*1 in Norton v. court observed supreme our 535-36 273 Ind. is avail
(1980), defense the abandonment actions, who, own through his one
able to encouragement aid and
withdraws from the effectively detaches
wholly Thus, Evans de had enterprise.
criminal in accordance
stroyed photographs order, not have may agreed she
with the in for her prosecution
faced fear clearly she And in the offense.
volvement years two prosecuted have been
could not the materials as
after the destruction rea yet another This is
discussed above. agreed modifica my view that
son for For these not void ab imitio.
tion was
reasons, I concur. GREENBOAM,
Robert W.
Appellant-Defendant, Indiana, Appellee-Plaintiff.
STATE
No. 46A03-0103-CR-79. of Indiana. Appeals
Court of
April30,2002.
1248 *3 Boyles, Boyles, Valpa- Martz &
Peter L. raiso, IN, Attorney Appellant. Carter, Attorney General Steve Stein, Indiana, At- Kathryn Deputy Jodi General, IN, Attor- torney Indianapolis, neys for Appellee.
OPINION SHARPNACK, Judge. con appeals his
Robert W. Greenboam molesting for four counts of child victions raises class A felonies.1 Greenboam issues, three which we restate as: the trial court abused its 1. Whether by admitting discretion prior moles- regarding Greenboam's victim and an- tation of the current child; other evidence is sufficient 2. Whether for child mo- sustain his convictions lesting; and imposed by the sentence 3. Whether unrea- manifestly the trial court was sonable. remand. reverse and the convic most favorable to
The facts 8, 1998, December Green- follow. On tions with four counts charged boam class A felonies and six molesting as child molesting as class C felon of child counts of his thirteen- the molestation ies2 for charges relate C.G. The year-old daughter, that occurred to incidents of 1997 and November August between 35-42-4-3(b). 35-42-4-3(a). § 2. Ind.Code § Ind.Code family's family at the residence or the cab of while the was seated at the dinner parked semi-truck which was table, Greenboam touched C.G.'s chest family's residence. outside the through clothing. erotch her occasion, C.G., On one Greenboam woke questioned by When Captain George arm, grabbed her her dragged County Ritter of the LaPorte Sheriff's De- to the bathroom. Greenboam told C.G. to partment in November lick her hand and then forced C.G. stated that "he did not touch [C.G.]'s penis. touch his Greenboam also forced breasts or crotch since the last time he did place penis, her mouth on his it in past." Transcript at 399. Green- ejaculated he in her mouth. C.G. then *4 evidently boam was referring to two vomited on him. Greenboam told not C.G. molesting counts of child as class C felo- anyone to tell about the incident. nies to which he pleaded guilty had occasion, On another Greenboam woke August 1996 for molesting C.G. and his C.G. and took her downstairs to the hall- step-daughter, S.H. way near the bathroom. Greenboam told lick C.G. to her hand and forced her to 2, 2000, On jury November found touch penis. his Greenboam also touched guilty Greenboam of four counts of child during C.G.'s chest the incident. After molesting A as class felonies and six ejaculated, get Greenboam he made C.G. counts of child molesting as class C felo- down on her hands and knees. He then nies. The merged trial court the class C "put penis his butt" and [her] moved felony convictions felony with the class A "back and forth." Transeript at 480-431. convictions. The trial then sen- court that it C.G. said hurt and she cried. tenced fifty years Greenboam to in the Greenboam threatened to kill during C.G. Department of Correction for each count this incident. of child molesting as a class A felony. The occasion, On a third Greenboam woke trial court ordered the four sentences to be go C.G. and told her to outside to the cab Thus, consecutively. served truck, of his semi-truck. In the Green- was aggregate sentenced to an year boam instructed C.G. to remove her cloth- sentence. ing. Greenboam removed his clothing, hand, made C.G. lick her and made C.G. L. penis. incident, touch his During this Greenboam touched C.G.'s chest and in- The first issue is whether trial serted court finger vagina. by his into her abused its discretion admit Green- boam warned not ting testimony C.G. to tell or she regarding would go to foster care. He also told that C.G. C.G. and S.H. The she looked like her mother and that C.G. admission or exclusion of evidence ais ery should not because "it should feel matter left to the sound discretion of the good." court, trial and we will only upon reverse an abuse of that Sundling discretion. v. occasion,
On a fourth
again
C.G.
went
State,
992 (Ind.Ct.App.
outside to the cab of the semi-truck.
1997), reh'g denied. An abuse of discre
Greenboam entered the truck and removed
tion
his
occurs where the decision
clothing.
clearly
He told
C.G. to remove her
hand,
clothing,
against
lick her
the logic
and touch
and effect of
pe-
his
the facts
nis.
