MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 27 2017, 8:32 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William J. Cohen Curtis T. Hill, Jr. Cohen Law Offices Attorney General of Indiana Elkhart, Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brent N. Draime, December 27, 2017 Appellant-Defendant, Court of Appeals Case No. 20A03-1704-CR-870 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Teresa L. Cataldo, Appellee-Plaintiff. Judge Trial Court Cause No. 20D03-1501-FA-5
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017 Page 1 of 15 Statement of the Case [1] Brent N. Draime appeals his convictions, following a jury trial, and his sentence
for three counts of child molesting, each as a Class A felony, and two counts of
attempted child molesting, each as a Class A felony. Draime raises six issues
for our review, which we restate as the following four issues:
1. Whether the trial court abused its discretion under Indiana Evidence Rule 404(b) when it permitted the victim to testify about certain photographs and the number of times that Draime had forced her to perform oral sex on him.
2. Whether the trial court committed fundamental error when it permitted a video statement made by the victim ten years prior to the charges to be played to the jury.
3. Whether the State presented sufficient evidence to support Draime’s convictions.
4. Whether Draime’s 120-year sentence is inappropriate.
[2] We affirm.
Facts and Procedural History [3] Around 1993, when N.P. was four years old, her mother began dating Draime.
A few years later, N.P. and her family moved into an apartment with Draime.
N.P. considered Draime “a father figure.” Tr. Vol. II at 236.
Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017 Page 2 of 15 [4] Between 1996 and 2003, Draime repeatedly molested N.P. On some occasions,
he performed oral sex on her. On others, he had her perform oral sex on him.
On still other occasions, he would have her manually stimulate him.
[5] During those years, Draime showed N.P. photographs of naked women,
including a photograph of N.P.’s mother masturbating. Draime also showed
N.P. photographs of women performing oral sex. And Draime showed N.P.
sexually explicit videos, including a video of Draime and N.P.’s mother
engaging in sexual activity. On at least one occasion, Draime took several
photographs of N.P. while her vagina was exposed.
[6] During N.P.’s early teenage years, while at a local festival, N.P. wanted to get
“Henna art on [her] hand.” Tr. Vol. III at 22. On another occasion during
those years, N.P. wanted to get her belly button pierced. On both occasions,
Draime told N.P. she would have “to do something for him” in exchange. Id.
N.P. understood Draime to be “bartering for [sexual] acts,” which she declined
to do both times. Id.
[7] In 2004, a neighbor observed N.P. smoking marijuana and confronted N.P.
During that conversation, N.P. reported Draime’s acts to the neighbor, and the
neighbor, in turn, contacted the Child and Family Advocacy Center (“CFAC”).
N.P. then gave a video-recorded statement to a CFAC investigator in which she
described Draime’s actions. However, following N.P.’s recorded statement, the
investigator immediately suspended the case rather than conducting any further
investigation.
Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017 Page 3 of 15 [8] About a decade later, N.P., an adult, contacted local police to find out what
had happened with the 2004 investigation. Detective Jeremy Stout with the
Elkhart County Sheriff’s Department received N.P.’s request, obtained her 2004
CFAC video-recorded statement, and interviewed N.P. N.P. told Detective
Stout of Draime’s actions, and her descriptions were consistent with her 2004
statement.1 Accordingly, Detective Stout reopened the investigation into
Draime.
[9] Thereafter, Detective Stout interviewed Draime. Detective Stout observed that,
during the interview, Draime was “nervous and stressed.” Tr. Vol. IV. at 163.
Draime denied N.P.’s allegations generally but provided statements that
corroborated portions of N.P.’s statements. For example, Draime confirmed
that he had Polaroid photographs of nude women in his toolbox, and he
confirmed that he shaved his pubic region.
[10] On February 17, 2017, the State filed an amended information against Draime
in which the State alleged that Draime had committed three Class A felony acts
of child molesting and two Class A felony acts of attempted child molesting.
Each of the State’s five charges alleged an act “between[] 1996[] and December
24, 2003,” in Elkhart County between Draime and N.P., and each charge
recited the relevant statutory language, but the charges were otherwise not
factually specific. Appellant’s App. Vol. II at 127-28.
