Amjab Salhab v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: August 10, 2020
• Docket: 19A-CR-3059
• Status: Published

Opinion

FILED Aug 10 2020, 10:10 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Daniel I. Hageman Attorney General of Indiana Indianapolis, Indiana Tina L. Mann Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Amjab Salhab, August 10, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-3059 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Sheila A. Carlisle, Appellee-Plaintiff. Judge The Honorable Stanley E. Kroh, Magistrate Trial Court Cause No. 49G03-1811-F3-38212

Riley, Judge.

Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020 Page 1 of 13 STATEMENT OF THE CASE [1] Appellant-Defendant, Amjad Salhab (Salhab), appeals following his conviction

for three Counts of rape, Level 3 felonies, Ind. Code § 35-42-4-1(a)(1); and child

seduction by a guardian, a Level 5 felony, I.C. § 35-42-4-7(m).

[2] We affirm in part, reverse in part, and remand for further proceedings.

ISSUES [3] Salhab presents this court with three issues, which we restate as:

(1) Whether his conviction for rape by digital penetration violates the continuous crime doctrine;

(2) Whether the trial court abused its discretion when it imposed consecutive sentences for his rape convictions; and

(3) Whether a condition of his probation is unconstitutionally overbroad.

FACTS AND PROCEDURAL HISTORY [4] Salhab was a friend of the father of seventeen-year-old Z.R. Around October

26, 2018, Salhab became Z.R.’s de facto guardian when she came to live in the

home Salhab shared with his wife in Brownsburg, Indiana. Salhab was

employed delivering medicines to area facilities for senior citizens in his van.

Salhab’s wife worked at a nursing home facility. Salhab and his wife both

worked night shifts.

Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020 Page 2 of 13 [5] On October 30, 2018, Salhab left for work around 9:30 p.m. but returned home

shortly thereafter and asked Z.R. if she wanted to get something to eat and ride

along with him while he made his deliveries. Z.R. agreed to go. Salhab’s first

delivery was at his wife’s workplace in Brownsburg. Salhab directed Z.R. to

duck down so that his wife would not see that Z.R. was with him, and Z.R.

complied.

[6] Salhab then drove to his next delivery at an assisted living facility in the 2800

block of South Churchman Avenue in Marion County, Indiana. During the

drive, Salhab asked Z.R. if she would have sex with him, and Z.R. refused.

Upon arrival at the assisted living facility, Salhab drove to the back of the

building and parked his van. Salhab climbed into the seat behind the driver’s

seat and told Z.R. to join him. Z.R. complied, whereupon Salhab pulled down

her pants and attempted to insert his penis in Z.R.’s vagina even though Z.R.

repeatedly told Salhab not to do so.

[7] Salhab also touched Z.R.’s chest with his hands, and he bit her chest and lips.

Salhab told Z.R. to pull her pants up, which she did. Salhab moved Z.R. to the

backseat passenger side of the van, where he forced her head and mouth onto

his penis. Salhab then turned Z.R. on her stomach and rubbed his penis against

her back above her buttocks until he ejaculated. Salhab gave Z.R. a napkin to

clean herself and then exited the van to make his scheduled delivery inside the

assisted living facility.

Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020 Page 3 of 13 [8] As soon as Salhab left the van, Z.R. called 911 and reported that she had been

raped. When Salhab returned to the van after making his delivery, he was

taken into custody by responding officers. Z.R. provided a statement to

investigators who noted that her lip was so swollen that it impacted her ability

to speak clearly. After receiving his Miranda advisements and signing a waiver

of his rights, Salhab stated in a recorded interview that he was aware that Z.R.

was seventeen years old. Salhab admitted that he had engaged in sexual

intercourse and oral sex with Z.R. in his van and that he had rubbed his penis

against her until he ejaculated. Salhab also admitted that he had penetrated

Z.R.’s vagina and anus with his fingers, specifying that he had penetrated her

anus with his finger because “he thought it would make her happy if he did

that, that it make [sic] him cum[.]” (Transcript Vol. II, p. 216). Z.R.

underwent a sexual assault examination. Swabs taken from Z.R.’s internal and

external genitalia, anus, and a bitemark on her left breast showed the presence

of Salhab’s DNA.

[9] On November 2, 2018, the State filed an Information, charging Salhab with

three Counts of Level 3 felony rape, one for forced sexual intercourse, one for

forced oral sex, and one for forced digital penetration. The State also charged

Salhab with Level 5 felony child seduction, Level 5 felony criminal

confinement, and Level 6 felony child seduction. On November 14, 2019, the

trial court convened Salhab’s two-day jury trial. The jury found Salhab guilty

as charged.

Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020 Page 4 of 13 [10] On December 3, 2019, the trial court held Salhab’s sentencing hearing. Due to

double jeopardy concerns, the trial court vacated Salhab’s convictions for Level

5 felony child seduction and Level 5 felony criminal confinement. The trial

court found as a mitigating circumstance that Salhab had no history of criminal

convictions. The trial court found as aggravating circumstances that Salhab

had caused Z.R. injury; Z.R. was in his care, custody and control at the time of

the offenses as her de facto guardian; and the nature and circumstances of the

offenses were aggravating. The trial court sentenced Salhab to eight years for

each of the Level 3 felony rapes, with two years suspended from each of those

individual sentences, and to one year for his Level 6 felony child seduction

conviction. The trial court order Salhab to serve his three rape sentences

consecutively because it believed “from the evidence that these were distinct

acts” and because the “significant” aggravating circumstance of his having care,

custody, and control over Z.R. merited the imposition of consecutive sentences.

(Tr. Vol. III, p. 80). The trial court ordered Salhab to serve his one-year child

seduction conviction concurrently, for an aggregate sentence of twenty-four

years, and it ordered Salhab to serve three years of probation. Condition No.

21 of Salhab’s probation order (Condition No. 21), prohibited him from, among

other things, visiting “businesses that sell sexual devices or aids.” (Appellant’s

App. Vol. III, p. 5).

[11] Salhab now appeals. Additional facts will be provided as necessary.

Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020 Page 5 of 13 DISCUSSION AND DECISION I. Continuous Crime Doctrine

[12] Salhab contends that the continuous crime doctrine bars his conviction for rape

by digital penetration. More specifically, Salhab argues that his conviction for

rape by digital penetration cannot stand because there was no evidence that the

offense occurred separately from his sexual intercourse oral sex offenses. We

examine the issue of whether convictions run afoul of the continuous crime

doctrine as one of pure law requiring a de novo review. Hines v. State, 30 N.E.3d

1216, 1219 (Ind. 2015).

[13] In Hines, our supreme court clarified that the

continuous crime doctrine is a rule of statutory construction and common law limited to situations where a defendant has been charged multiple times with the same offense. The continuous crime doctrine does not seek to reconcile the double jeopardy implications of two distinct chargeable crimes; rather, it defines those instances where a defendant’s conduct amounts only to a single chargeable crime. The Legislature, not this Court, defines when a criminal offense is “continuous,” e.g. not terminated by a single act or fact but subsisting for a definite period and covering successive, similar occurrences.

Id. (quotes and cites omitted). The court held that the doctrine only applies

where the defendant “has been charged multiple times with the same

‘continuous’ offense.” Id. at 1220. The Hines court disagreed with Buchanan v.

State, 913 N.E.2d 712, 720-21 (Ind. Ct. App. 2009), trans. denied, which applied

the doctrine to the two distinct criminal offenses of false reporting and

Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020 Page 6 of 13 intimidation, and it noted that Nunn v. State, 695 N.E.2d 124, 125 (Ind. Ct.

App. 1998), trans. denied, upon which Buchanan had relied, “too broadly

paraphrased precedent when it stated, ‘[O]ur decisions have long recognized

that actions which are sufficient in themselves to constitute separate criminal

offenses may be so compressed . . . as to constitute a single transaction.’” Id. at

1220.

[14] Since Hines was decided, this court held in Dilts v. State, 49 N.E.3d 617, 631-32

(Ind. Ct. App. 2015), trans. denied, that the continuous crime doctrine did not

apply to bar convictions for two Counts of Class A felony child molestation,

where one was charged as sexual intercourse and one was charged as deviate

sexual conduct, and where the evidence showed that the molestation took place

on different days. We also examined the continuous crime doctrine in Heckard

v. State, 118 N.E.3d 823, 825 (Ind. Ct. App. 2019), trans. denied, where Heckard

was convicted of two counts of Level 1 felony child molesting by other sexual

conduct involving D.K. Count I of the Information alleged that Heckard

performed oral sex on D.K., while Count II of the Information alleged that

Heckard submitted to oral sex with D.K. Id. at 826. Both of these acts

occurred during the same incident in the same location, a bathroom. Id. at 825.