Greenboam also made
put
her
and cireumstances.
Smith v.
mouth
occasion,
(Ind.2001).
on his penis.
On a fifth
as,
language
proposed
then the
address
must
first
would be ac-
language
waived
alterations
that Greenboam
argument
State's
testimony regarding
your ruling.
ceptable given
objection to
failing
object
con
by
acts
prior bad
waiving any of
Right,
The
not
Court:
was
the evidence
when
temporaneously
objections-
party
appeal,
trial. On
presented
Exactly.
Defense Counsel:
the trial court erred
may not assert
previously
had
raised.
The Court:-he
seeking the exclu
overruling a motion
Although certainly
Transcript at 389-390.
objected
party
unless the
of evidence
sion
clarity,
a model of
this discussion
not
offered.
at the time it was
the evidence
the trial court of
sufficient
to advise
(Ind.
250, 251
v.
Sisk
See,
continuing objections.
2000). However,
approved
have
we
Sullivan,
Evidence of Greenboam's objec- (holding that defendant's 992 n. 3 presented was of C.G. and S.H. tions the issue preserve to tions were sufficient Ritter, testimony Captain through the of defen- consideration where appellate for C.G., object did not and S.H. Greenboam testimony of each to the objected dant regard- testified Captain the time Ritter court over- and the trial at issue witness prior molestation of C.G. ing Greenboam's a continu- objection and noted ruled each However, Captain Ritter's chal- before instance). in each objection following colloquy ing testimony, lenged prior molestations: regarding occurred immediately before State's Similarly, record, language S.H., For the trial court Court: of cross-examination prepared, [defense [prosecutor] that on the admission lengthy argument heard his client and cleared it with of counsel] molestation S.H. prior of Greenboam's that it was just said not ob counsel] did Although [defense and C.G. S.H., way waiving in no okay, but the cross-examination ject during that he made to this objections of his to the State's argument prior lengthy right? very beginning, sufficiently apprised cross-examination objection and correct, of Greenboam's trial court That's those Defense Counsel: See, review. for our the issue your ruling, preserved objections by giving stand effect to Ind. Evi prejudicial pursuant e.g., Martin (Ind.1993) (holding Rule 403.3 Id. at 221. dence pre that error was on purposes of review where served guilty to pleaded during the trial separate two occasions molesting one count of child as a class C admitted, the de before the evidence felony for the molestation of and one to the brought the issue trial fendant molesting felony count of child as a class C and the trial court in court's attention for the molestation of S.H. After the cur- preserved), formed him that the error was filed, charges rent were the State filed a reh'g denied. notice of intention to use the evidence of preserved Because Greenboam prior Greenboam's molestation of C.G. un- objection prior the evidence of his to 404(b). der Ind. Evidence Rule Green- molestations, we must address whether filed a motion in limine seeking boam under Ind. evidence is admissible Evidence exclude evidence. The trial court per- 404(b). 404(b) Ind. Evidence Rule mitted the as evidence of a com- provides that: plan mon or scheme "to par- victimize this crimes, wrongs, Evidence of other or ticular person gratify [Greenboam's] prove acts is not admissible to the char- particular person." sexual desires with this person acter order show action the trial court ruled evi- in conformity may, therewith. It howev- dence of arrest and er, for other purposes, be admissible conviction was inadmissible. motive, intent, proof prepara- such as tion, Evidence of molesta- plan, knowledge, identity, or ab- accident, permitted during tions was first provided sence of mistake or the testi- *6 accused, upon request by mony Captain Captain that the Ritter. the Ritter prosecution in a criminal pro- regarding case shall testified his interview with in vide reasonable notice advance of tri- in which Greenboam "advised al, during or trial if the court excuses that he did not touch [C.G.'s] breasts or shown, pre-trial good notice on cause crotch since the last time he did it general nature of such evidence past." Transeript at 399. it intends to introduce at trial. Next, permitted testify C.G. was to "designed prevent jury The rule is to follows: assessing present guilt from a defendant's Q. Now, [C.G.], there has been some on past propensities." the basis of his previous testimony early that on (Ind. Hicks v. 1997). your [Greenboam] touched breasts determining whether to admit and past, crotch area in the 404(b), evidence under Ind. Evidence Rule having to do with allegations, (1) these the trial court must: determine wheth crimes, er the evidence of other wrongs, or did that fact occur? acts is relevant to a matter at issue other A. Yes.
