counts of battery, each as a Class C felony (Counts III and IV); and strangulation, a Class D felony (Count VI). Whitham raises three issues for our review, which we consolidate and restate as whether the trial court abused its discretion in the admission of certain evidence. We also raise sua sponte whether several of Whitham's convictions violated the constitutional prohibition against double jeopardy.
We affirm in part, reverse in part, and remand with instructions.
On July 31, 2012, Whitham attacked and nearly killed his grandmother, Velma Brown, in her bedroom. Whitham grabbed Brown's hands and struck her with her own hands across her face and on her chest. Whitham told Brown that she "was too old" and that she "ought to die." Tr. at 75. Whitham then "put his hands on [Brown's] neck and squeezed," choking Brown on her bed. Id. at 76. Brown blacked out and at some point awoke on the floor of her bedroom but did not "know how long [she had] laid there." Id. at 77. When she was able to get up, she went to her granddaughter Sherry's house, and Sherry's husband called the police.
On September 9, 2013, the State charged Whitham with attempted murder, a Class A felony (Count I); aggravated battery, a Class B felony (Count II); criminal confinement, as a Class B felony (Count V); two counts of battery, each as a Class C felony (Counts III and IV); and strangulation, a Class D felony (Count VI). Each of the State's charges was based on Whitham's July 31 attack on Brown.
At his ensuing jury trial, the State called Brown to testify and asked her
Later during the jury trial, the State called Dr. Dean Hawley to testify. Dr. Hawley is an expert in, among other things, clinical forensic medicine, which includes identifying strangulation injuries and determining their medical consequences. Dr. Hawley testified that he had reviewed photographs of the injuries Brown sustained on her neck that were taken immediately after the July 31 attack. According to Dr. Hawley, those photographs demonstrated "a ligature strangulation mark," that is, that the strangulation had occurred by use of an object rather than by hand. Id. at 359. Dr. Hawley testified that Brown's injury was "so severe... [t]he skin [wa]s completely wiped off ... by the intensity of the pressure of the ligature around the neck." Id. Dr. Hawley further testified that unconsciousness in the victim likely occurred "within seconds" of the strangulation, and that he had never seen an injury this severe in a nonfatal case. Id. at 361. When asked whether he had "an opinion as to ... the source of that injury," Dr. Hawley opined: "I'm pretty comfortable saying that ... this is a wire cord wrapped around the neck." Id. at 362.
Also during the jury trial, the State introduced into evidence the contents of a phone conversation Whitham had had with his mother, Cheryl, while Whitham was incarcerated for the instant offenses. In that conversation, Whitham acknowledged having Cheryl tell Brown that he would relocate to Alabama if Brown agreed to not cooperate with the prosecution. As Whitham put it, Brown was the State's "prime witness" and "without her they can't do sh*t." State's Ex. 40 at 5.
The jury found Whitham guilty as charged. The trial court entered its judgment of conviction against Whitham for each count, and it sentenced him to an aggregate term of thirty-six years in the Department of Correction. This appeal ensued.
On appeal, Whitham challenges the trial court's admission of Brown's testimony regarding the two pre-July 31 attacks, Dr. Hawley's testimony, and the jailhouse phone conversation. As our supreme court has explained:
Hall v. State, 36 N.E.3d 459, 467 (Ind. 2015) (citations and quotation marks omitted). With that standard in mind, we turn to Whitham's arguments on appeal.
Whitham first asserts that the trial court erred when it permitted Brown to testify to two occasions before July 31, 2012, in which Whitham attacked Brown. In the trial court, Whitham objected on the ground that this testimony violated Indiana Evidence Rule 404(b), which provides in relevant part as follows:
The State responded to Whitham's Rule 404(b) objection on the ground that Brown's testimony regarding the prior acts was properly admissible to show "the relationship between the parties and the defendant's motive, which the State allege[d] to be hostility." Appellant's App. at 282. The trial court agreed with the State and overruled Whitham's objection.
