Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1395 | July 22, 2016 Page 1 of 15

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

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

James A. Edgar

J. Edgar Law Offices, Prof. Corp.

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Larry D. Allen

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Brandon Lewis,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 22, 2016

Court of Appeals Case No.

49A02-1509-CR-1395

Appeal from the Marion Superior 

Court

The Honorable Grant W. 

Hawkins, Judge

Trial Court Cause No.

49G05-1505-F1-15583

Najam, Judge.
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Statement of the Case

[1] Brandon Lewis appeals his convictions for rape, as a Level 1 felony; criminal 

confinement, as a Level 3 felony; battery, as a Level 5 felony; criminal mischief, 

as a Class B misdemeanor; and his adjudication as a habitual offender following 

a jury trial. Lewis presents the following issues for our review:

1. Whether the trial court abused its discretion when it

excluded certain defense witnesses from trial.

2. Whether the State presented sufficient evidence to support 

his convictions.

We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History 

[2] In the recent past, Lewis and H.D. became acquainted after Lewis fathered 

children with H.D.’s sister. Lewis and his girlfriend lived with H.D. and H.D.’s 

children for a period of time in 2014, and Lewis and H.D. had a sexual 

relationship for a period of time. On April 18, 2015, Lewis, H.D., and H.D.’s

two minor children went out to dinner together and then to a friend’s house for 

a party. Lewis had spent the night with H.D. the night prior, and they may 

have had consensual sexual intercourse at that time. The night of the party, 

however, H.D. became annoyed with Lewis, and H.D. and her children left the 

party without him. H.D. told Lewis not to come back to her house that night. 

H.D. and her children went home and went to sleep.
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[3] At some point in the night, H.D., who had been sleeping in an upstairs 

bedroom at her duplex, “heard banging” downstairs and “heard the blinds” 

move in a window downstairs. Tr. at 64. H.D. called 9-1-1 to report that 

someone was breaking into her house. While she was on the phone, she saw 

Lewis walking up the stairs. H.D. walked downstairs past him and opened the 

door to wait for the police to arrive. In the meantime, Lewis followed H.D. 

and told her that she should not have called the police. Lewis took a gun out of 

his pocket and showed it to her. As he took the gun out, he said that “he would 

get locked up for a long time” and that “he would do anything that he had to 

against anybody” to avoid jail. Id. at 68.

[4] When officers with the Indianapolis Metropolitan Police Department 

(“IMPD”) arrived, they began to question Lewis, who told them to talk to H.D. 

The officers then asked H.D., who was standing approximately six feet away 

from Lewis during the questioning, whether she “needed them,” and she 

responded in the negative. Id. at 70. H.D. did not tell the officers that she 

wanted Lewis to leave. After the officers left, Lewis was “in and out of the 

house,” and then Lewis and H.D. began to argue. Id. at 108. At some point, 

Lewis threw H.D.’s phone against a wall, and it broke. While in an upstairs 

bathroom, Lewis pushed H.D., and they started fighting. H.D. yelled out of the 

open bathroom window, and Lewis closed the window. Lewis hit H.D. in the 

face, and, at some point, H.D. lost consciousness for a brief time. When H.D. 

regained consciousness, Lewis dragged her from the bathroom to her bedroom. 
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[5] Once in the bedroom, Lewis told H.D. to take off her pants, but she refused. 

While Lewis pulled off her pants, she struggled with him in an effort to stop 

him. After her pants were off, Lewis “ripped” off her underwear. Id. at 81. 

Lewis then picked H.D. up and put her on the bed. Lewis told H.D. to turn 

over, which she initially refused to do, but then she turned over. Lewis started 

having sexual intercourse with H.D., and she told him to stop. Lewis 

continued having sexual intercourse with H.D., and she alternatively told him 

to stop and told him that he could proceed. Finally, Lewis asked H.D. whether 

he could “finish,” and she said yes. Id. at 126.

