Herbert Lee Brown, III v. State of Indiana (mem. dec.)
71A04-1603-CR-675
| Ind. Ct. App. | Oct 14, 2016Background
- On Jan. 1, 2015 Herbert Brown robbed a South Bend 7‑Eleven at gunpoint, then entered a minivan containing C.J., pointed a gun at her, drove away, and forced oral sex and intercourse. He urinated in her mouth during the assault.
- Charged Jan. 16, 2015 with three counts of rape, four counts of robbery, and criminal confinement; two robbery counts and confinement later dismissed.
- Pretrial, State moved to exclude evidence of C.J.’s prior sexual history; trial court partially granted the motion and excluded a DNA thigh‑swab result.
- A jury instruction packet mistakenly included a dismissed criminal confinement count; the court discovered the error before trial, excused the page, asked jurors if they could remain impartial, and denied Brown’s mistrial motion.
- Jury convicted Brown of two counts of Level 1 rape and two counts of Level 3 robbery; trial court sentenced him to concurrent 40‑year terms for rape and concurrent 16‑year terms for robbery, ordered consecutively for a 56‑year aggregate term.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of victim’s prior sexual history (Rule 412) | State: evidence of other sexual behavior is generally inadmissible; exceptions must be strictly followed | Brown: thigh‑swab DNA showing non‑Brown DNA should be admissible to impeach or show another source | Exclusion proper: evidence prohibited by Rule 412(a); Brown failed to follow 412(c) motion procedure and exceptions did not apply |
| Motion for mistrial after dismissed charge appeared in jury packet | State: court cured any potential prejudice by removing page, explaining error, re‑reading instructions, and asking jurors about impartiality | Brown: inclusion of dismissed criminal confinement charge prejudiced jury and warranted mistrial | Denial affirmed: admonitions and jurors’ assurances cured error; mistrial not required |
| Sufficiency of evidence for rape convictions | State: C.J.’s detailed testimony plus corroborating witnesses and Brown’s admissions suffice | Brown: challenges adequacy of evidence supporting rape convictions | Convictions affirmed: C.J.’s testimony alone sufficient and corroborated; reasonable jury could find guilt beyond a reasonable doubt |
| Appropriateness of 56‑year aggregate sentence (Ind. App. R. 7(B)) | State: sentence within statutory ranges and supported by aggravators (multiple victims, probation status, egregious conduct) | Brown: sentence is excessive given nature of offenses and his character | Sentence not inappropriate: nature of crimes (planned robberies, violent sexual assaults) and Brown’s criminal history justify aggregate 56 years |
Key Cases Cited
- Johnson v. State, 6 N.E.3d 491 (Ind. Ct. App. 2014) (standard for appellate review of evidentiary rulings)
- Gray v. State, 957 N.E.2d 171 (Ind. 2011) (standard for sufficiency review)
- Bailey v. State, 907 N.E.2d 1003 (Ind. 2009) (affirming sufficiency standard)
- Carter v. State, 44 N.E.3d 47 (Ind. Ct. App. 2015) (victim’s testimony alone can support conviction)
- Mickens v. State, 742 N.E.2d 927 (Ind. 2001) (mistrial is an extreme remedy; defendant must show grave peril)
- Isom v. State, 31 N.E.3d 469 (Ind. 2015) (presumption jurors follow court instructions)
- Lucio v. State, 907 N.E.2d 1008 (Ind. 2009) (admonition cures error)
- Strowmatt v. State, 686 N.E.2d 154 (Ind. Ct. App. 1997) (similar prior instance where misstatement before trial did not require mistrial)
- Knapp v. State, 9 N.E.3d 1274 (Ind. 2014) (appellate review under App. R. 7(B) should give deference to trial court)
- Chambers v. State, 989 N.E.2d 1257 (Ind. 2013) (role of appellate review in sentencing under Rule 7(B))