Date: 05-06-2022

Case Style:

Dennis M. Toops v. State of Indiana

Case Number: 21A-CR-1348

Judge: TEdward W. Najam, Jr

Court:

COURT OF APPEALS OF INDIANA

On appeal from The Cass Circuit Court

Plaintiff's Attorney:

Theodore E. Rokita
Attorney General of Indiana
Evan Matthew Comer
Deputy Attorney General

Defendant's Attorney:

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Indianapolis, IN - Criminal Defense lawyer represented defendant with appealing his convictions for attempted rape charges.

In the late evening of March 17, 2019, K.J. drove to Toops’ house. Toops was
K.J.’s boyfriend, and Toops’ minor daughter, A.T., was asleep in her upstairs
room when K.J. arrived. When K.J. entered the house, she observed that Toops
was “drunk” and “slurring his words” and “[r]anting about things.” Tr. Vol. 2
at 27.
[4] As the evening wore on, Toops “progressively just kept getting more angry.” Id.
at 28. K.J. said she “was going to leave,” and Toops responded, “what are
[you] going to do, drive up around the corner and go to Ronnie Lowe’s house?”
Id. at 29. Ronnie Lowe was a mutual male friend. Toops had accused K.J. of
infidelity in the past. To prove she was not cheating on him, K.J. stayed with
Toops. Sometime thereafter, the two went to bed and had consensual sex.
[5] Later, K.J. awoke in Toops’ bed to Toops “trying to shove [her] head down
onto his penis.” Id. at 34. K.J. said, “[p]lease don’t do this” and “please stop.”
Id. at 35. Toops then “spun [K.J.] around to where he was standing up” by the
bed and “started slapping” K.J. Id. She repeated her request that he “please
409, 414-15 (Ind. Ct. App. 2013). We surmise—as does the State, see Appellee’s Br. at 6—that the trial court’s
purported “merge[r]” here was based on double jeopardy concerns as the court did not enter any sentence at
all on the domestic battery conviction. We therefore remand this issue to the trial court with instructions that
it vacate Toops’ conviction for domestic battery, as a Level 6 felony.
2 Toops has filed three versions of an Appellant’s Appendix, yet he has not specified in his briefing which
version he relies on. Unless otherwise stated in this decision, our references are to his last-filed (February
2022) version.
Court of Appeals of Indiana | Memorandum Decision 21A-CR-1348 | May 6, 2022 Page 4 of 15
stop.” Id. at 36. Toops “hit [her] again” and tried to get on top of her, but K.J.
“rolled off the end of the bed to get away from him.” Id. at 37.
[6] K.J. tried to put on her clothes, but Toops “lunged across the bed at” her, and
she “ran to the front door and . . . tried to get out.” Id. But she was able to open
the front door “[o]nly part way” before Toops came up behind her and
“slammed the door closed so [she] couldn’t get out.” Id. at 37-38. Toops then
turned K.J. around to face him. He hit her “all over [her] body,” both slapping
her and “kneeing” her. Id. at 38-39. K.J. again asked Toops to “please stop.
Your daughter’s upstairs.” Id. at 40. Toops did not stop, however. K.J. twice
yelled for A.T., but A.T. did not respond. Id.
[7] After K.J. yelled for A.T., Toops “punched [K.J.] in [her] face.” Id. at 42. The
punch “broke [K.J.’s] nose,” which “started bleeding instantly.” Id. Toops then
started “flipping [K.J.] off” and saying, “f*** you, what are [you] going to do,
go to Ronnie’s house[?]” Id. The “whole time that he’s doing these things,”
Toops is also “slapping [K.J.],” “hitting” her, “kneeing” her, “biting” her, and
“choking” her. Id.
[8] Meanwhile, K.J. was trying to catch the blood from her nose in her hands, and
Toops eventually told her to go to the bathroom. There, Toops continued
verbally and physically attacking K.J. He punched her in the stomach and
“knocked the wind out of [her].” Id. He grabbed her by the throat and held her
“against the wall.” Id. at 46. When he let her go, she “ran into the laundry
room,” which was adjacent to the bathroom. Id. at 47. Toops followed her, and
Court of Appeals of Indiana | Memorandum Decision 21A-CR-1348 | May 6, 2022 Page 5 of 15
she ran back into the bathroom and grabbed a hold of the towel rack. Toops
grabbed K.J. by her hair and pulled her backwards, and as she was falling back