Heckard argued that his dual convictions could not stand, as his actions had

been “so compressed in terms of time, place, and singleness of purpose and

continuity of action as to constitute a single transaction” and that he had been

convicted of the same continuous offense because he had been charged under

Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020 Page 7 of 13 the same ‘other sexual conduct’ portion of the child molesting statute. Id. at

830.

[15] Citing Dilts, we held that, because Heckard had been “convicted of two distinct,

chargeable crimes,” the continuous crime doctrine should not apply. Id. at 831.

However, even if the doctrine were arguably applicable because Heckard had

been charged twice with child molesting for ‘other sexual conduct’, focusing on

the specific actions alleged in the charging information, we concluded that the

doctrine had not been violated, as Heckard had been convicted of “two distinct

actions: one for performing a sexual act on D.K. and one for forcing D.K. to

perform a sexual act.” Id. at 832. Accordingly, we held that “even when

committed very close in time, two distinct child molestation offenses are

separate and distinct crimes.” Id. In affirming Heckard’s convictions, we noted

that “Heckard does not stand to benefit from the continuous crime doctrine for

his conduct merely because the [L]egislature has described both separate,

distinct actions under the same statute.” Id.

[16] Here, Salhab was convicted of three Counts of Level 1 felony rape. Indiana

Code section 35-42-4-1(a)(1) provides that rape occurs when a person

knowingly or intentionally has sexual intercourse with another person or knowingly or intentionally causes another person to perform or submit to other sexual conduct [] when [] the other person is compelled by force or imminent threat of force[.]

[17] ‘Sexual intercourse’ is defined as any penetration of the female sex organ by the

male sex organ. I.C. § 35-31.5-2-302. ‘Other sexual conduct’ is defined as an

Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020 Page 8 of 13 act involving either a sex organ of one person and the mouth or anus of another

person or the penetration of the sex organ or anus of a person by an object. I.C.

§ 35-31.5-2-221.5. The State charged Salhab with rape for subjecting Z.R. to

sexual intercourse, oral sex, and digital penetration. Following Dilts and

Heckard, we conclude that these offenses, as charged, were not three examples

of the same offense but separate and distinct actions which were not barred by

the continuous crime doctrine, even though they were all charged under the

rape statute.

[18] Salhab’s reliance on Flores v. State, 114 N.E.3d 522 (Ind. Ct. App. 2018), trans.

not sought, does not persuade us otherwise. In Flores, the defendant was charged

with two Counts of Level 4 felony child molesting for simultaneously rubbing

his penis between C.G.’s buttocks and touching her vagina over her underwear.

Id. at 523. Another panel of this court held that his convictions for both Counts

violated the continuous crime doctrine. Relying on Hines, the Flores court

reasoned that “these acts were closely connected in time, place, and continuity

of action and therefore constitute a single transaction.” Id. at 524. However,

the Hines court noted that the “time, place, and continuity of action” language

came from its previous decisions analyzing whether a homicide occurring after

a robbery could be considered “continuous” for purposes of the felony-murder

statute, and the Hines court observed that decisions such as Nunn and Buchanan

had overly-broadly paraphrased and misapplied that precedent. Hines, 30

N.E.3d at 1220. Therefore, we conclude that our supreme court has clarified

that whether offenses are closely connected in time, place, and continuity of

Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020 Page 9 of 13 action is not dispositive in continuous crime doctrine analysis outside the

context of felony-murder.

[19] Even if such factors were dispositive, Flores is not helpful to Salhab, because,

contrary to his assertions, the State produced evidence at trial that showed that

his digital penetration offense was not simultaneous with the sexual intercourse

and oral sex offenses. Salhab told investigators that he ejaculated after he

rubbed his penis above Z.R.’s buttocks and that he when he placed his finger in

Z.R.’s anus, “it make [sic] him cum[.]” (Tr. Vol. II, p. 216). Given that there is

nothing in the record indicating that Salhab ejaculated more than once during

the offenses, this evidence showed that his digital penetration was not

simultaneous with the sexual intercourse and oral sex offenses. Accordingly,

we conclude that Salhab’s convictions for three counts of Level 3 felony rape

did not violate the continuous crime doctrine.

