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A man whose rape trial included “surprise” evidence and an amendment to the charging information after deliberations had begun failed to convince the Court of Appeals of Indiana that his three felony convictions should be overturned.
The man, Michael Morales, was married to K.M., who asked for a divorce in February 2021. Morales moved out of their apartment and told K.M. he would grant her a divorce.
But one day later, Morales went to the apartment while K.M. was at work, broke a picture frame and tore a family photo into pieces. Also on that day, Morales went to K.M.’s workplace and accused her of having an affair.
A few days later, Todd Kenton, a friend of K.M.’s from work, came to the apartment with an AR-15 rifle to show her how to use it for protection. Morales knocked on the apartment door while Kenton was there, so K.M. tried to hide him.
But when she opened the door, Morales announced that he had heard Kenton. He found Kenton in the bedroom and ordered him to leave, which Kenton did — leaving the rifle behind.
Morales grabbed the weapon and began threatening suicide. He told K.M. he might want to live if she performed oral sex, and K.M. agreed to do so, believing he might otherwise harm himself.
Later, Morales ordered K.M. to undress, and she again complied, still afraid of what he might do. Then, while holding the gun, he ordered her to have sex with him.
After, K.M. was able to take control of the gun’s magazine, and she tried to flee the apartment. But Morales blocked the door and grabbed the magazine, then placed the gun to his head.
He pulled the trigger multiple times, but the rifle never fired.
Finally giving up, Morales ordered K.M. to wipe the fingerprints off the gun. He then began going in and out of the apartment as he packed his things, and K.M. was able to lock him out and call the police.
Police responded and arrested Morales, who was in the apartment’s parking lot with a flat tire. Police seized the rifle and verified that there was no ammunition in the chamber or barrel.
Morales was charged and convicted on several felony counts, and the Porter Superior Court entered judgment on two counts of Level 1 felony rape and one count of Level 3 felony criminal confinement. He was sentenced to an aggregate of 30 years, with five years suspended.
On appeal, Morales first argued there was insufficient evidence to support his rape convictions.
But the Court of Appeals disagreed in Michael Morales v. State of Indiana, 23A-CR-522.
“Contrary to Morales’ suggestion, the fact that he did not actually attempt to harm himself until after the rapes does not support an inference that his threat was not imminent,” Judge Terry Crone wrote. “If anything, that evidence supports K.M.’s perception that Morales’s threat of self-harm was not hollow. The state presented sufficient evidence to support the convictions.”
Morales next argued that the trial court erred in refusing his proposed jury instruction defining the term “threat” based on a portion of the intimidation statute, Indiana Code § 35-45-2-1.
“The trial court refused the proposed instruction after determining that the definition of threat in the intimidation statute did not apply in the context of rape,” Crone wrote. “We agree.”
Nor did the trial court err in denying Morales’ motion for a mistrial, the COA continued. That issue focused on the rifle.
“The AR-15 rifle that Morales possessed during the sexual assaults was discussed and handled by two witnesses, Sergeant (Robert) Nichols and Kenton, during cross-examination by the defense. Sergeant Nichols handled the weapon and explained how he took possession of it at the scene and that a round of ammunition was not found in the chamber or barrel,” Crone wrote. “The second witness, Kenton, was asked by defense counsel to handle the weapon and verify that it was empty of ammunition, which was part of the defense theory that the weapon was not actually loaded during the assaults. When Kenton handled the weapon, a round fell out of the weapon onto the ground.”
The defense moved for a mistrial, but the state argued Morales had not shown that he was prejudiced by the ammunition falling out, so nothing more than an admonishment was needed.
The trial court denied a mistrial but did allow Nichols to be recalled. Morales never renewed his mistrial motion.
Affirming the denial, the COA held, “… K.M. repeatedly admitted that she was unsure whether the rifle was loaded during the sexual assaults, and based on both the State’s and the defense’s theories of the case, the actual status of the weapon when police recovered it is not germane to the issue of the presence or absence of ‘forceful compulsion’ at the time of the assaults. Moreover, Morales did not object to the curative measures permitted by the trial court to explain this surprise evidence.”
Finally, the appellate court rejected Morales’ argument that the trial court abused its discretion in allowing the state to amend the charging information during deliberations.
According to the appellate court, the state informed the trial court just prior to closing arguments that the term “sexual intercourse” was inadvertently removed from Count 1 and replaced with “other sexual conduct,” meaning both counts alleged rape based only on other sexual conduct.
The trial court initially denied the state’s request to amend the charging information, but after the jury sent a question about the difference in the two rape counts, the court reversed its prior ruling.
“As noted by the trial court, the evidence presented by both parties indicated that Morales engaged in two sexual acts with K.M., oral sex and sexual intercourse,” Crone wrote. “The issue before the jury was not whether those sexual acts occurred, but whether those acts constituted rape, that is, whether K.M. was compelled by force or the imminent threat of force.
“The amendment of the information to clarify for the jury which count of rape was intended to apply to the oral sex and which count was intended to apply to the sexual intercourse in no way impaired Morales’s defense and had no effect on his ability to present evidence on the existence vel non of force,” Crone continued. “Thus, the amendment to the charging information was one of form, not substance, did not prejudice Morales’s substantial rights, and was a reasonable response by the trial court to address the jury’s confusion.
“… As for the trial court’s revision of the final instructions to provide the amended charging language, and it decision to reread to the jury all final instructions, Morales consented to the procedure,” Crone concluded. “Accordingly, we need not review the trial court’s decision in this regard.”
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