Greenboam v. State

766 N.E.2d 1247, 2002 Ind. App. LEXIS 650, 2002 WL 788885
CourtIndiana Court of Appeals
DecidedApril 30, 2002
Docket46A03-0103-CR-79
StatusPublished
Cited by26 cases

This text of 766 N.E.2d 1247 (Greenboam v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greenboam v. State, 766 N.E.2d 1247, 2002 Ind. App. LEXIS 650, 2002 WL 788885 (Ind. Ct. App. 2002).

Opinions

OPINION

SHARPNACK, Judge.

Robert W. Greenboam appeals his convictions for four counts of child molesting as class A felonies.1 Greenboam raises three issues, which we restate as:

1. Whether the trial court abused its discretion by admitting testimony regarding Greenboam's prior molestation of the current victim and another child;
2. Whether the evidence is sufficient to sustain his convictions for child molesting; and
3. Whether the sentence imposed by the trial court was manifestly unreasonable.

We reverse and remand.

The facts most favorable to the convictions follow. On December 8, 1998, Green-boam was charged with four counts of child molesting as class A felonies and six counts of child molesting as class C felonies2 for the molestation of his thirteen-year-old daughter, C.G. The charges relate to incidents of molestations that occurred between August 1997 and November 1998 [1250]*1250at the family's residence or in the cab of Greenboam's semi-truck which was parked outside the family's residence.

On one occasion, Greenboam woke C.G., grabbed her by the arm, and dragged her to the bathroom. Greenboam told C.G. to lick her hand and then forced C.G. to touch his penis. Greenboam also forced C.G. to place her mouth on his penis, and he ejaculated in her mouth. C.G. then vomited on him. Greenboam told C.G. not to tell anyone about the incident.

On another occasion, Greenboam woke C.G. and took her downstairs to the hallway near the bathroom. Greenboam told C.G. to lick her hand and forced her to touch his penis. Greenboam also touched C.G.'s chest during the incident. After Greenboam ejaculated, he made C.G. get down on her hands and knees. He then "put his penis in [her] butt" and moved "back and forth." Transeript at 480-431. C.G. said that it hurt and she cried. Greenboam threatened to kill C.G. during this incident.

On a third occasion, Greenboam woke C.G. and told her to go outside to the cab of his semi-truck. In the truck, Green-boam instructed C.G. to remove her clothing. Greenboam removed his clothing, made C.G. lick her hand, and made C.G. touch his penis. During this incident, Greenboam touched C.G.'s chest and inserted his finger into her vagina. Green-boam warned C.G. not to tell or she would go to foster care. He also told C.G. that she looked like her mother and that C.G. should not ery because "it should feel good."

On a fourth occasion, C.G. again went outside to the cab of the semi-truck. Greenboam entered the truck and removed his clothing. He told C.G. to remove her clothing, lick her hand, and touch his penis. Greenboam also made C.G. put her mouth on his penis. On a fifth occasion, while the family was seated at the dinner table, Greenboam touched C.G.'s chest and erotch through her clothing.

When questioned by Captain George Ritter of the LaPorte County Sheriff's Department in November 1998, Greenboam stated that "he did not touch [C.G.]'s breasts or crotch since the last time he did it in the past." Transcript at 399. Green-boam was evidently referring to two counts of child molesting as class C felonies to which he had pleaded guilty in August 1996 for molesting C.G. and his step-daughter, S.H.

On November 2, 2000, a jury found Greenboam guilty of four counts of child molesting as class A felonies and six counts of child molesting as class C felonies. The trial court merged the class C felony convictions with the class A felony convictions. The trial court then sentenced Greenboam to fifty years in the Department of Correction for each count of child molesting as a class A felony. The trial court ordered the four sentences to be served consecutively. Thus, Greenboam was sentenced to an aggregate 200 year sentence.

L.

The first issue is whether the trial court abused its discretion by admitting testimony regarding Greenboam's prior molestations of C.G. and S.H. The admission or exclusion of evidence is a matter left to the sound discretion of the trial court, and we will reverse only upon an abuse of that discretion. Sundling v. State, 679 N.E.2d 988, 992 (Ind.Ct.App.1997), reh'g denied. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and cireumstances. Smith v. State, 754 N.E.2d 502, 504 (Ind.2001).

[1251]*1251We must first address the State's argument that Greenboam waived any objection to the testimony regarding his prior bad acts by failing to object contemporaneously when the evidence was presented at trial. On appeal, a party may not assert that the trial court erred by overruling a motion seeking the exclusion of evidence unless the party objected to the evidence at the time it was offered. Sisk v. State, 736 N.E.2d 250, 251 (Ind.2000). However, we have approved the use of continuing objections where "the record demonstrates that the continuing objection fully and clearly advised the trial court of the specific grounds for the objection." Sullivan v. State, 748 N.E.2d 861, 864 (Ind.Ct.App.2001).

In this case, Greenboam filed a motion in limine seeking to exclude any evidence of prior molestations by Greenboam. After jury selection but prior to opening statements by counsel, the trial court heard argument on the issue. The trial court permitted the testimony under Ind. Evidence Rule 404(b) to show Green-boam's common plan or scheme to molest C.G.

Evidence of Greenboam's prior molestations of C.G. and S.H. was presented through the testimony of Captain Ritter, C.G., and S.H. Greenboam did not object at the time Captain Ritter testified regarding Greenboam's prior molestation of C.G. However, before Captain Ritter's challenged testimony, the following colloquy occurred regarding the prior molestations:

Court: For the record, the language that [prosecutor] prepared, [defense counsel] cleared it with his client and [defense counsel] just said that it was okay, but that is in no way waiving any of his objections that he made to this at the very beginning, right?
Defense Counsel: That's correct, those objections stand by giving your ruling, then the language as, as proposed the alterations in the language would be acceptable given your ruling.
The Court: Right, not waiving any of the objections-
Defense Counsel: Exactly.
The Court:-he had previously raised.

Transcript at 389-390. Although certainly not a model of clarity, this discussion was sufficient to advise the trial court of Greenboam's continuing objections. See, e.g., Sullivan, 748 N.E.2d at 864.

Greenboam also did not object to C.G.'s testimony of the prior molestation. However, prior to C.G.'s testimony, while discussing the trial court's limiting instruction regarding Greenboam's prior molestations, the following comments were made:

Defense Counsel: So my objection still stands it [is] not a waiver.

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Bluebook (online)
766 N.E.2d 1247, 2002 Ind. App. LEXIS 650, 2002 WL 788885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greenboam-v-state-indctapp-2002.