MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 21 2018, 10:25 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Trampas A. Whalin Curtis T. Hill, Jr. Christopher J. Evans Attorney General of Indiana Adler Tesnar & Whalin Caryn N. Szyper Noblesville, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Lisa L. Colbert, December 21, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-234 v. Appeal from the Hamilton Superior Court State of Indiana, The Honorable Jonathan M. Appellee-Plaintiff. Brown, Judge Trial Court Cause No. 29D02-1608-FA-6468
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 1 of 25 Statement of the Case
[1] Lisa Colbert (“Colbert”) appeals her convictions by jury and the sentence
imposed thereon. Colbert raises several issues on appeal, which we summarize
as follows. Colbert first raises a sufficiency of evidence claim. She then
challenges the trial court’s rulings on the admission of certain evidence. Colbert
further asserts that the cumulative effect of the alleged errors denied her a fair
trial. Next, Colbert argues that her sentence is inappropriate in light of the
nature of the offenses and her character. Finally, she argues that the trial court
erred by failing to vacate several convictions after merging them.
[2] Concluding that the evidence is sufficient, Colbert waived review of her
evidentiary challenges by failing to make a contemporaneous objection at the
time the challenged evidence was introduced at trial, there was no denial of a
fair trial, and her sentence is not inappropriate, we affirm Colbert’s convictions
and the sentence imposed thereon. However, we remand so that the trial court
can issue a new sentencing order and abstract of judgment clarifying which
convictions are vacated after merging.
[3] We affirm and remand.
Issues
1. Whether there is sufficient evidence to support Colbert’s convictions for vicarious sexual gratification.
2. Whether the trial court erred in admitting certain evidence.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 2 of 25 3. Whether the trial court erred in submitting a juror question to A.C.
4. Whether the cumulative effect of alleged errors in the admission of evidence amounted to a denial of a fair trial.
5. Whether Colbert’s sentence is inappropriate.
6. Whether the trial court erred when it merged seven of Colbert’s convictions without also vacating the convictions.
Facts
[4] Colbert and her husband, Jayson Colbert (“Jayson”), have four children, two
daughters, S.C. and C.C., and two sons A.C. and T.C.1 S.C. is the oldest child
followed by A.C., C.C., and T.C.2 From 2004 to 2007, Colbert, Jayson, S.C.,
A.C., and C.C. resided in the Noble Manor apartment complex in Noblesville.
S.C. was between the ages of five (5) to eight (8), A.C. between four (4) and
seven (7), and C.C. between two (2) and five (5).
[5] In early 2016, Detective Michael Haskett (“Detective Haskett”) with the
Noblesville Police Department received a phone call from an individual who
identified herself as an “aunt or great aunt of [A.C.] and [S.C.]” (Tr. Vol. 3 at
246). Based on his conversation, Detective Haskett contacted and interviewed
1 T.C. was not yet born during the relevant time period for purposes of this appeal. 2 The State charged Colbert with child molest against C.C. However, C.C. did not testify, and the jury returned a not guilty verdict on the child molest count pertaining to C.C. Information regarding C.C. is provided only to the extent that it might be relevant for purposes of the instant appeal.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 3 of 25 S.C. Shortly thereafter, Detective Haskett spoke to another aunt, with whom
then seventeen-year-old A.C. was living with in Ohio. Detective Haskett
interviewed A.C. twice.
[6] Based upon Detective Haskett’s investigation, the State charged Colbert with
twenty-two counts: seven counts of Class A felony child molesting;3 two counts
of Class A felony aiding, inducing, or causing child molesting; 4 seven counts of
Class B felony incest;5 two counts of Class B felony vicarious sexual
gratification;6 two counts of Class C felony child molesting;7 and two counts of
Class D felony performing sexual conduct in the presence of a minor.8 These
charges related back to certain activities that occurred at the Noble Manor
apartment between 2004 and 2007 and related to alleged offenses against A.C.,
S.C., and C.C.9
[7] A week before trial, Colbert filed a motion in limine, requesting, in part, the
exclusion of her “other wrongs, prior bad acts, and non-charged conduct
and/or criminal offenses not reduced to conviction.” (App. Vol. 3 at 19). Her
3 IND. CODE § 35-42-4-3. 4 I.C. § 35-42-4-3. 5 I.C. § 35-46-1-3. 6 I.C. § 35-42-4-5. 7 I.C. § 35-42-4-3. 8 I.C. § 35-42-4-5. 9 We note that the Indiana General Assembly amended the above cited statutes. Because Colbert’s offenses occurred between 2004 and 2007, we apply the statutes in effect at the time of her offenses.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 4 of 25 motion in limine also sought to exclude the introduction of “evidence from the
cases and investigations conducted by the Department of Child Services, Child
Protective Services, and other similar agencies.” (App. Vol. 3 at 21). The State
then filed a notice of intent to offer Indiana Evidence Rule 404(b) evidence at
Colbert’s trial. The motion reads, in part, as follows:
1. The State intends to offer the following evidence of crimes, wrongs, or other acts at the trial of this matter: a. physical abuse committed or observed by the Defendant. b. drug use committed or observed by the Defendant. c. neglect committed or observed by the defendant. d. Department of Child Services involvement. e. Jayson Colbert’s conduct and statements related to the charges against the defendant as well as the above. 2. The State intends to introduce any and all evidence and information arising from the above investigations and incidents for the purpose of proving – a. motive, to show that some of the crimes charged were committed as part of a drug deal or were facilitated by physical abuse, b. opportunity, to explain the periods of time when the children were in the defendant’s custody and care, c. intent, d. preparation, e. plan, in that it shows a similar series of conduct over the four charged years in which sexual abuse, physical abuse, drug abuse were all tied together. Eliminating one of those eliminates the context for the others, f. knowledge, g. identity, absence of mistake, and/or i. lack of accident[.]
