MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 14 2016, 8:53 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 Ernest P. Galos Gregory F. Zoeller Public Defender Attorney General of Indiana South Bend, Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Herbert Lee Brown, III, October 14, 2016 Appellant-Defendant, Court of Appeals Case No. 71A04-1603-CR-675 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Appellee-Plaintiff Marnocha, Judge Trial Court Cause No. 71D02-1501-F1-2
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016 Page 1 of 15 [1] Herbert Brown appeals his convictions for two counts of Level 1 Felony Rape 1
and two counts of Level 3 Felony Robbery.2 Brown raises the following
arguments on appeal: (1) the trial court erred by excluding evidence of the
victim’s other sexual conduct; (2) the trial court erred by denying a mistrial;
(3) there is insufficient evidence supporting the rape convictions; and (4) the
aggregate sentence is inappropriate in light of the nature of the offenses and his
character. Finding no error and finding that the sentence is not inappropriate,
we affirm.
Facts [2] Around 3:40 a.m. on January 1, 2015, Brown went to a 7-Eleven in South
Bend. The two clerks working that morning were Debra Pushee and Marcus
Kraskowski. After Pushee sold a customer a pack of cigarettes, Brown tried to
steal them. When the customer refused to give Brown the cigarettes, Brown
pulled a handgun, pointed it at Pushee, and said, “Give me the money.” Tr. p.
58. Pushee stood back from the register and allowed him to take the money
inside of it. Pushee thought that Brown was going to kill her and Kraskowski.
Brown then held his gun to Kraskowski’s chest, head, and neck, and demanded
that he open the register in front of him. Kraskowski complied, and Brown
took the money from inside of that register as well. Brown walked to the front
1 Ind. Code § 35-42-4-1. 2 I.C. § 35-42-5-1.
Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016 Page 2 of 15 door of the store, saw that his ride had left, and returned to the clerks,
demanding that they empty their pockets. He took Kraskowski’s wallet and
then exited the store.
[3] A minivan was parked outside of the 7-Eleven. Brown opened the door on the
driver’s side of the vehicle and got in. C.J., whose boyfriend was inside the
store, was resting in the passenger’s seat. When the door opened, she thought it
was her boyfriend, but when she opened her eyes and saw Brown, who she did
not know, she said, “Wait, dude, you’re in the wrong car.” Id. at 123. Brown
told her to “shut up” and pointed his gun at her. Id. He drove away and
eventually pulled the vehicle over and stopped.
[4] Brown asked C.J. to give him oral sex. She did not want to, but she did not
believe that she had any options “because he had that gun.” Id. at 126. She
urinated on herself. She performed oral sex on Brown, but he did not ejaculate.
He told her that she was doing it wrong and ordered her to go to the back of the
van and remove her pants. She complied. He followed and inserted his penis
into her vagina. He still did not ejaculate, and demanded that she again
perform oral sex. As she was performing oral sex a second time, he urinated in
her mouth. She spit it out and wiped it up with her shirt. Brown wiped down
everything in the vehicle that he had touched. C.J. asked him to take her back
to the 7-Eleven, where her boyfriend was probably waiting for her. Brown
eventually stopped the van and told C.J. to turn her head. She “thought he was
going to shoot [her] in the back of [her] head.” Id. at 131. He exited the van,
and she then jumped into the driver’s seat and drove away.
Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016 Page 3 of 15 [5] On January 16, 2015, the State charged Brown with three counts of rape, four
counts of robbery, and one count of criminal confinement. The State later
dismissed two counts of robbery and the criminal confinement charge. Prior to
trial, the State filed a motion in limine to exclude evidence of C.J.’s prior sexual
history. The trial court granted the motion in part, excluding evidence from
C.J.’s thigh swab revealing the presence of DNA that was not Brown’s.
[6] Brown’s jury trial began on January 19, 2016. During preliminary jury
instructions, the trial court cautioned the jury that the “fact that charges have
been filed and the defendant arrested and brought to trial, is not to be
considered by you as any evidence of guilt. The charging information is not
evidence.” Id. at 19-20. Then, the court realized that the packet provided to the
jury mistakenly included the original charge of criminal confinement that had
been dismissed. The trial court told the jury that “page three of this next
instruction wasn’t in any of our instructions, but it is[,] for some reason, in
yours,” explaining that it was a scrivener’s error and asking the jurors to rip out
page three. Id. at 21-22. After the jurors had removed page three, the trial court
said, “[t]hat’s something from some other case that was left over, that wasn’t for
some reason taken out of the ones that you have.” Id. at 22.