[6] Afterwards, one of H.D.’s children came into her bedroom and asked for 

something to drink. Lewis went downstairs and returned with a drink, and 

H.D. told him to leave. Lewis got angry and told H.D. that he was taking his 

washing machine and dryer with him. When he was unable to unhook the 

washing machine, he “just pulled it out of the wall.” Id. at 87. Lewis then 

called his girlfriend, and H.D. went upstairs and went to sleep.

[7] The next evening,

1 H.D. went to a nearby hospital and reported that she had 

been beaten and raped, but she did not contact the police. Amanda Via-Smith, 

the physician’s assistant treating H.D. at the hospital, observed bruises and 

abrasions on H.D.’s body consistent with H.D.’s description of events the night 

before. Via-Smith offered H.D. a consultation with a forensic nurse, and H.D. 

 

1

 The incident occurred on Saturday night or early Sunday morning, and H.D. went to the hospital that 

Sunday evening.
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agreed. However, a forensic nurse was not available that evening, and ViaSmith instructed H.D. to return to the hospital at a later date to see the forensic 

nurse. On April 21, H.D. returned to the hospital, and a forensic nurse 

conducted a rape kit examination. H.D. told the forensic nurse that Lewis had 

beaten and raped her, and the nurse also observed injuries consistent with 

H.D.’s narrative. After leaving the hospital, H.D. and her children moved to 

the Julian Center. While at the Julian Center, H.D. stayed in touch with 

Lewis, and he visited H.D. and the children on two occasions.

[8] On May 3, H.D. returned to her home and saw that it had been burglarized. 

H.D. called 9-1-1. When officers arrived, a friend of H.D.’s named Cody was 

also there, and Cody told the officers that, a few weeks prior, H.D. had told 

Cody that Lewis had raped H.D. While the officers were talking about the rape 

with H.D., Lewis arrived at H.D.’s house. After recovering H.D.’s ripped 

underwear from her bedroom and taking photographs of H.D.’s home, the 

officers arrested Lewis.

[9] The State charged Lewis with rape, as a Level 1 felony; burglary, as a Level 2 

felony; criminal confinement, as a Level 3 felony; battery, as a Level 5 felony; 

and criminal mischief, as a Class B misdemeanor. The State also charged 

Lewis with being a habitual offender. Following a bench trial, the trial court 

found Lewis guilty on all counts except for the burglary count, and the court 

adjudicated him to be a habitual offender. The trial court entered judgment 

accordingly and sentenced Lewis to an aggregate executed term of forty-three 

years. This appeal ensued.
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Discussion and Decision 

Issue One: Defense Witnesses

[10] Lewis contends that the trial court abused its discretion when it excluded three 

proffered defense witnesses from testifying at trial. In particular, after the final 

pre-trial hearing, Lewis added the following people to his witness list for the 

July 13 trial: Kelly Abel-Raymond (June 11); Kiva Culbertson (June 26); and 

Suprena Carter (July 8). In its motion to exclude those witnesses, the State 

alleged that Abel-Raymond had twice failed to appear for scheduled 

depositions; Culbertson had not appeared for a scheduled deposition; and the 

State had been unable to schedule Carter for a deposition given the short notice.

[11] Trial courts have the discretion to exclude a belatedly disclosed witness when 

there is evidence of bad faith on the part of counsel or a showing of substantial 

prejudice to the State. Williams v. State, 714 N.E.2d 644, 652 (Ind. 1999). In 

light of a defendant’s right to compulsory process under the federal and state 

constitutions, there is a strong presumption to allow the testimony of even latedisclosed witnesses. See U.S. Const. amend. 6; Ind. Const. Art. 1, § 13.

[12] Initially, as the State correctly points out, Lewis did not make an offer of proof 

with respect to Abel-Raymond’s proposed testimony. As such, Lewis’ 

objection to the exclusion of Abel-Raymond’s testimony was not preserved on 

appeal, and the issue is waived. Wiseheart v. State, 491 N.E.2d 985, 991 (Ind. 

1986) (holding that when a defendant does not make an offer of proof, he has 
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not adequately preserved the exclusion of witness’ testimony as an issue for 

appellate review).