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 5 of 25 (App. Vol. 3 at 33).
[8] A three-day jury trial began on December 5, 2017. At the start of trial, the
parties litigated the State’s 404(b) motion and Colbert’s motion in limine. The
trial court ruled that the State could introduce evidence of Colbert’s drug use,
physical abuse, and Jayson’s conduct and statements related to Colbert’s
charges so long as the evidence was limited to the time period when the
Colberts lived at Noble Manor. The portion of Colbert’s motion in limine that
sought to exclude evidence regarding other crimes, wrongs and acts was
therefore denied as it pertains to the Noble Manor time period and granted to
the extent that any such evidence might fall outside of the identified time
period. The portion of Colbert’s motion in limine that sought to exclude
evidence regarding the Department of Child Services and Child Protective
Services was granted. The trial court’s pre-trial ruling is further explained by
the following colloquy:
STATE: So maybe we can present bad things that happened at Noble Manor that are related to the actual charged crimes –
THE COURT: Yeah.
STATE: -- but we can’t -- and which would include physical abuse and drug activities.
THE COURT: Absolutely.
STATE: And can’t do it relative to things that happened outside our slightly expanded charged timeframe. So basically if it didn’t happen at Noble Manor or when they were living in Noble Manor, we don’t -- that’s where the motion in limine is. Does that make -- is that basically what the Court’s ruling?
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 6 of 25 THE COURT: Yeah. That’s what my ruling is. And there’s a three-year gap, so I mean, I’m plus or minusing a year on each end of this just to deal with the time period delay, but since there’s a three-year gap between Noble Manor and the white house, that more than covers us. So the white house we said is from 2010 to 2012, roughly, so as far as memories go, I think everything at Noble Manor is pretty much fair game. And as far as the -- so in terms of the 404(b) motion, in terms of 1, 2, and 3 and 4, as long as we’re dealing with Noble Manor, I’m fine with that information coming in. Was the statements made by Jayson Colbert, that’s in the ‘04 to ‘07 time period?
STATE: Yes.
(Tr. Vol. 2 at 78-79).
[9] At trial, eighteen-year-old A.C. testified that between 2004 and 2007, when his
parents ran out of money to buy drugs, Colbert and Jayson invited men to the
Noble Manor apartment and allowed the men to choose one of his sisters to
have sexual intercourse with in exchange for drugs. He also explained at length
about the instances he observed his parents engaging in sexual acts and the
numerous instances when Colbert sexually abused him.
[10] A.C. testified regarding the various acts that Colbert had committed against
him. For example, he testified that when he was four, he was sitting on a
windowsill in an upstairs bedroom of the Noble Manor apartment when he saw
Colbert walking around naked, massaging her vagina with her hands and
moaning. On another occasion, A.C. was dressed in pajamas when Colbert
lured him into her bedroom under the guise of watching cartoons, took off his
pajama pants, and started rubbing his penis with her hand. Colbert then moved
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 7 of 25 her body on top of A.C., started “grinding” on him, and inserted his penis
“inside her private parts.” (Tr. Vol. 3 at 127-28).
[11] A.C. further testified that when he was four or five years old, Colbert “used to
masturbate [him] and used to make [him] have sex with [a] little girl[,]” who
was about two years younger than A.C. at the time. (Tr. Vol. 3 at 130). In
response to follow-up questions, A.C. explained that the sex involved “private
parts.” (Tr. Vol. 3 at 131). When asked, “what was happening,” A.C.
responded, “intercourse.” (Tr. Vol. 3 at 131). The State then asked A.C.,
“what was your penis doing,” and A.C. responded, “[r]ubbing against the little
girl’s private part.” (Tr. Vol. 3 at 131). Later, on cross-examination, counsel
for Colbert specifically asked A.C.: “[a]nd you had sex with a two-year-old,
perhaps, at that point in time, and sex, I mean, you stuck your penis in her
vagina?” (Tr. Vol. 3 at 175-76). A.C. responded “yes.” (Tr. Vol. 3 at 176).