II. Consecutive Sentences

[20] Salhab argues that the trial court abused its discretion when it ordered him to

serve his sentences for his three rape convictions consecutively. So long as a

sentence imposed by a trial court is within the statutory range for the offense, it

is subject to review only for an abuse of discretion. Anglemyer v. State, 868

N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An

abuse of the trial court’s sentencing discretion occurs if its decision is clearly

against the logic and effect of the facts and circumstances before the court, or

the reasonable, probable, and actual deductions to be drawn therefrom. Id., 868

N.E.2d at 490. A trial court abuses its discretion when it fails to enter a

Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020 Page 10 of 13 sentencing statement at all, its stated reasons for imposing sentence are not

supported by the record, its sentencing statement omits reasons that are clearly

supported by the record and advanced for consideration, or its reasons for

imposing sentence are improper as a matter of law. Id. at 490-91.

[21] The sentencing range for a Level 3 felony is between three and sixteen years,

with an advisory sentence of nine years. I.C. § 35-50-2-5(b). The trial court

imposed a below-advisory sentence of eight years for each of Salhab’s Level 3

felony rape convictions and ordered him to serve those individual sentences

consecutively. Salhab essentially argues that the trial court’s imposition of

below-advisory individual sentences shows that it found that the mitigators

outweighed the aggravators, and, thus, that it was an abuse of the trial court’s

discretion to impose consecutive sentences. However, Salhab’s argument is

based on an inaccurate premise, as the trial court did not find that the

mitigators outweighed the aggravators in his case; it made no statement

regarding its balancing of the aggravators and mitigators. In addition, after the

General Assembly adopted our present advisory sentencing scheme in 2005, a

trial court is no longer obligated to identify and weigh the aggravating and

mitigating circumstances upon rendering its sentence. Anglemyer, 868 N.E.2d at

491. Rather, it may impose any sentence authorized by law once it has entered

its sentencing statement. Id.; see also I.C. § 35-38-1-7.1(d). As a result, the

relative weight ascribed by the trial court to any aggravating and mitigating

circumstances is no longer subject to our review. Anglemyer, 868 N.E.2d at 491.

Salhab’s argument relying on the pre-Anglemyer decision Marcum v. State, 725

Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020 Page 11 of 13 N.E.2d 852, 864 (Ind. 2000), is unpersuasive because it is based on the

inaccurate assumption that the trial court was obligated to find that the

aggravators outweighed the mitigators in order to impose consecutive

sentences.

[22] Salhab also argues that the trial court abused its discretion when it found that

his position of care, custody, and control over Z.R. was an aggravating

circumstance meriting the imposition of consecutive sentences for his rape

convictions because the fact that he was Z.R.’s de facto guardian was an

element of his Level 6 felony child seduction offense. We agree with Salhab

that, as a general principle, a trial court abuses its discretion when it uses an

element of the offense as an aggravating circumstance to justify an enhanced

sentence. See Asher v. State, 790 N.E.2d 567, 570 (Ind. Ct. App. 2003) (finding

the trial court’s consideration of Asher’s position of trust with his victim upon

sentencing him for child seduction improper). However, Salhab’s care, custody

and control of Z.R. was not an element of the rape offenses, so that general

principle was not applicable to this case. We find no abuse of the trial court’s

sentencing discretion.

III. Condition No. 21

[23] The trial court suspended six years of Salhab’s sentence and ordered him to

serve three years of probation. Condition No. 21 ordered Salhab to refrain from

visiting “businesses that sell sexual devices or aids.” (Appellant’s App. Vol. III,

p. 5). Salhab argues that identical probation and parole conditions have already

been held to be unconstitutionally overbroad, and we agree. See Bleeke v.

Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020 Page 12 of 13 Lemmon, 6 N.E.3d 907, 921 n.8 (Ind. 2014) (parole condition); Custance v. State,

128 N.E.3d 8, 12 (Ind. Ct. App. 2019) (probation condition); Collins v. State, 911

N.E.2d 700, 714 (Ind. Ct. App. 2009) (probation condition), trans. denied.

Therefore, we reverse that portion of the trial court’s probation order and

remand with instructions to the trial court to clarify that portion of Condition

No. 21. See Custance, 128 N.E.3d at 12 (remanding identical probation

condition to the trial court for clarification).

CONCLUSION [24] Based on the foregoing, we conclude that Salhab’s conviction and sentencing

for rape by digital penetration does not violate the continuous crime doctrine

and the trial court did not abuse its discretion when it imposed consecutive

sentences. However, we also conclude that the challenged portion of Condition

No. 21 is unconstitutionally overbroad.

[25] Affirmed in part, reversed in part, and remanded for further proceedings

consistent with this opinion.

[26] May, J. and Altice, J. concur

Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020 Page 13 of 13