the towel rack came off the wall and K.J. swung it backwards over her head at
Toops. He then knocked her down on the floor on her hands and knees and
placed “his weight on [her] so [she] can’t get up.” Id. at 49. Toops then
“shove[d K.J.’s] head in the floor” and attempted to penetrate her anus with his
penis. K.J. said, “please don’t. Out of everything you’ve done tonight, please
don’t do this.” Id. at 51. Toops responded, “you’ll either get this . . . or I’m
going to punch you in the face.” Id. K.J. then said, “you could at least go to the
bedroom and get the lube so it doesn’t hurt.” Id. at 52. Toops then left K.J. and
went to the bedroom. Once he left K.J. alone, she fled the house, got to her car,
and drove to the Cass County Sheriff’s Department. Id. at 54.
[9] At the Sheriff’s Department, Deputy Nicholas Bowyer observed K.J. in the
parking lot in her vehicle nearly completely naked. He observed markings
around her neck and red spots in her eyes, which he believed to be evidence of
possible strangulation. Deputy Bowyer obtained clothing for K.J. and had her
transported to the emergency room at Logansport Memorial Hospital. There,
Dr. Dori Ditty examined K.J. and observed “dried blood all over her face, on
her extremities. She had evidence of bruising, swelling to her eyelid, swelling to
her nose, deformity to her nose.” Id. at 128. Dr. Ditty ordered a CAT scan, the
results of which showed that K.J. had a broken nose. A test of DNA collected
from K.J.’s anus revealed the presence of male DNA, and a test of DNA
collected off of her back revealed DNA that was “17 billion times more likely”
Court of Appeals of Indiana | Memorandum Decision 21A-CR-1348 | May 6, 2022 Page 6 of 15
to have come from K.J. and Toops than from K.J. and another person. Id. at
177.
[10] On March 18, the State charged Toops with rape, as a Level 3 felony; criminal
confinement, as a Level 3 felony; and domestic battery, as a Level 5 felony. The
State later amended the rape allegation to attempted rape, as a Level 1 felony.
[11] In May 2021, the court held Toops’ jury trial. K.J. testified against him. Deputy
Bowyer and Dr. Ditty also testified. A.T. testified that she did not hear anything
unusual on the night in question. And Toops testified that he and K.J. had had
consensual sex and then a disagreement that got physical before the two agreed
to “get intimate again,” at which point K.J. left. Tr. Vol. 3 at 38. At the
conclusion of the trial, the jury found Toops guilty of attempted rape, as a Level
3 felony; criminal confinement, as a Level 4 felony; and domestic battery, as a
Level 6 felony.
[12] Following a sentencing hearing, the trial court found “the harm suffered by the
victim,” that the evidence was “greater than the elements necessary to prove the
commission of the offense,” Toops’ criminal history, and the commission of the
offense in the presence of a minor as aggravating circumstances. Id. at 162. As
mitigating circumstances, the court found that Toops was “likely to respond
affirmatively to probation,” that Toops’ imprisonment would result in a
hardship to A.T., Toops’ “family history,” and “the remoteness of the prior
history.” Id. The court then sentenced Toops to an aggregate term of fourteen
years, with two years suspended to probation. This appeal ensued.
Court of Appeals of Indiana | Memorandum Decision 21A-CR-1348 | May 6, 2022 Page 7 of 15
Discussion and Decision
Issue One: Sufficiency of the Evidence for Attempted Rape
[13] On appeal, Toops first asserts that the State failed to present sufficient evidence
that he committed attempted rape, as a Level 3 felony. For sufficiency-of-theevidence challenges, we consider only probative evidence and reasonable
inferences therefrom that support the judgment of the trier of fact. Hall v. State,
177 N.E.3d 1183, 1191 (Ind. 2021). We will neither reweigh evidence nor judge
witness credibility. Id. We will affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt.
Id. To show that Toops committed attempted rape, as a Level 3 felony, the
State was required to show beyond a reasonable doubt that Toops knowingly or
intentionally attempted to cause K.J. to perform or submit to other sexual
conduct (i.e., oral or anal sex) when K.J. was compelled by force or imminent