1 Detective Stout stated that he was, “putting it lightly, very frustrated” by the 2004 decision to suspend the investigation following N.P.’s recorded statement. Tr. Vol. IV at 149. He also stated that the 2004 decision to suspend the investigation would “not happen” under current practices. Id.
Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017 Page 4 of 15 [11] N.P. testified at Draime’s ensuing jury trial. During her testimony, the State
asked N.P., over Draime’s objections, to describe the different photographs and
videos Draime had allegedly shown her or taken of her. The State also asked
N.P., again, over Draime’s objections, “how many times specifically from the
time you were in first grade [in 1996] through Christmastime of 2003 that you
had to perform . . . oral sex on the defendant?” Tr. Vol. III at 52. N.P.
responded, “[t]wenty or more.” Id. at 55.
[12] In his cross-examination of N.P., Draime repeatedly attacked her recollection
of the molestations. He also questioned whether N.P. “just ma[d]e these things
up” in 2004 after her neighbor had caught her smoking marijuana. Id. at 139-
44. In response to Draime’s cross-examination, the State requested that the
2004 CFAC video recording and N.P.’s 2014 interview with Detective Stout be
admitted into the record. The trial court granted the State’s request over
Draime’s objections.
[13] The jury found Draime guilty as charged. The trial court entered its judgment
of conviction against Draime and ordered him to serve an executed term of 120
years. In reaching that sentence, the court identified the following aggravating
circumstances, which were in accordance with a stipulation between Draime
and the State:
defendant has [a] prior operating while intoxicated case; victim was less than 12 years of age at the time of the offense . . . ; . . . the victim was 6 years old and in first grade and ended [sic] when victim was 13 years old and in eighth grade; for seven years conduct was continued intermittently . . . ; defendant
Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017 Page 5 of 15 was in a position of having care and control of the victim as the defendant was viewed as the father figure in this household[, and] defendant was looked to [to] fulfill that role.
Appellant’s App. Vol. II at 30. The court found as a mitigating circumstance
Draime’s service in the United States military and his honorable discharge from
that service. This appeal ensued.
Discussion and Decision Issue One: Admission of N.P.’s Testimony Regarding the Photographs and the Number of Molestations
[14] On appeal, Draime first contends that the trial court abused its discretion when
it permitted N.P. to testify, over Draime’s objections, about the photographs
and the number of times that Draime had made N.P. perform oral sex on him.
As our Supreme Court has explained:
Generally, a trial court’s ruling on the admission of evidence is accorded a great deal of deference on appeal. Because the trial court is best able to weigh the evidence and assess witness credibility, we review its rulings on admissibility for abuse of discretion and only reverse if a ruling is clearly against the logic and effect of the facts and circumstances and the error affects a party’s substantial rights.
Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015) (citations and quotation marks
omitted).
[15] Here, Draime objected in the trial court to the challenged evidence on two
grounds. First, he argued that the evidence was prohibited under Indiana
Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017 Page 6 of 15 Evidence Rule 404(b), which generally prohibits “[e]vidence of a crime, wrong,
or other act . . . to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.”
Second, he argued that any probative value of the evidence was “substantially
outweighed by a danger of . . . unfair prejudice,” and, as such, the evidence
should have been excluded under Indiana Evidence Rule 403. However, on
appeal Draime limits his arguments to only Rule 404(b). See Appellant’s Br. at
10-15.2
[16] The trial court did not abuse its discretion under Rule 404(b) when it permitted
N.P.’s testimony regarding the photographs. By its plain terms, evidence of
prior acts is permitted under Rule 404(b) when that evidence is offered “for
another purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Here, N.P.’s
testimony regarding the photographs was not admitted to show Draime’s
propensity to commit sex offenses; rather, her testimony was admitted to show
that Draime had prepared N.P. to be more comfortable with engaging him in
sexual acts. See, e.g., Guffey v. State, 42 N.E.3d 152, 160-61 (Ind. Ct. App. 2015)
(“We have previously held that a defendant’s planning and grooming were
relevant and established a valid basis for the admission of prior acts under Rule
404(b).”), trans. denied.
2 Although Draime references Rule 403 in his brief, he does not present argument supported by cogent reasoning on appeal under that Rule, and it is not this Court’s place to make that argument on his behalf. See Ind. Appellate Rule 46(A)(8)(a).
Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017 Page 7 of 15 [17] Still, Draime argues that the admission of N.P.’s testimony was contrary to our
Supreme Court’s holding in Buchanan v. State, 767 N.E.2d 967, 970 (Ind. 2002).
In Buchanan, the trial court permitted the State to introduce evidence that the
defendant had drawn pictures of “naked little girls.” Id. The trial court also
permitted the State to introduce evidence that the defendant owned a
pornographic magazine titled “Little Girls,” which was legal pornography. See
Buchanan v. State, 742 N.E.2d 1018, 1022 (Ind. Ct. App. 2001), rev’d, 767
N.E.2d at 970. Our Supreme Court agreed with our Court that the admission
of that evidence was erroneous because “[n]one of the drawings or photographs
showed physical contact between an adult male and a female child” and “the
drawings and photographs . . . [we]re not tied to [the defendant’s] relationship
with the victim or to any other facts of [the defendant’s] crime.” Id., rev’d, 767
N.E.2d at 970. Nonetheless, our Supreme Court held that the erroneous
admission of that evidence was harmless. 767 N.E.2d at 970.
[18] Buchanan is inapposite. Unlike in that case, here Draime presented the
materials to his victim; some of those materials showed sexual acts that Draime
had demanded of N.P.; some of those materials showed N.P.’s mother engaged
in sexual activity; and some of the materials involved N.P. herself. In other
words, N.P.’s testimony regarding the photographs was tied to Draime’s
relationship with her and to his crimes against her. Accordingly, Rule 404(b)
did not prohibit N.P.’s testimony regarding the photographs.
[19] Draime also asserts that the trial court abused its discretion under Rule 404(b)
when it permitted N.P. to testify that Draime had forced her to perform oral sex
Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017 Page 8 of 15 on him at least twenty times.3 In support of his argument on this issue, Draime
relies on this Court’s opinion in Stettler v. State, 70 N.E.3d 874, 880 (Ind. Ct.
App. 2017), trans. denied. In Stettler, the trial court admitted into evidence
“events that occurred [between the victim and the defendant] several years prior
to the conduct charged.” Id. We held that the trial court abused its discretion
under Rule 404(b) in the admission of that evidence. Id. at 880-81.
[20] Stettler does not apply here, however, where the victim’s testimony regarding
the number of times she had been molested was within the timeframe of each of
the State’s multiple charges against Draime. Such testimony does not describe
prohibited acts under Rule 404(b) but, rather, is “evidence . . . intrinsic to the
charge[s] . . . and therefore outside” Rule 404(b). Marshall v. State, 893 N.E.2d
1170, 1175 (Ind. Ct. App. 2008). Moreover, the State did not specify in its
charging information particular and distinct facts in support of each charge, and
Draime in turn did not rely on any such stated facts in the preparation of his
defense. Cf. Young v. State, 30 N.E.3d 719, 726-28 (Ind. 2015) (holding that it is
fundamental error to convict a defendant based on facts that are different from
facts stated in the charging information when the defendant has relied on the
language of the information in the preparation of his defense). Rather, the State
merely alleged that, within a span of about eight years, Draime had committed
or attempted to commit five Class A felony acts of child molesting. N.P.’s
3 Draime’s final paragraph in his brief on this issue, which spans pages 14 and 15 of his brief, is unclear. As we will not make an argument on behalf of a party, we do not interpret that paragraph to raise a different argument on appeal than the argument we address.
Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017 Page 9 of 15 testimony that he committed more than that number in that timeframe was
intrinsic to the State’s charges. Accordingly, the trial court did not abuse its
discretion under Rule 404(b) when it permitted N.P. to testify about the number
of times Draime had forced her to perform oral sex on him.
Issue Two: Admission of the CFAC Video
[21] Draime next asserts that the trial court erred when it permitted the State to play
the CFAC video to the jury. As the grounds Draime raises on appeal against
the admission of the CFAC video are different than the grounds on which he
objected in the trial court,4 on appeal Draime must show that the trial court
committed fundamental error in admission of the video. See Stephenson v. State,
29 N.E.3d 111, 118, 121 (Ind. 2015).5 Fundamental error is error that makes “a
fair trial impossible” and “is available only in egregious circumstances.” Brown
v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quotation marks omitted). On
appeal, Draime asserts that the trial court committed fundamental error when it
admitted the CFAC video because “[t]he State did not follow the admission
procedure set out in Ind. Code § 35-37-4-6,” which describes the admissibility of
video statements made by protected persons. Appellant’s Br. at 16.
