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Court sua sponte reverses 5 convictions

December 30, 2015

Although a man convicted in a brutal attack on his grandmother lost his arguments on appeal, the Indiana Court of Appeals sua sponte reversed five of his six convictions stemming from the attack for double jeopardy reasons.

On July 31, 2012, Charles Whitham attacked and nearly killed his grandmother, Velma Brown, in her bedroom by choking her to the point she passed out. He was charged with Class A felony attempted murder, Class B felony aggravated battery, Class B felony criminal confinement, two counts of Class C felony battery and one count of Class D felony strangulation.

At his trial, Brown testified as to two other attacks on her by Whitham previous to the instant offense. A state witness, an expert in clinical forensic medicine, testified that based on the photographs of Brown’s injuries, it appears that strangulation had occurred by an object, such as a cord. Also, the state was allowed to introduce evidence of a phone conversation Whitham had with his mother while incarcerated for the latest attack on his grandmother. In the conversation, he acknowledged telling his mother to tell Brown that he would move to Alabama if she didn’t cooperate with prosecutors, noting that she was the state’s “prime witness” and without her “they can’t do sh-t.”

Whitham appealed his convictions in Charles S. Whitham v. State of Indiana, 39A01-1504-CR-134, citing the testimony noted above as requiring reversal of his convictions and 36-year sentence.

The appellate court rejected his arguments on appeal, noting that in part, he was asking the court to reweigh the evidence, which it cannot do. The evidence of the prior attacks on Brown were allowed to show motive for the July 31 attack, Judge Edward Najam wrote. And the phone call with Whitham’s mother showed his consciousness of guilt, which made it relevant.

But, sua sponte, the judges reversed all of Whitham’s convictions except the attempted murder conviction because the remaining convictions are all factually lesser-included offenses of attempted murder. His sentence is not affected by the reversal. The judges remanded for the trial court to vacate the lesser-included offenses.

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