threat of force. See Ind. Code § 35-42-4-1(a)(1) (2018).
[14] According to Toops, “there was an abundance of causes for reasonable doubt.”
Appellant’s Br. at 7. In particular, Toops relies on substantial excerpts from his
own trial testimony as well as A.T.’s testimony that she heard nothing unusual
on the night in question. Emphasizing his own evidence, Toops then asserts
that the jury’s conclusions to the contrary are based only on speculation.
[15] Toops’ argument on appeal is merely a request for this Court to reweigh the
evidence, which we will not do. K.J. testified at length and in detail about
Toops’ physical and verbal attack on her that night. Her version of events was
Court of Appeals of Indiana | Memorandum Decision 21A-CR-1348 | May 6, 2022 Page 8 of 15
corroborated at least in part by the testimony of Deputy Bowyer and the
testimony of Dr. Ditty. Her testimony was also corroborated by a test of DNA
collected from K.J.’s anus and back shortly after the attempted rape; the test of
the anal swab showed the presence of male DNA, and the test of the back swab
showed a substantial probability of Toops’ DNA. Further, it is well established
that “the uncorroborated testimony of the victim is sufficient to sustain a
conviction.” Smith v. State, 163 N.E.3d 925, 929 (Ind. Ct. App. 2021).
[16] The State presented sufficient evidence to support Toops’ conviction for Level 3
felony attempted rape, and we will not reweigh that evidence. We affirm his
conviction.
Issue Two: Level 4 Felony Criminal Confinement
[17] Toops also asserts that the State presented insufficient evidence to support his
conviction for Level 4 felony criminal confinement. We agree with Toops that
this conviction must be reversed, although we cannot agree with Toops’
reasoning.
[18] Here, the date of the charged offenses is March 17 or 18, 2019. At that time,
Indiana Code section 35-42-3-3 (2018) provided in relevant part as follows:
(a) A person who knowingly or intentionally confines another
person without the other person’s consent commits criminal
confinement. Except as provided in subsection (b), the offense of
criminal confinement is a Level 6 felony.
(b) The offense of criminal confinement defined in subsection (a)
is:
Court of Appeals of Indiana | Memorandum Decision 21A-CR-1348 | May 6, 2022 Page 9 of 15
(1) a Level 5 felony if:
(A) the person confined is less than fourteen (14)
years of age and is not the confining person’s child;
(B) it is committed by using a vehicle; or
(C) it results in bodily injury to a person other than the
confining person;
(2) a Level 3 felony if it:
(A) is committed while armed with a deadly
weapon;
(B) results in serious bodily injury to a person other than
the confining person; or
(C) is committed on an aircraft . . . .
(Emphases added.) The State charged Toops for Level 3 felony criminal
confinement under section 35-42-3-3(b)(2)(B). See Appellant’s App. Vol. 2 at 30,
168.
[19] Following Toops’ commission of the offenses, effective July 1, 2019, our
General Assembly amended section 35-42-3-3. Pub. L. 40-2019 § 11 (eff. July 1,
2019) (“the 2019 amendment”). The 2019 amendment added a Level 4 felony
offense that did not previously exist, namely, that criminal confinement is
elevated from a Level 6 felony to “a Level 4 felony if it results in moderate
Court of Appeals of Indiana | Memorandum Decision 21A-CR-1348 | May 6, 2022 Page 10 of 15
bodily injury to a person other than the confining person.” Ind. Code § 35-42-3-
3(b)(2) (2019).
[20] The jury found Toops not guilty of the charged Level 3 felony but instead guilty
of the Level 4 felony created by the 2019 amendment. Although not challenged
by Toops on appeal, “[i]t is beyond dispute that penal statutes in effect at the
time of an offense are controlling.” M.H. v. State, ___ N.E.3d ___, 2022 WL
729088, at *4 (Ind. Ct. App. Mar. 11, 2022) (citing Smith v. State, 675 N.E.2d
693, 695 (Ind. 1996) (“One of our well established rules of criminal law is that
the controlling law is that which is in effect at the time the crime is
committed.”)), trans. pending. To retroactively apply the 2019 amendment here
“would imperil [the defendant’s] right to be free from ex post facto laws.” Id.; see
