ATTORNEY FOR APPELLANT

Belle T. Choate     

Indianapolis, Indiana  

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett

Attorney General of Indiana

Janet Brown Mallett

Deputy Attorney General

Indianapolis, Indiana  

	IN THE

	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

BOEHM, Justice.

	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:

	(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.

Factual and Procedural Background

	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 thethe 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).1  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 notes 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 does not violate Miller’s due

process rightsis 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), but,and d 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 iwas no error in sentencing.

Conclusion

	The judgment of the trial court is affirmed.

	SHEPARD, C.J., and DICKSON, SULLIVAN, and SELBY, JJ., concur.