[7] The trial court started reading the charges, found a numbering error, and
decided to take a recess to collect the instructions and start over. At that point,
Brown’s attorney requested a sidebar and asked for a mistrial. The trial court
denied the motion. Next, the trial court asked of the jurors, “[d]oes anyone
think that based upon what I’ve said, that they couldn’t continue to be a fair
Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016 Page 4 of 15 juror in this case?” Id. at 27. The jurors all answered no. After a recess, the
trial court called the jury back in and again explained that the original
“instructions . . . had a count in it, in which Mr. Brown was not at all charged
with.” Id. at 33. The trial court asked again, “is there anything about that, that
you think . . . would cause you not to be able to continue to be a fair and
impartial juror and judge this case based upon the law and the facts that [are]
presented to you during this trial?” Id. The jurors all said no, and the trial
court then read the instructions again from the beginning, including the
instruction stating that the charging information is not to be considered as
evidence of guilt.
[8] Brown testified at the trial, admitting that he had a gun with him and that he
had sex with C.J. but insisting that it was consensual. C.J. also testified, as did
the 7-Eleven clerks, a police officer, and the nurse who examined C.J. following
the assault.
[9] On January 21, 2016, the jury found Brown guilty of two counts of Level 1
felony rape and two counts of Level 3 felony robbery. Brown’s sentencing
hearing took place on February 24, 2016. As aggravators for the robberies, the
trial court found that there were multiple victims and that Brown was on
probation for assisting a criminal in murder when he committed the offenses in
this case. As aggravators for the rapes, the trial court found that there were
multiple acts, that Brown was on probation, and that the nature and
circumstances of the offense were egregious, including the fact that he had
urinated in C.J.’s mouth. The trial court did not find any mitigators. The trial
Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016 Page 5 of 15 court imposed concurrent terms of forty years for each of the two rape
convictions, to be served consecutively to concurrent terms of sixteen years for
each of the two robbery convictions, for an aggregate sentence of fifty-six years
imprisonment. Brown now appeals.
Discussion and Decision I. Evidence of C.J.’s Prior Sexual History [10] Brown first argues that the trial court erred by excluding evidence of C.J.’s prior
sexual history. The admission and exclusion of evidence falls within the trial
court’s sound discretion, and we will reverse only if the decision is clearly
against the logic and effect of the facts and circumstances before it. Johnson v.
State, 6 N.E.3d 491, 498 (Ind. Ct. App. 2014).
[11] The trial court excluded the evidence of the DNA in C.J.’s thigh swab under
Indiana Evidence Rule 412, which provides, in relevant part, as follows:
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim or witness engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s or witness’s sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016 Page 6 of 15 (A) evidence of specific instances of a victim’s or witness’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
(B) evidence of specific instances of a victim’s or witness’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant's constitutional rights.
***
(c) Procedure to Determine Admissibility.
(1) Motion. If a party intends to offer evidence under Rule 412(b), the party must:
(A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered;
(B) do so at least ten (10) days before trial unless the court, for good cause, sets a different time;
(C) serve the motion on all parties; and
(D) notify the victim or, when appropriate, the victim’s guardian or representative.
(2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the
Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016 Page 7 of 15 hearing is confidential and excluded from public access in accordance with Administrative Rule 9.
In this case, the evidence excluded by the trial court was offered to prove that
C.J. had engaged in other sexual behavior on the night in question; therefore, it
was prohibited by Evidence Rule 412(a). Initially, we note that Brown did not
comply with Rule 412(c)—he did not file a motion seeking to have the evidence
admitted. Consequently, regardless of the substance of the evidence, he was
not entitled to its admission.3
[12] Lack of a motion notwithstanding, we will briefly address the substance of the
issue. The only way the evidence in question would be admissible is if it fell
under an exception to the general prohibition.
The first exception—evidence of specific instances of C.J.’s sexual behavior, offered to prove that someone other than Brown was the source of semen or other physical evidence—does not apply because Brown admitted that he did, in fact, have sex with C.J. on the night in question. The only contested issue was consent, not the identity of the person providing the semen in the van and semen and/or urine on C.J.’s shirt.
The second exception—evidence of specific instances of C.J.’s sexual behavior with respect to Brown, if offered by Brown to prove consent—does not apply because the evidence relates to C.J.’s sexual behavior with other individuals, not with Brown, and in no way tends to prove consent.
