Dennis M. Toops v. State of Indiana

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.

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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

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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”

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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.

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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

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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:

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(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

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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

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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

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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.

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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

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"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

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.