[13] With respect to the late notice that Culbertson and Carter were to testify on 

Lewis’ behalf at trial, the State alleged bad faith and substantial prejudice. 

However, the State did not move for a continuance, which generally is the 

“appropriate remedy in this situation.”2 Cook v. State, 675 N.E.2d 687, 691 (Ind. 

1996). Regardless, a trial court’s exclusion of a witness’ testimony is subject to 

a harmless error analysis. We will find an error in the exclusion of evidence 

harmless if its probable impact on the factfinder, in light of all of the evidence in 

the case, is sufficiently minor so as not to affect the defendant’s substantial 

rights. Williams, 714 N.E.2d at 652.

[14] In his offer of proof, defense counsel stated that Culbertson, Lewis’ girlfriend, 

would have testified that

[Culbertson] had given some money to [Lewis] to give to [H.D.] 

to pay off possibly some drug dealers, which could explain why 

there was a burglary at [H.D.’s] house, or breaking in. Because 

[H.D.] was afraid of drug dealers. It also explains why [H.D.] 

alleged a rape so she could go to the Julian Center to get away 

from her home when the drug dealers were looking for her.

 

2

 The State did not ask for a continuance either in its written motion to exclude witnesses or in open court at 

the beginning of trial. While Lewis’ defense counsel stated that he was not amenable to a continuance, the 

State had not requested one. And, as of the day of trial, there were three days left before the deadline for a 

speedy trial pursuant to Lewis’ request.
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Tr. at 7 (emphasis added). When pressed by the trial court, defense counsel 

admitted that the only “admissible testimony” was that Culbertson gave Lewis 

“some money to pay for drugs,” and he also admitted that the evidence was 

“tenuous at best.” Id. As the proffered testimony was not relevant to H.D.’s 

allegations of criminal confinement or rape or was otherwise pure speculation,

3

we hold that any error in the exclusion of Culbertson’s testimony was harmless.

[15] In his offer of proof regarding Carter’s proposed testimony, defense counsel 

engaged in the following colloquy with the trial court:

Defense Counsel: I think the main thing she would say is, this all 

started at a party on Oakland Street. [Carter] was at that party. 

She witnessed drug use and alcohol consumption by the alleged 

victim. She’s also aware of a fight between the alleged victim 

and a woman named Megan that happened the day after these 

allegations, which would explain how [H.D.], the alleged victim, 

received bruises, and so she would testify in regard to that.

Court: She saw the fight?

Defense Counsel: I don’t think she saw the fight. But she—

Megan, who is the woman who was in a fight with [H.D.] told 

her about the fight.

Court: So it would be arguably inadmissible?

 

3

 To the extent the proffered testimony would have impacted H.D.’s credibility, the trial court heard 

evidence that H.D. had previously been convicted of theft, and she had admitted to smoking marijuana the 

night of the rape.
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Defense Counsel: And yes I suppose it would be admissible as 

impeachment if I ask [H.D.] about the fight and she denies it.

Id. at 4-5. First, at trial, H.D. admitted to drinking alcohol and smoking 

marijuana at the party the night of the rape, so that part of Carter’s proffered 

testimony would have been cumulative. Second, to the extent Lewis would 

have used Carter’s testimony about the alleged fight between H.D. and Megan 

to impeach H.D.,4 Lewis has not persuaded us that the probable impact of that 

testimony on the factfinder, in light of all of the evidence in the case, affected 

his substantial rights. Any error in the exclusion of Carter’s testimony was 

harmless.

Issue Two: Sufficiency of the Evidence

[16] In reviewing a sufficiency of the evidence claim, we do not reweigh the 

evidence or assess the credibility of the witnesses. Sharp v. State, 42 N.E.3d 512, 

516 (Ind. 2015). Rather, we look to the evidence and reasonable inferences 

drawn therefrom that support the judgment, and we will affirm the convictions 

if there is probative evidence from which a reasonable factfinder could have 

found the defendant guilty beyond a reasonable doubt. Id.