3 Brown has also waived this argument because he failed to argue to the trial court that the evidence fell within any of the Rule 412 exceptions. Waiver notwithstanding, we will address the issue.
Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016 Page 8 of 15 The final exception—evidence whose exclusion would violate Brown’s constitutional rights—does not apply. Brown argues that excluding the evidence denied him a fair trial because he could not impeach C.J.’s version of the events on the night in question. Brown had assumed that C.J. would testify that she had not had sex with anyone before he raped her, and that he would then impeach her with the thigh swab evidence. But she did not testify about her sexual behavior before the rape, so there was no testimony for him to impeach.
In sum, the evidence was clearly prohibited and did not fall under any of the
delineated exceptions to the general rule. Therefore, the trial court did not err
by excluding it.
II. Mistrial [13] Next, Brown argues that the trial court erred by denying his motion for a
mistrial when the dismissed criminal confinement charge was mistakenly
included in the instructions provided to the jury before trial began. A mistrial is
an extreme remedy that is only justified when other measures are insufficient to
rectify the situation. Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001). Brown
has the burden of establishing that the questioned conduct was so prejudicial
and inflammatory that he was placed in a position of grave peril to which he
should not have been subjected. Id.
[14] In this case, as soon as the trial court realized that the dismissed charge was
included in the jurors’ packets, it asked the jurors to remove the page and
explained that it contained a scrivener’s error. The trial court stated that it was
“something from some other case that was left over,” and not related to
Brown’s case. Tr. p. 22. The trial court asked of the jurors, “[d]oes anyone Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016 Page 9 of 15 think that based upon what I’ve said, that they couldn’t continue to be a fair
juror in this case?” Id. at 27. The jurors all answered no. After a recess, the
trial court again emphasized that the jurors had mistakenly been provided with
a count that Brown had not been charged with, and asked again, “is there
anything about that, that you think . . . would cause you to not be able to
continue to be a fair and impartial juror and judge this case based upon the law
and the facts that [are] presented to you during this trial?” Id. at 33. The jurors
again all answered no. When the trial court re-read the instructions from the
beginning, it again emphasized that criminal charges are not to be considered as
[15] Initially, we note that we must presume that jurors follow a trial court’s
instructions and admonishments. Isom v. State, 31 N.E.3d 469, 481 (Ind. 2015);
see also Lucio v. State, 907 N.E.2d 1008, 1010-11 (Ind. 2009) (emphasizing the
“strong presumptions that juries follow courts’ instructions and that an
admonition cures any error”). We find this Court’s opinion in Strowmatt v. State
to be instructive. 686 N.E.2d 154 (Ind. Ct. App. 1997). In Strowmatt, the judge
began reading the wrong child molesting charge, with a different victim’s name,
during voir dire. The judge twice apologized to the potential jurors and
explained that he had misread the charge. He asked if the misreading was a
problem, and none of the jurors responded. The defendant moved for a
mistrial, which the trial court denied, and this Court affirmed. We found that
the trial court had eliminated any possible prejudice by asking the jurors if they
Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016 Page 10 of 15 could be fair, emphasizing that the misreading occurred before trial and that the
wrong charge was not admitted into evidence. Id. at 157.
[16] In this case, as in Strowmatt, the trial court explained what had happened to the
jury more than once. The trial court also asked, twice, whether the jurors
would have difficulty being fair and impartial as a result, and all of the jurors
said no. Furthermore, the instructions cautioned the jurors that, in any event,
criminal charges are not to be considered as evidence of the defendant’s guilt.
Given all of these facts, and given that this sequence of events occurred before
the trial began and the wrong charge was not entered into evidence, we find no
error in the trial court’s denial of the motion for a mistrial.
III. Sufficiency [17] Brown argues that there is insufficient evidence supporting his two rape
convictions.4 When reviewing a claim of insufficient evidence, we will consider
only the evidence and reasonable inferences that support the conviction. Gray
v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm if, based on the
evidence and inferences, a reasonable jury could have found the defendant
guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.
2009).
4 He does not make a sufficiency argument with respect to his robbery convictions.
Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016 Page 11 of 15 [18] To convict Brown of the two charged counts of Level 1 felony rape, the State
was required to prove the following beyond a reasonable doubt: (1) Brown
compelled C.J. by force or imminent threat of force to perform oral sex on him
while he was armed with a deadly weapon; and (2) Brown compelled C.J. by
force or imminent threat of force to have sexual intercourse with him while he
was armed with a deadly weapon. I.C. § 35-42-4-1.