than the propensity defendant's to commit Q. And where in fact happen? did that act; (2) the charged and pro balance the bative value of the evidence against its A. In the house. issues, misleading jury, by "(all- or or provides Ind. Evidence Rule 403 that relevant, though may be excluded if delay, considerations of undue or needless probative substantially outweighed its value is presentation of cumulative evidence." danger prejudice, of unfair confusion Q. you In the crotch? Where would ok
# ck shock [Greenboam]? touch And, exactly did he Q. what [sic] penis. A. His previous that occasion? you do to on Q. required anything to do you Were my my touched breast A. He had penis? to his him. made me touch crotch and A. Yes. at 420-421. Transcript Q. What? testify to on permitted then SH. was it. up Rub our hands down regarding cross-examination State's trial Transcript at 551-553. The court molestation as follows: previous jury instructed the that the evidence of [SH.,]) ever Q. has [Greenboam]l prior molestations was of prior to you inappropriately touched a common purpose proving fered for the period you've the 1998 time could be plan or scheme and considered to? just testified only purpose. , A. Yes. of the Indiana promulgation Prior when, you me if @. you Could tell Evidence, court supreme Rules of our know? 404(b) adopted Fed. Evidence quite A. I'm not sure when. Lannan v. and, try (Ind.1992). if I were Q. Okay, if I were plan or Although the "common discussed in Lan- you exception believe that scheme" say 1995 would nan, in Lay was revisited exception or incorrect? to be correct (Ind.1995), reh'g A. Correct. denied, Shepard dis where Chief Justice © old in 19957 You were about how and noted that: sented p years old. eight About represents one of those Today's decision opinion rare moments when the lead * ok ck od # result but the concur- announces the me what Q. Okay, you please could tell ap- and the dissent rence announce *7 you happened [Green- with and majority A affirms plicable rule of law. boam|]in 19957 majority the conviction and a different or plan" that "common scheme declares and un- go had to in his room A. We adoption of the Indiana has not survived and and he would touch us dress of Evidence. Rules private him in we'd have to touch places. ode te oskook "us" Q. Okay, you say he would touch Evi of Federal Rule of adoption Our
meaning you? 404(b) (1992), in Lannan v. State dence A. Yes. 1334, Ind., our N.E.2d subse 600 you the term "us" Q. Okay, when use of Indiana Rule quent promulgation you mean you mean-what did did 404(b), represent not Evidence do that term? law of that common mere continuation [C.G.], too. A. old "common Instead of the caselaw. Q. Okay, [Greenboam] where would rule, law now ad plan" our scheme or you?
touch alone. It "plan" mits evidence of is. rule, than old exception our In crotch. narrower part. crotch the A. 1254 State, 797, (Ind.Ct.App. into an all- 654 N.E.2d degenerate to tended
which 1995), abrogated grounds by on other admitting pretty for excuse purpose State, 215, 220-221 misconduct. Hicks v. any prior much old (Ind.1997) (rejecting the Seventh Circuit's C.J., dissenting); see (Shepard, Id. assessing Ind. Evidence four-part test for State, Spires v. also 404(b) claims). re Rule The Thus, we must deter (Ind.Ct.App.1996). garding prior molestations was offered prior conduct mine whether Greenboam's as evidence of Sloan's common scheme or "plan" to his rather was admissible show vice- exploit sexually to plan abuse plan or scheme." than his "common tim. Id. at 800. held that is "[tlhere We that argues evidence no to establish that Sloan's mo solely: proving toward "was directed years was lesting of the victim for six propensity to commit pursuant any preconceived plan. to Nor Brief at 28. charged Appellant's crime." monthly molesting continued could which character, time, argues The State that an years uninterrupted for six constitute place of the offenses were so related transaction." Id. at 801. to to molest plan establish Greenboam's argues The further that all of Similarly, State Pirnat v. the defen charged molesting step dant was with family's at the home the offenses occurred "similarity and the of the offenses estab- son. Pirnat v. abrogated on plan repeatedly (Ind.Ct.App.1993),
lished other [Greenboam's] daughter." grounds by Hicks v. Appellee's molest his Brief disagree. 11. We (Ind.1997) (rejecting 220-221 Seventh four-part assessing Ind. Circuit's test prosecution presented The in this case 404(b) claims). Testimony Evidence that no evidence Greenboam's molestation permitted regarding at trial Pirnat's part preconceived plan. of C.G. was of a molesting conviction for his former prosecution The did not establish simi- stepdaughter. held that: larity between the current molestations only way The to admit this evidence except and the that Pirnat properly would be reason family's molested C.G. activity had a of criminal plan which interpretation home. Such a broad marrying involved women in order plan clearly contemplated exception is molest their children. Both of the mo- 404(b). by Ind. Evidence Rule stepchildren; lestations involved Pirnat's supreme emphasized Our court has however, admitting this evidence re- plan exception "a narrower excep- quires improperly interpreta- an broad tion" plan" than "common scheme or application tion and of the Fed.R.Evid. *8 exception. at Lay, (Shep- 659 N.E.2d 1015 404(b) exceptions. say cannot ard, C.J., However, dissenting). un- even previous Pirnat's conviction was "similar der the broader "common or plan" scheme sufficiently act" evidence connected with analysis, rejected we have the admission of charged crime to enable the to State prior bad acts to in similar those found advantage exeeption. take of this State, this For in example, case. Sloan v. Id. 155-156. though charged even only Sloan was with episode molesting, one of child victim State, Lastly, in Moore v. defendant permitted testify, with charged attempted over Sloan's ob- was criminal devi- jection, officer, regarding multiple for a posing police molestations ate conduct victim, six-year period. Sloan over a on initiating stop Sloan v. traffic
1255
of
prior
of
C.G.