 

4

 If offered to prove the truth of the matter asserted rather than as impeachment evidence, that testimony 

would have been inadmissible hearsay.
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H.D.’s Testimony

[17] Lewis first contends that the State presented insufficient evidence to support his 

convictions because H.D.’s testimony was incredibly dubious. The incredible 

dubiosity rule, which is only applied in limited circumstances, allows a court to 

impinge upon the factfinder’s duty to judge witness credibility 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 

appellant’s guilt. Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015). “‘The 

testimony must be so convoluted and/or contrary to human experience that no 

reasonable person could believe it.’” Id. at 756 (citing Campbell v. State, 732 

N.E.2d 197, 207 (Ind. Ct. App. 2000)).

[18] Lewis asserts that H.D.’s testimony was inherently inconsistent and equivocal,5

and he maintains that she had a motive to lie, “felt coerced,” and recanted her 

 

5

 H.D.’s testimony regarding whether she had consented to sexual intercourse with Lewis at the time of the 

alleged rape was equivocal, as she testified that she alternately consented and withdrew her consent 

throughout the incident. But IMPD Detective Laura Smith testified as follows with regard to H.D.’s 

testimony:

Q: . . . [B]ased on your training and your experience being a sex crimes detective is it 

uncommon for victims who are in a relationship with a person who raped them to be 

reluctant to testify?

A: No, I would say that is common.

Q: Okay. And is it uncommon for victims who are in a relationship with a person who 

raped them to minimize what happened to them later?

A: I’d say that’s pretty common.

Q: Okay. And what are the reasons why a person who is a victim of such a rape, why 

would they do that?

A: Sometimes they worry a lot about like throwing a rock in a pond and watching it 

splash. Sometimes they have children in common, sometimes they have family dynamics, 

sometimes they feel threatened by others who they know in common. They feel—strangely 

they feel guilty afterwards like they are going to hurt them. That’s just the way the body 

heals. And when you have a personal relationship with someone and you care about them 

I think it’s difficult to turn that off and so it’s common for them to minimize.
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testimony after the trial.6 Appellant’s Br. at 19. Thus, Lewis contends that 

H.D.’s testimony was incredibly dubious. But it is well settled that the 

incredible dubiosity rule only applies where there is a complete lack of 

circumstantial evidence. See id. And here, as Lewis acknowledges, there was 

circumstantial evidence to corroborate H.D.’s testimony.

[19] Lewis asserts, however, that “the circumstantial evidence originates solely from 

[H.D.] and is just as unreliable as her testimony.” Appellant’s Br. at 24. And 

Lewis asks that we create an exception to the rule under such circumstances. 

We decline Lewis’ invitation. H.D. testified that Lewis dragged her down a 

hallway, beat her, knocked her unconscious, ripped off her underwear, and 

raped her. H.D. reported the rape and assault to Via-Smith the next day, and 

H.D. underwent medical examinations that revealed injuries consistent with the 

events described by H.D. In addition, officers found H.D.’s ripped underwear 

in her bedroom. Because the circumstantial evidence corroborates H.D.’s 

testimony in this respect, the incredible dubiosity rule does not apply here. 

Moore, 27 N.E.3d at 755. H.D.’s testimony and circumstantial evidence was 

sufficient to support Lewis’ convictions.

 

Tr. at 227-28.

6

 H.D. sent a notarized letter to Lewis’ counsel wherein she recanted her trial testimony, but, as the State 

observes, that letter was sent the same day that Lewis violated a no-contact order and spoke with H.D. by 

telephone. And Lewis does not present cogent argument to explain the letter’s relevance to his contention 

that H.D.’s trial testimony was incredibly dubious.
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Deadly Weapon Enhancement

[20] Finally, Lewis contends that the State presented insufficient evidence to prove 

that he was armed with a deadly weapon during the rape and criminal 

confinement of H.D. Lewis maintains that, without such evidence, those 

convictions must be reduced from Level 1 and Level 3 felonies to Level 3 and 

Level 6 felonies, respectively. We must agree.