As we have explained:
Embry v. State, 923 N.E.2d 1, 9 (Ind.Ct. App.2010) (some citations omitted; alterations and some omissions in original), trans. denied.
We cannot say that the trial court abused its discretion when it admitted Brown's testimony of the two prior attacks to show Whitham's motive for the July 31 attack. The Indiana Supreme Court has made clear that "hostility is a paradigmatic motive for committing a crime." Hicks, 690 N.E.2d at 222 (quotations omitted). And where the defendant and the victim have a frequently hostile relationship, evidence of those prior hostilities "are ... usually admissible" under Rule 404(b). Id. at 222-23. Here, Brown's testimony regarding the two pre-July 31 attacks demonstrated Whitham's pattern of hostility towards Brown and Whitham's motive for the July 31 attacks. Thus, we cannot say that the trial court abused its discretion when it admitted this testimony under Rule 404(b).
Whitham next asserts that the trial court improperly allowed Dr. Hawley to opine that Brown had been the victim of ligature strangulation, which Whitham characterizes as "speculation and not sufficiently reliable." Appellant's Br. at 13. In essence, Whitham argues that Dr. Hawley's opinion was unfounded because Brown never complained about having been strangled by a ligature; because Dr. Hawley never personally examined Brown; because Brown was not treated for ligature strangulation following the July 31 attack; and because Dr. Hawley could not rule out the possibility that the marks on Brown's neck were caused by the prior incident in which Whitham had pulled Brown by her evening gown.
But Dr. Hawley did rely on photographic evidence of Brown's injuries, and his qualifications as an expert were well established. As our supreme court has recognized, "[d]octors often testify about the injuries depicted in photographs even though they were not present when the pictures were taken and did not personally examine the injuries depicted." Malinski v. State, 794 N.E.2d 1071, 1085 (Ind.2003). Whitham's argument on appeal simply asks this court to substitute its judgment for the trial court's, which we will not do.
Whitham next asserts that the trial court abused its discretion when it permitted the State to introduce into evidence his jailhouse phone conversation with his mother. According to Whitham, this evidence was both irrelevant and unfairly prejudicial. Evidence is relevant if "it has any tendency to make a fact more or less
We cannot say that the trial court abused its discretion when it concluded that the phone call was relevant. In that phone call, Whitham admitted to his mother that, if Brown did not cooperate with the State, he would move to Alabama upon his release. Again, as Whitham put it, Brown was the State's "prime witness" and "without her they can't do sh*t." State's Ex. 40 at 5. This evidence tended to show Whitham's consciousness of guilt, which made it relevant. E.g., Robinson v. State, 720 N.E.2d 1269, 1272 (Ind.Ct.App.1999).
We also reject Whitham's argument under Rule 403. At trial, Whitham requested and received a partial redaction of the phone call, yet on appeal he asserts that various portions of that conversation that remained unredacted unfairly prejudiced him. Because Whitham did not object to the admission of the redacted version of the phone call at trial, he has failed to preserve this argument for our review. E.g., Griffin v. State, 16 N.E.3d 997, 1006 (Ind.Ct.App.2014).
In sum, we cannot say that the trial court abused its discretion in the admission of evidence.
We sua sponte conclude that the entry of conviction for five of the State's charges against Whitham violated his right to be free from double jeopardy. Although Whitham did not object on double jeopardy grounds at trial, questions of double jeopardy implicate fundamental rights and, as such, may be raised for the first time on appeal, or even by this court sua sponte. See Smith v. State, 881 N.E.2d 1040, 1047 (Ind.Ct.App.2008). Whether convictions violate double jeopardy is a pure question of law, which we review de novo. Rexroat v. State, 966 N.E.2d 165, 168 (Ind.Ct.App.2012), trans. denied.