4 The only objection to the CFAC video Draime maintained in the trial court was that the video should not be admitted because, at the time it was made, N.P. was not subject to cross-examination. Tr. Vol. III at 168. Despite his assertions on appeal, in the trial court Draime withdrew his objection that he “was never given the CFAC video with an opportunity to review it.” Id. at 167-68. 5 We note that our Supreme Court has held that fundamental error is not available on appeal when the defendant stated in the trial court that he had “no objection” to the admission of evidence. Halliburton v. State, 1 N.E.3d 670, 677 (Ind. 2013). However, in Stephenson our Supreme Court stated that fundamental error is available on appeal when the defendant objects to the admission of evidence on one ground in the trial court but proffers a different rationale on appeal. 29 N.E.3d at 121.
Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017 Page 10 of 15 [22] Indiana Code Section 35-37-4-6 (2017) plainly did not apply to the CFAC
video. Section 35-37-4-6 applies to recorded statements of protected persons.
As relevant here, a protected person is “a child who is less than fourteen (14)
years of age . . . at the time of trial.” I.C. § 35-47-4-6(c)(1), (d)(1). At the time
of Draime’s trial, N.P. was not a child, let alone a child under fourteen years of
age.6 Accordingly, no error, and no fundamental error, occurred in the
admission of the CFAC video under Indiana Code Section 35-37-4-6.
Issue Three: Sufficiency of the Evidence
[23] Draime next asserts that the State failed to present sufficient evidence to support
his convictions. Our standard of review is clear: in reviewing such claims, we
will consider only the evidence most favorable to the verdict and the reasonable
inferences to be drawn therefrom. Leonard v. State, 73 N.E.3d 155, 160 (Ind.
2017). We will affirm the conviction if there is probative evidence from which
a reasonable jury could have found the defendant guilty beyond a reasonable
doubt. Id. We will neither reweigh the evidence nor reassess the credibility of
witnesses. Id.
[24] Draime’s first argument on this issue is that N.P.’s testimony was incredibly
dubious. As our Supreme Court has explained:
6 In his brief, Draime also requests that, “[i]n the event this Court reverses and remands for a new trial,” we “rule upon a discovery issue involving the CFAC video.” Appellant’s Br. at 17. As we are neither reversing nor remanding, we do not consider Draime’s purported “discovery issue.”
Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017 Page 11 of 15 The incredible dubiosity rule allows the Court to impinge upon a jury’s responsibility to judge the credibility of the witnesses only when confronted with inherently improbable testimony. The incredible dubiosity rule is only applied in limited circumstances.
***
. . . the appropriate scope of the incredible dubiosity rule as utilized in Indiana and other jurisdictions requires that there be: 1) a sole testifying witness; 2) testimony that is inherently contradictory, equivocal, or the result of coercion; and 3) a complete absence of circumstantial evidence.
Moore v. State, 27 N.E.3d 749, 754, 756 (Ind. 2015) (citation and quotation
marks omitted). Even when there is a sole testifying witness, the incredible
dubiosity rule may not apply. Id. at 755. To apply, the witness’ testimony
“must be so convoluted and/or contrary to human experience that no
reasonable person could believe it.” Id. at 756 (citation and quotation marks
[25] The incredible dubiosity rule does not apply here for at least two reasons. First,
N.P. was not a sole testifying witness. While she was the only testifying
eyewitness to the molestations, various other witnesses testified and those
witnesses corroborated other parts of N.P.’s testimony. For example, N.P.’s
mother testified that she and Draime had made a video of them engaging in
sexual activity. N.P.’s mother also corroborated N.P.’s testimony that Draime
was not circumcised and that he often shaved his pubic region. Similarly,
Detective Stout testified that he had interviewed Draime, that Draime had
Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017 Page 12 of 15 similarly corroborated key aspects of N.P.’s allegations, and that, during the
interview, Draime was nervous. Second, Draime’s assertions aside, nothing
about N.P.’s testimony by itself was “so convoluted” or “contrary to human
experience that no reasonable person could believe it.” Id. (citation and
quotation marks omitted). Draime’s argument on appeal is, in essence, merely
a request for this Court to reweigh the evidence and reassess N.P.’s credibility,
which we will not do.