[21] To support the enhancement of both the rape and criminal confinement 

convictions as charged, the State was required to prove that Lewis committed 

those offenses while armed with a deadly weapon, namely, a gun. Ind. Code §§ 

35-42-4-1(b), 35-42-3-3(a)(2)(A) (2014). Possession of a gun can be either actual 

or constructive. See Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999). Actual 

possession occurs when a person has direct physical control over the item. Id. 

Constructive possession occurs when somebody has the intent and capability to 

maintain dominion and control over the item. Id.

[22] As the State correctly contends, when a rape conviction is elevated due to the 

use of a deadly weapon, it is not necessary for the State to show that the 

weapon was held on the victim at all times. Potter v. State, 684 N.E.2d 1127, 

1137 (Ind. 1997). In reviewing a sufficiency of the evidence claim concerning 

whether a defendant was armed with a deadly weapon, this court looks to such 

factors as whether there was an initial show of deadly force with the weapon, 

whether the intent was to intimidate the victim with the weapon, and whether 
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the weapon was at least constructively under defendant’s control at all times. 

Id.

[23] On appeal, Lewis maintains that, while the evidence showed that he was armed 

with a gun prior to the criminal confinement and rape, there was no evidence or 

inferences therefrom to show either actual or constructive possession of a gun 

during the commission of those offenses. Indeed, H.D. testified that “the last 

time [she] saw the gun was before the police got there,” and she testified that 

Lewis was “in and out” of the house between the time the police officers were 

there and the criminal confinement and rape occurred. Tr. at 108. There is no 

evidence that H.D. felt threatened by Lewis’ possession of a gun during the 

criminal confinement or rape. H.D. testified only that, when Lewis initially 

displayed the gun to her while they were waiting for the police officers to arrive, 

she understood that “[he] would do anything that he would have to not to get 

locked up.” Id. at 68.

[24] And, notably, at the conclusion of trial, the trial court stated in relevant part as 

follows: 

I’m satisfied that a rape occurred. The challenge on appeal will 

be determining—we need better language and more clear 

language on what armed rape is. There is no doubt that [H.D.] 

knew the defendant routinely carried a gun. She saw it earlier 

that evening/morning. But there was no testimony that she saw it 

after the police arrived, for example. So we need that discussion.

Id. at 270 (emphasis added).
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[25] Lewis and H.D. were downstairs in her house, waiting for the police officers to 

arrive, when Lewis showed her a gun. After the officers left, Lewis was in and 

out of the house for a period of time. Later, when Lewis and H.D. were in an 

upstairs bathroom, Lewis physically assaulted H.D., dragged her down the 

hallway to a bedroom, and raped her. At no time during those events, which 

took place upstairs in H.D.’s house, did H.D. see a gun.7 Thus, while the 

evidence shows an initial show of force by Lewis with the gun and intimidation 

of H.D. with respect to her 9-1-1 call, given Lewis’ movements in and out of the 

house after that and the remoteness in time and location of the crimes from that 

initial show of force, the evidence does not support that Lewis constructively 

possessed a gun during the criminal confinement and rape. See Potter, 684 

N.E.2d at 1137. We hold that, under these circumstances, the evidence is 

insufficient to prove that Lewis committed the criminal confinement or rape 

while armed with a deadly weapon. We remand and instruct the trial court to 

vacate Lewis’ convictions for rape, as a Level 1 felony, and criminal 

confinement, as a Level 3 felony, and enter convictions for rape, as a Level 3 

felony, and criminal confinement, as a Level 6 felony, and resentence Lewis 

accordingly.

[26] Affirmed in part, reversed in part, and remanded with instructions.

 

7

 On redirect examination, the prosecutor asked H.D. whether she remembered “telling Detective Smith that 

[she] saw [Lewis] pick the gun up from between the nightstand.” Tr. at 123. But H.D. responded, “No.” Id. 

And the State did not present any evidence the H.D. had told Detective Smith or anyone else that she had 

seen a gun in the course of either the criminal confinement or the rape.
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Robb, J., and Crone, J., concur.