Entry of conviction for both an offense and its lesser-included offenses "is impermissible under both state and federal double jeopardy rules." Wentz v. State, 766 N.E.2d 351, 359-60 (Ind.2002). An offense is an inherently lesser included offense when it may be established by proof of the same material elements or less than all the material elements that define the "greater" crime charged. Smith, 881 N.E.2d at 1046. An offense is a factually lesser included offense when the charging instrument alleges "the means used to commit the crime charged include all of the elements of the alleged lesser included offense." Id. (citations omitted). In other words, to determine if an offense is factually included, a trial court will look to the defendant's conduct as charged. Harvey v. State, 719 N.E.2d 406, 411 (Ind.Ct.App.1999).
Again, here the trial court entered its judgment of conviction against Whitham for attempted murder, a Class A felony (Count I); aggravated battery, a Class B felony (Count II); criminal confinement, as a Class B felony (Count V); two counts of battery, each as a Class C felony (Counts III and IV); and strangulation, a Class D felony (Count VI). Each charge arose from the July 31 attack. As the prosecutor explained to the jury during his closing argument:
Tr. at 458-61.
Each of Whitham's convictions below Count I, the Class A attempted murder conviction, is a lesser offense to that conviction. First, this court has long held that aggravated battery is an inherently lesser included offense to attempted murder. See Meriweather v. State, 659 N.E.2d 133, 141-42 (Ind.Ct.App.1995), trans. denied. Thus, we reverse Whitham's conviction for Count II, aggravated battery, a Class B felony.
Second, on the facts of this case, Count V, criminal confinement, is a factually lesser included offense to attempted murder. The charging information alleged that Whitham had committed attempted murder either when he intentionally manually applied pressure to Brown's neck and impeded her normal breathing or blood circulation or when he intentionally applied a ligature to her neck and impeded her normal breathing or blood circulation. Appellant's App. at 25. Likewise, the charging information alleged that Whitham had committed criminal confinement, as a Class B felony, when he
Third, Counts III and IV, Whitham's Class C felony battery convictions, are also factually lesser included offenses to the attempted murder conviction. One of the battery charges alleged that Whitham had intentionally touched Brown in a rude, insolent, or angry manner by means of a deadly weapon, namely, a ligature or Whitham's hands. Appellant's App. at 25-26. The other alleged that Whitham had intentionally touched Brown in a rude, insolent, or angry manner, which resulted in serious bodily injury, namely Brown's unconsciousness or asphyxiation by manual and/or ligature strangulation. Id. at 26. In other words, again, it was impossible for the jury to have found Whitham guilty of attempted murder without having found the facts underlying the battery charges to be true. As such, we reverse Whitham's convictions under Counts III and IV, the Class C felony battery convictions.
Fourth, and finally, Whitham's conviction for Count VI, strangulation, a Class D felony, is also a factually lesser included offense to the attempted murder conviction. This charge alleged that Whitham had intentionally applied pressure to the throat or neck of Brown in a manner that impeded her normal breathing or blood circulation. Id. at 26. As with the other charges, the facts in support of this allegation were included in the facts used by the State to show that Whitham attempted to murder Brown. We reverse Whitham's conviction on Count VI.
We briefly note that, because Whitham received concurrent sentences for each of his convictions, our holding that his lesser-included offenses must be vacated does not affect his total sentence. And Whitham's concurrent sentences do not affect our double jeopardy analysis. Concurrent sentences do not cure double jeopardy violations. See, e.g., Bunch v. State, 697 N.E.2d 1255, 1257 (Ind.1998); Carroll v. State, 740 N.E.2d 1225, 1233 (Ind.Ct.App.2000), trans. denied.
In sum, we affirm Whitham's conviction for Count I, attempted murder, a Class A felony. However, we reverse Whitham's convictions for aggravated battery, a Class B felony (Count II); criminal confinement, as a Class B felony (Count V); battery, as a Class C felony (Count III); battery, as a Class C felony (Count IV); and strangulation, a Class D felony (Count VI). Each of these offenses was a lesser-included offense to Whitham's conviction for attempted murder. Thus, we remand with instructions that the trial court vacate Whitham's lesser-included offenses.
RILEY, J., and MAY, J., concur.