[12] On multiple occasions, while living in the Noble Manor apartment, both
Colbert and Jayson physically abused A.C. They threw him across the room
and punched him in the face. On another occasion, Jayson, in Colbert’s
presence, threw A.C. into a fan with metal blades. A.C.’s testimony indicated
that the very last time he was punched in the face by Colbert was when he was
seven and “that’s how [he] got taken away.” (Tr. Vol. 3 at 162).
[13] At the conclusion of A.C.’s testimony, a juror submitted a question for A.C.:
“How did it come about that you were removed from your home at age 7?”
(Tr. Vol. 3 at 218). Colbert’s attorney objected to the question as cumulative,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 8 of 25 but the trial court overruled the objection and allowed A.C. to answer. In
response, A.C. stated: “I called my sister the B word and it was in front of
[Colbert]. And I got slapped across the face and this whole side of my face
swelled up and my school saw it and they called Children’s Services and I got
removed.” (Tr. Vol. 3 at 218). Colbert’s attorney again objected and stated, “I
guess the only cure is to ask the jury to ignore the last part of his answer and
then move on.” (Tr. Vol. 3 at 218). The trial court granted Colbert’s request
and instructed the jury “to ignore the last part of [A.C.’s] answer.” (Tr. Vol. 3
at 219). Later, defense counsel asked the trial court to strike A.C.’s “DCS
comment” from the record, and the trial court granted Colbert’s request. (Tr.
Vol. 3 at 219-20).
[14] Nineteen-year-old S.C. also testified. She described witnessing her parents have
sex with their bedroom door open. S.C. also recalled that her parents had drugs
in the living room and that her parents had invited drug dealers into the
apartment. When asked if she was ever forced to have sex with a drug dealer,
S.C. responded “not that I can remember.” (Tr. Vol. 3 at 239). S.C. also
testified that she was unable to recall being given a substance and then not
remembering what happened.
[15] The jury found Colbert guilty of five counts of Class A felony child molesting;
five counts of Class B felony incest; two counts of Class B felony vicarious
sexual gratification; two counts of Class C felony child molesting; and two
counts of Class D felony performing sexual conduct in the presence of a minor.
The trial court then entered judgments of conviction on the sixteen counts.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 9 of 25 [16] At sentencing, the trial court merged the five Class B felony incest convictions
into the five Class A felony child molesting convictions. The trial court also
merged Colbert’s two Class C felony child molest convictions together and her
two Class B felony vicarious sexual gratification convictions together. The trial
court declined to sentence Colbert on the seven merged counts. Thereafter, the
trial court sentenced Colbert to twenty-five (25) years for each of the five Class
A felony child molesting convictions; ten (10) years for the Class B felony
vicarious sexual gratification convictions; four (4) years for the Class C felony
child molesting conviction; and 545 days for each of the two Class D felony
performing sexual conduct in the presence of a minor convictions. All of her
convictions were ordered to be served consecutively, with an aggregate sentence
of one-hundred forty-two (142) years in the Department of Correction. Colbert
now appeals.
Decision
1. Sufficiency of Evidence
[17] First, Colbert challenges the sufficiency of the evidence for her two Class B
felony vicarious sexual gratification convictions. Our standard of review for
sufficiency of evidence claims is well-settled. We do not assess the credibility of
the witnesses or reweigh the evidence in determining whether the evidence is
sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We consider only
the probative evidence and reasonable inferences supporting the verdict. Id.
Reversal is appropriate only when no reasonable fact-finder could find the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 10 of 25 elements of the crime proven beyond a reasonable doubt. Id. Thus, the
evidence is not required to overcome every reasonable hypothesis of innocence
and is sufficient if an inference may reasonably be drawn from it to support the
verdict. Id. at 147.
[18] In order to convict Colbert of Class B felony vicarious sexual gratification, the
State was required to prove beyond a reasonable doubt that between June 11,
2004 and April 10, 2007, Colbert, being at least eighteen (18) years of age, to
wit: twenty-four (24) to twenty-seven (27) years of age, did knowingly direct or
aid or induce or cause A.C., a child under the age of fourteen (14), to wit: four
(4) to seven (7) years of age to engage in sexual intercourse with another child
under the age of fourteen (14), with the intent to arouse or satisfy the sexual
desires of one of the children or the other person. IND. CODE § 35-42-4-5(b)(1).