also Bouie v. City of Columbia, 378 U.S. 347, 353-54 (1964). Accordingly, Toops’
conviction for Level 4 felony criminal confinement, an offense that only existed
after the date of Toops’ crimes, cannot stand.
[21] Looking instead to the statute in effect at the time of Toops’ crimes, it is clear
that the jury rejected the State’s evidence of the “serious bodily injury” required
for the charged Level 3 felony under section 35-42-3-3(b)(2)(B) (2018). But it is
equally clear that the jury found as a matter of fact that the State presented
some evidence of bodily injury, as the jury could not have found Toops guilty
of the erroneous Level 4 felony otherwise. See I.C. § 35-42-3-3(b)(2) (2019)
(requiring the evidence to show “moderate bodily injury”). Thus, we conclude
that the facts found by the jury, as applied to the statute in effect at the time of
Toops offenses, requires reducing his conviction from the charged Level 3
Court of Appeals of Indiana | Memorandum Decision 21A-CR-1348 | May 6, 2022 Page 11 of 15
felony to a Level 5 felony. Again, under the proper version of the statute, the
offense of criminal confinement is a Level 5 felony, as relevant here, if the
offense “results in bodily injury to a person other than the confining person.”
I.C. § 35-42-3-3(b)(1)(C) (2018). And the Level 5 felony offense is plainly a
lesser-included offense to the charged Level 3 felony offense on these facts.
[22] Thus, we now turn to Toops’ sufficiency argument for this issue. In his
argument, Toops asserts that the State failed to show that K.J.’s injuries
occurred as “a result of an act in furtherance of criminal confinement.”
Appellant’s Br. at 15. The State concedes that it was “required to show . . . that
the injuries K.J. sustained” were “in furtherance of her confinement or occurred
during the course . . . thereof” but asserts that it met that burden. Appellee’s Br.
at 24-25. We agree with the State.
[23] K.J. testified that, as she initially attempted to flee Toops’ residence out of the
front door, he came up behind her, slammed the door shut, turned her around,
and held her against the door by her throat. He then proceeded to repeatedly
strike her, both with his hand and with his knee, and he punched her in the
face, breaking her nose. Although additional evidence might also have
supported Level 5 felony criminal confinement, we agree with the State that
that evidence by itself was sufficient to prove the offense.
[24] In sum, we reverse Toops’ conviction for Level 4 felony criminal confinement,
as that offense did not exist at the time of Toops’ crimes. Considering the jury’s
verdict as applied to the criminal confinement statute in effect at the time of the
Court of Appeals of Indiana | Memorandum Decision 21A-CR-1348 | May 6, 2022 Page 12 of 15
offenses, we conclude that the jury’s verdict must be reduced to a Level 5 felony
offense. And considering Toops’ sufficiency argument for the Level 5 felony
offense, we conclude that the State presented sufficient evidence to support that
conviction.
Issue Three: Sentencing
[25] Last, Toops asserts that the trial court abused its discretion when it sentenced
him.3 We initially note that the trial court ordered Toops’ sentence for his
criminal confinement conviction to run concurrent with his sentence for
attempted rape. Therefore, our reduction of his criminal confinement
conviction to a Level 5 felony in Issue Two above does not affect Toops’
aggregate sentence or his argument that the trial court abused its discretion
when it sentenced him.
[26] As our Supreme Court has made clear:
We have long held that a trial judge’s sentencing decisions are
reviewed under an abuse of discretion standard. An abuse of
discretion occurs if the decision is clearly against the logic and
effect of the facts and circumstances before the court, or the
reasonable, probable, and actual deductions to be drawn
therefrom.
3 Although Toops includes language from our case law applying Indiana Appellate Rule 7(B) in this part of
his brief, the substance of his argument on appeal is that the trial court abused its discretion when it sentenced
him, not that his sentence is inappropriate under Rule 7(B). We limit our review of his argument on appeal