[26] Draime also asserts that the State failed to present sufficient evidence to support
either of the two attempt charges. In particular, Draime states that, when N.P.
“declined the proposals” Draime had made following her request for Henna art
and to get her belly button pierced, “there was no attempt as a matter of law
based upon the test set out in” Ward v. State, 528 N.E.2d 52, 53-54 (Ind. 1988).
Appellant’s Br. at 21. But in Ward our Supreme Court held that the State
presented sufficient evidence that the defendant had attempted to molest one of
his victims when the evidence showed that the defendant had followed his
eleven-year-old victim—whom the defendant had never before met—
approached the victim, and thrice requested the victim to engage in oral sex.
Ward, 528 N.E.2d at 55. In light of those facts, our Supreme Court held that
the defendant’s demands were “substantially in the nature of persuasion” and
therefore an attempt. Id.
[27] The instant facts are even more compelling than those in Ward. Draime lived
with N.P., he had a father-like position over her, and his demands, which she
declined, were made against a background of prior molestations. We conclude
Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017 Page 13 of 15 that, although N.P. declined Draime’s demands, his demands were
“substantially in the nature of persuasion” and therefore attempts on these facts.
Id. Further, we reject the implication in Draime’s argument that N.P. had to
accept Draime’s solicitations for those solicitations to become crimes.
Accordingly, we affirm Draime’s convictions.
Issue Four: Sentencing
[28] Last, Draime challenges his 120-year sentence. We begin our review of this
issue by noting that Draime repeatedly refers to his sentence as “unreasonable”
or “manifestly unreasonable.”7 Appellant’s Br. at 22-23. We remind Draime
that we have not reviewed sentences under the manifestly-unreasonable
standard for more than fourteen years. Since January 1, 2003, Indiana
Appellate Rule 7(B) has permitted the appellate revision of sentences only when
“the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” Ind. Appellate Rule 7(B).
[29] Substantively, Draime’s entire argument against his 120-year sentence is as
follows: “such a sentence for a 64 year old man whose only criminal history
consists of a Class C misdemeanor . . . is manifestly unreasonable. One
hundred twenty (120) years is a sentence that is greater than life for the
7 Draime also states that “the trial court abused its discretion” when it sentenced him. Appellant’s Br. at 22. But Draime does not support that argument with cogent reasoning, and it is waived. App. R. 46(A)(8)(a). Moreover, insofar as Draime complains that the trial court used his criminal history as an aggravating circumstance, the trial court’s identification of aggravators was pursuant to a stipulation between Draime and the State. Thus, any error in the court’s identification of aggravators was invited by Draime. See Baugh v. State, 933 N.E.2d 1277, 1280 (Ind. 2010).
Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017 Page 14 of 15 defendant.” Appellant’s Br. at 23. We interpret Draime’s argument to be that
his sentence is inappropriate in light of his character. However, that argument,
by itself, is not sufficient to invoke this Court’s authority to revise a sentence
under Rule 7(B). Rather, to invoke this Court’s authority under Rule 7(B), the
appellant must persuade this Court that his sentence is inappropriate in light of
both the nature of the offenses and the appellant’s character. Sanders v. State, 71
N.E.3d 839, 843-44 (Ind. Ct. App. 2017), trans. denied. Draime’s argument on
appeal does not address his sentence in relation to the nature of his offenses. As
such, he has waived our review of his sentence under Rule 7(B). Id. His waiver
notwithstanding, Draime repeatedly molested N.P. over seven years while in a
position of trust over her. As such, we cannot say that his sentence is
inappropriate in light of the nature of the offenses and his character, and we
affirm his sentence.
Conclusion
[30] In sum, the trial court did not abuse its discretion in the admission of N.P.’s
testimony regarding the photographs and the number of times Draime forced
her to perform oral sex on him; the trial court did not commit fundamental
error in the admission of the CFAC video; the State presented sufficient
evidence to support Draime’s convictions; and Draime’s 120-year sentence is
not inappropriate. Thus, we affirm his convictions and sentence.
[31] Affirmed.
Mathias, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A03-1704-CR-870 | December 27, 2017 Page 15 of 15