perform
the victim to
Greenboam's
to force
attempting
State, 653
a plan
him. Moore v.
and S.H. does not establish
admissi-
upon
fellatio
1010,
reh'g
(Ind.Ct.App.1995),
1014
404(b).
N.E.2d
ble under Ind. Evidence Rule
trial,
denied,
At his
evi-
denied.
trans.
Moreover, the evidence of Green-
was admit
rape
conviction
prior
denee of
not admissible
prior
boam's
molestations is
404(b).
Rule
under
Ind. Evidence
ted
permissible purpose
other
under
Moore had
prior rape,
In the
at 1015.
404(b)4
case,
Ind.
In this
Evidence
officer,
a traffic
initiated
posed
police
as a
no claim that he had
Greenboam made
victim,
her.
raped
and then
stop on
C.G.,
touched
but without
the intent
held that:
Id. at 1014-1015. We
so,
prior
Had he done
moles
gratify.
imagination
could
By no stretch
tations,
C.G.,
of
could have been
least
have
of Moore's conviction
the evidence
However,
prove
intent.
here
admissible
precon-
as evidence of a
been admitted
denied that he touched
the instant
plan which included
ceived
Hence,
put
altogether.
his intent was
transaction
uninterrupted
An
offenses.
State,
v.
722 N.E.2d
issue.
Johnson
Cf.
committed
that the crimes be
requires
State,
382,
v.
(Ind.Ct.App.2000);
385
Smith
other; here,
conjunction with each
elev-
1152,
(Ind.Ct.App.1997),
678 N.E.2d
1157
the incidents and
separated
en months
denied;
State,
denied,
Day v.
reh'g
trans.
the events took
note as well
we
1,
(Ind.Ct.App.1994),
643 N.E.2d
4-5
trans.
Thus,
counties.
place
separate
State,
855,
denied; Butcher v.
627 N.E.2d
prove
admissible to
evidence was not
(Ind.Ct.App.1994),
reh'g
denied.
859
a common
identity or
to establish
Rather,
prior
the evidence of the
molesta
plan.
or
scheme
only to
tions serves
establish Greenboam's
Id. at 1017.
molesting.
to commit child
propensity
is, likewise,
case,
no
there
evi-
this
State,
230,
See,
v.
e.g., Craun
to molest
preconceived plan
dence of a
Thus,
trial
(Ind.Ct.App.2002).
under the broader "common
C.G. Even
by admitting
its discretion
court abused
analysis, evidence of
plan"
scheme or
prior
moles
the evidence Greenboam's
would be
prior molestations
See, e.g., Sundling,
tation of C.G. and S.H.
Likewise,
the evidence of
inadmissible.