accordingly.
Court of Appeals of Indiana | Memorandum Decision 21A-CR-1348 | May 6, 2022 Page 13 of 15
McCain v. State, 148 N.E.3d 977, 981 (Ind. 2020) (cleaned up). Further:
One way in which a trial court may abuse its discretion is failing
to enter a sentencing statement at all. Other examples include
entering a sentencing statement that explains reasons for
imposing a sentence—including a finding of aggravating and
mitigating factors if any—but the record does not support the
reasons, or the sentencing statement omits reasons that are
clearly supported by the record and advanced for consideration,
or the reasons given are improper as a matter of law.
Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind.), clarified on other grounds on
reh’g, 875 N.E.2d 218 (2017).
[27] A person who commits a Level 3 felony shall be imprisoned for a fixed term
between six and twenty years, with an advisory sentence of ten years. I.C. § 35-
50-2-5 (2018). Here, the trial court sentenced Toops to fourteen years on his
Level 3 felony conviction, with two years suspended to probation.
[28] Toops first asserts that the trial court abused its discretion when it sentenced
him because the court “did not state reasons why each [of the identified]
factor[s] was aggravating or mitigating[,] nor did the trial court balance the
factors to determine whether the aggravating factors” outweighed the mitigating
factors. Appellant’s Br. at 25. We understand Toops’ argument here to be that
the trial court’s sentencing statement was insufficiently detailed. And we cannot
agree.
[29] The trial court must provide a “reasonably detailed recitation of [its] reasons for
imposing a particular sentence.” Anglemyer, 868 N.E.2d at 490. Such recitations
Court of Appeals of Indiana | Memorandum Decision 21A-CR-1348 | May 6, 2022 Page 14 of 15
“facilitate meaningful appellate review” of the court’s judgment. Buchanan v.
State, 767 N.E.2d 967, 971 (Ind. 2002). Here, the trial court expressly identified
both aggravating circumstances and mitigating circumstances. It further entered
a sentence above the advisory sentence, making clear by implication that it
found the aggravators to outweigh the mitigators. Thus, it is reasonably clear to
this Court why the trial court entered the sentence that it entered, and Toops’
argument that the trial court’s sentencing statement was insufficiently detailed
must fail.
[30] Still, Toops also argues that the mitigating circumstances of the remoteness of
his criminal history and his law-abiding life since his last conviction and the
hardship that his incarceration will have on his daughter “weigh[] in favor of
Toops.” Appellant’s Br. at 26. The trial court considered these mitigating
circumstances and weighed them, and the weight assigned to them by the trial
court is not subject to appellate review. Anglemyer, 868 N.E.2d at 491.
[31] Toops also argues that his childhood was full of conflict between his parents,
and he himself has succumbed to alcoholism and sought treatment “for the
emotional scars of his childhood.” Appellant’s Br. at 30. Insofar as Toops’
argument here is that the trial court abused its discretion by not considering
these purported mitigating circumstances, we are not persuaded that these
proffered mitigators were significant and required the trial court to account for
them. See Anglemyer, 868 N.E.2d at 490-91. Thus, we cannot say the trial court
abused its discretion when it sentenced Toops to fourteen years with two years
suspended

Outcome: In sum, we affirm Toops’ conviction for Level 3 felony attempted rape and his
sentence on that conviction. However, we reverse his conviction for Level 4
felony criminal confinement and remand with instructions for the trial court to
reduce that conviction to Level 5 felony criminal confinement and resentence
Toops on that conviction, with Toops’ revised sentence on the Level 5 felony
conviction to run concurrently with his sentence for the Level 3 felony
attempted rape conviction. We also instruct the trial court on remand to vacate
Toops’ conviction for Level 6 felony domestic battery.

Affirmed in part, reversed in part, and remanded with instructions.

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