[19] In this case, C.J. testified that Brown forced her to perform oral sex on him and
to have sexual intercourse with him while he was armed with a gun. She was
scared and believed she had to comply because of the weapon. She testified at
length and with specificity. Her uncorroborated testimony, alone, is sufficient
evidence to support the rape convictions. Carter v. State, 44 N.E.3d 47, 54 (Ind.
Ct. App. 2015). And in this case, her testimony was not uncorroborated.
Pushee, Kraskowski, and another individual testified that after Brown left 7-
Eleven he got into a van. The nurse who examined C.J. and two police officers
who interviewed C.J. corroborated the details of the rapes that she provided in
her testimony. Finally, Brown himself corroborated much of C.J.’s testimony,
admitting that he was armed and that they had oral sex and intercourse in her
van. This evidence is more than sufficient to support the rape convictions, and
his arguments to the contrary amount to requests that we reweigh evidence and
assess witness credibility—requests we decline.
Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016 Page 12 of 15 IV. Appropriateness [20] Finally, Brown argues that the sentence imposed by the trial court is
inappropriate in light of the nature of the offenses and his character. Indiana
Appellate Rule 7(B) provides that this Court may revise a sentence if it is
inappropriate in light of the nature of the offense and the character of the
offender. We must “conduct [this] review with substantial deference and give
‘due consideration’ to the trial court’s decision—since the ‘principal role of
[our] review is to attempt to leaven the outliers,’ and not to achieve a perceived
‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)
(quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal
citations omitted).
[21] Brown was convicted of two Level 1 felonies and two Level 3 felonies. For the
Level 1 felonies, Brown faced a sentence of twenty to forty years, with an
advisory term of thirty years. Ind. Code § 35-50-2-4(b). He received concurrent
forty-year terms for the Level 1 felony convictions. For the Level 3 felonies,
Brown faced a sentence of three to sixteen years, with an advisory term of nine
years. I.C. § 35-50-2-5(b). He received concurrent sixteen-year terms for the
Level 3 felony convictions. While Brown received the maximum terms for
each of his four convictions, because the trial court elected to order that the two
Level 1 terms be served concurrently and the two Level 3 terms be served
concurrently, his aggregate sentence was 56 years rather than the maximum
possible aggregate term of 112 years.
Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016 Page 13 of 15 [22] As for the nature of the robberies, the record reveals that Brown’s crimes were
premeditated. He visited the 7-Eleven at the same time every day for a week,
scoping the store out. He showed up on the night he robbed the store wearing
just one glove that covered the tattoo on his hand, and a hooded sweatshirt, in a
failed attempt to hide his face. He robbed the two clerks twice, first taking the
money from their registers at gunpoint, then walking away to the front door,
and then returning and ordering them to empty their pockets.
[23] As for the nature of the rapes, he hijacked a vehicle with a passenger inside. He
ordered C.J. to shut up, pointing his gun at her, and drove her to another
location. He forced C.J. to perform oral sex on him twice and forced her to
engage in sexual intercourse. C.J. was so scared that she urinated on herself.
When Brown was unable to ejaculate, he urinated in C.J.’s mouth. 5 She was
terrified and believed that he was going to kill her. We do not find that the
nature of these offenses aids Brown’s sentencing argument.
[24] As for Brown’s character, we note that at the time he committed these crimes,
he was only twenty years old. At that young age, he had been adjudicated
delinquent for an alcohol violation and possessing marijuana. He was put on
probation for the latter adjudication and violated it for receiving three school
suspensions. In his brief adulthood, he was convicted of class C felony assisting
5 To the extent that Brown appears to argue that the trial court abused its discretion in finding this to be an aggravator, we note that he attempts to raise it in the context of the Rule 7(B) analysis, which is not permitted. Because he has failed to conduct an abuse of discretion analysis, he has waived this issue. However, even if he had raised it properly, we would have reached the same result.
Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016 Page 14 of 15 a criminal in murder. He was still on probation for that offense when he
committed his most recent crimes. It is readily apparent that Brown is either
unable or unwilling to comply with the rules of society. It is likewise apparent
that he has little respect for his fellow citizens. In sum, we do not find the
aggregate fifty-six-year sentence to be inappropriate in light of the nature of the
offenses and Brown’s character.
[25] The judgment of the trial court is affirmed.
May, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016 Page 15 of 15