reveals that evidence was only the balance. The evidence of Green- prejudicial impact on likely to have had a boam's molestation of Au C.G. between average juror that it contributed such gust 1997 and November 1998 came from to the verdict. testimony S.H.'s had her previously molested and C.G. undoubt analyze probable impact must We edly gave credibility testimony. to C.G.'s Ritter, C.G., testimony Captain previously have held that "[sluch cases jury. Captain S.H. Ritter testi- upon hinge credibility, often on the child's only that said that "he did fied interjecting allegation another of molesta touch breasts or erotch since [C.G.'s] tion is almost certain to much give more it in past." the last time he did Tran- credibility to the charged allegation." Moreover, seript during open- at 399. (Ind. Werne statement, ing counsel Greenboam stat- Ct.App.2001), Additionally, trans. denied. ed: supreme our court has "cautioned that evi During you the course of that interview dence of misconduct offered to bol now, right folks need to know [Green- key ster a witness's as to the boam] admitted to Detective Ritter that charge, although probative current often he inappropriately had touched [C.G.] on that point, quite prejudicial." is also past. I believe it will show onee this Thompson v. years than gets going past. more two (Ind.1997). But firmly he denied of these aceu- Although the trial court instructed the you being are sations folks asked to jury as to the limited purpose for which preside in this case. over considered, the evidence could be we can Transeript say at 378. Because Greenboam not that the impact improperly of Captain jurors admitted the substance Ritter's admitted upon statements, testimony during opening any significantly Sundling, lessened. See error in of Captain the admission Ritter's N.E.2d at 994. A substantial likelihood testimony regarding erroneously exists that the admitted evi unlikely molestations was to have contrib- dence contributed to the verdict and had uted to impact upon the convictions and was harmless. an substantial *10 have no alternative tion, however, id. We rights. See to cases where a sole erroneously presents inherently witness conclude that S.H.'s contradieto- but testimony regarding ry testimony equivocal is or the admitted coercion, likely a role Green- result of is a played there com- lack of plete Thus, circumstantial evidence of the erroneous boam's conviction. not guilt. of the evidence was harm admission required we are to reverse
less error and
Bowles v.
Seq, e.g., id.
convictions.
(Ind.2000) (citations omitted).
contends that
Greenboam
C.G.'s version
IL.
of events
improbable
is
because Green-
Although we reverse Green-
boam's wife and the other children in the
the errone
upon
boam's convictions based
residence would have
the molesta
noticed
admission of the evidence of his
ous
tions. Greenboam further contends that it
SH., we must
molestations of C.G. and
"highly
an
unlikely
is
adult male can
sufficiency argu
consider Greenboam's
ejaculate and then sodomize another
indi
or not he
ment as it relates to whether
vidual."
29.
Appellant's Brief at
Green-
Jeopardy
The
may be retried.
Double
arguments
boam's
without merit.
are
Our
to the
Clause of the Fifth Amendment
in
supreme court has instructed that the
Constitution, applicable to
United States
dubiosity exception
applicable
credible
is
through
states
the Due Process Clause
in
only
presents
where the sole witness
Amendment, generally
the Fourteenth
herently contradictory testimony.
See
not
a retrial on the same crimes
does
bar
Bowles,
reasonable. convictions. As tributed to Greenboam's for four convictions reverse Greenboam's observes, testimony C.G.'s majority A felo- molesting as class of child counts by molestation of her gave trial. no details for a new and remand nies except that Greenboam remanded. Reversed and made and crotch touched her breast had admitted him.5 her touch J., DARDEN, concurs. Ritter, com much to Detective BAILEY, J., separate dissents with during his the admission upon mented opinion. disagree I opening statement. testimony "tips the balance." that S.H.'s BAILEY, dissenting. Judge assuming at 16. Even Majority Opinion my opinion, it respectfully I dissent. testimony improperly bolstered that S.H.'s alleg- jury upon relied unlikely that the is C.G., error harm of 404(b) to reach its edly improper overwhelming evidence light of the less testimony, verdicts, the victim's light of tes guilt, including C.G.'s of accurately deems majority which detail) (in recent of her five timony precise Majority and "detailed." "wrenching" by molestations Greenboam. at --. Opinion conviction I affirm Greenboam's would admit Indiana Evidence In order to molesting. of child (1) 404(b) evidence, court must the trial is relevant to that the evidence determine other than the defen at issue
a matter charged to commit the propensity
dant's (2)
act, probative value balance effect prejudicial its against
the evidence Evidence Rule 403. to Indiana
pursuant (Ind.
Jackson v. 2000). for an balancing is reviewed This JONES, Appellant-Defendant, Irvin Considering abuse of discretion. v. to abuse the systematic plan Indiana, home, Appellee-Plaintiff. clearly estab STATE children female evidence, I cannot lished the State's No. 49A02-0108-CR-531. has demonstrat that Greenboam conclude Appeals trial court's discretion. of Indiana. an Court ed abuse Moreover, only if compelled reversal 30, 2002. April a whole discloses that erro the record as likely to evidence was neously admitted impact upon the prejudicial
have had a juror, thereby contrib average
mind of the Bonner v.
uting to the verdict. (Ind.1995). fully I con
N.E.2d majority's conclusion that
cur with the testimony of Captain Ritter's
C.G.'s and Moreover, prior bad acts are a defendant's Hicks and the victim. between the defendant relationship (Ind.1997). usually admissible to show the