Jacob L. Robertson v. State of Indiana (mem. dec.), 53A04-1705-CR-1153

On Aug. 23, 2014, A.G., an Indiana University student, met Jacob L. Robertson who led her to an isolated spot, demanded oral sex, and, after she refused, strangled her to unconsciousness and attempted to force oral sex when she awoke. Robertson fled when she threatened to scream.
A.G. had red marks on her neck documented by a friend; Robertson later gave a videotaped statement to police acknowledging contact that night.
The State charged Robertson with Level 1 felony attempted rape, Level 3 felony criminal confinement, Level 5 felony battery resulting in serious bodily injury, and Level 6 felony strangulation; after a bench trial he was convicted of lesser included offenses: Level 3 attempted rape, Level 5 criminal confinement, Class A misdemeanor battery, and Level 6 strangulation.
The trial court sentenced Robertson to an aggregate 8-year sentence (6 years suspended to probation; 85 days executed in jail; remainder on home detention).
On appeal Robertson raised double jeopardy challenges to several convictions, and argued evidentiary errors (admission of text messages, transcript of his videotaped statement) and that certain witness testimony constituted improper vouching/fundamental error.
The Court of Appeals vacated the battery and strangulation convictions for double jeopardy reasons but otherwise affirmed, finding evidentiary issues harmless and no fundamental error from alleged vouching.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Double jeopardy as to criminal confinement, battery, strangulation	State relied on distinct elements for each offense and convictions are proper	Robertson argued same evidentiary facts (strangulation) were used to convict for all three offenses, violating Richardson test	Vacated battery and strangulation convictions as there was a reasonable possibility the same actual evidence (strangulation) supported all three; criminal confinement and attempted rape remain valid
Admissibility of text messages	Texts were relevant to show contact/location and intent	Robertson argued texts should have been excluded	Even if admission erroneous, any error was harmless given corroborating testimony, physical marks, and other evidence
Admission of transcript of videotaped statement	State offered transcript to assist the judge	Robertson objected to transcript	Transcript admission at most cumulative of the videotaped recording; any error harmless because court viewed the DVD without objection
Alleged vouching by witnesses (including detective)	State maintained testimony described observations and investigative steps, not opinions on credibility	Robertson contended witnesses impermissibly vouched and error was fundamental	Testimony did not state belief in victim or opine on truthfulness; no fundamental error shown

Richardson v. State, 717 N.E.2d 32 (Ind. 1999) (establishes the actual-evidence test for whether two offenses are the same for double jeopardy purposes)
Hopkins v. State, 759 N.E.2d 633 (Ind. 2001) (clarifies requirement that defendant show a reasonable possibility that the fact-finder used the same evidentiary facts for multiple convictions)
Lee v. State, 892 N.E.2d 1231 (Ind. 2008) (directs consideration of charging information, instructions, and counsel arguments in identifying the actual evidence used to convict)
Gault v. State, 878 N.E.2d 1260 (Ind. 2007) (discusses harmless error standard for evidentiary rulings)