“Sexual intercourse” means an act that includes any penetration of the female
sex organ by the male sex organ. IND. CODE § 35-31.5-2-302. The statute
defining sexual intercourse “does not require that the vagina be penetrated, only
that the female sex organ be penetrated.” Thompson v. State, 674 N.E.2d 1307,
1311 (Ind. 1996). Proof of the “slightest penetration” of the female sex organ
by the male sex organ is sufficient. Mastin v. State, 966 N.E.2d 197, 202 (Ind.
Ct. App. 2012), trans. denied.
[19] Here, Colbert challenges the sufficiency of the evidence of sexual intercourse to
support her vicarious sexual gratification convictions. She specifically asserts
that “[g]iven A.C.’s testimony, it is at best ambiguous and unclear as to whether
sexual intercourse occurred, and his testimony is clearly insufficient to sustain a
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 11 of 25 conviction under subsection (b)(1) of the statute.” (Colbert’s Br. 22). She also
asserts that A.C.’s testimony was incredibly dubious.
[20] The State argues that sufficient evidence was presented from which the jury
could infer that sexual intercourse had occurred. The State also asserts that
A.C.’s testimony was not incredibly dubious, noting that “A.C. never wavered
from his version of events on direct or cross-examination and his testimony is
not so improbable or contrary to human experience that no reasonable person
could believe it.” (State’s Br. 23).
[21] Our review of the record reveals that A.C. testified that when he was four or
five years old, Colbert “used to make [him] have sex with [a] little girl[,]” who
was about two years younger than A.C. at the time. (Tr. Vol. 3 at 130). In
response to follow-up questions, A.C. explained that the sex involved “private
parts.” (Tr. Vol. 3 at 131). When asked “what was happening,” A.C.
responded, “intercourse.” (Tr. Vol. 3 at 131). The State then asked A.C.,
“what was your penis doing,” and A.C. responded, “[r]ubbing against the little
girl’s private part.” (Tr. Vol. 3 at 131). Later, on cross-examination, counsel
for Colbert specifically asked A.C.: “[a]nd you had sex with a two-year-old,
perhaps, at that point in time, and sex, I mean, you stuck your penis in her
vagina?” (Tr. Vol. 3 at 175-76). A.C. responded “yes.” (Tr. Vol. 3 at 176).
[22] There is sufficient evidence of sexual intercourse to support Colbert’s vicarious
sexual gratification convictions. A.C. was asked directly on cross-examination
whether his penis penetrated the young child’s vagina and A.C. responded in
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 12 of 25 the affirmative. This was sufficient evidence to sustain her conviction. See
Parmley v. State, 699 N.E.2d 288, 291 (Ind. Ct. App. 1998) (holding that a child
molestation victim’s affirmative response upon being asked by the prosecutor
whether the defendant put his penis inside her was sufficient evidence to sustain
the child molesting conviction), trans. denied. Further, as noted above, sexual
intercourse “does not require that the vagina be penetrated, only that the female
sex organ be penetrated.” Thompson, 674 N.E.2d at 1311. Thus, taking A.C.’s
direct examination testimony that he rubbed his penis against the young child’s
vagina, this was also sufficient evidence to establish sexual intercourse of the
young child’s female sex organ to sustain Colbert’s conviction. See Mastin, 966
N.E.2d at 202 (holding that the evidence of penetration was sufficient to
support defendant’s child molesting conviction based on defendant’s statements
that he would push aside victim’s underwear and “rub on” her vagina with his
penis). Accordingly, we find that there was sufficient evidence to support
Colbert’s vicarious sexual gratification conviction.
[23] To the extent that Colbert argues that the incredible dubiosity rule requires
reversal of her conviction, we note that the rule applies only in very narrow
circumstances. Townsend v. State, 26 N.E.3d 619, 626 (Ind. Ct. App. 2015),
trans. denied. Appellate courts may impinge upon a jury’s function to judge the
credibility of a witness, however, by applying the “incredible dubiosity” rule.
Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007). Application of the rule is
rare, and “‘[t]he standard to be applied is whether the testimony is so incredibly
dubious or inherently improbable that no reasonable person could believe it.’”
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 13 of 25 Hampton v. State, 921 N.E.2d 27, 29 (Ind. Ct. App. 2010) (quoting Fajardo, 859
N.E.2d, at 1208), reh’g denied, trans. denied. To warrant application of the
incredible dubiosity rule, there must 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, 756 (Ind. 2015).
[24] Colbert suggests that A.C.’s testimony was “both internally inconsistent and
inherently improbable.” (Colbert’s Br. 19). Such arguments, however, are
issues of witness credibility. The function of weighing witness credibility lies
with the trier of fact, not this court. Townsend, 26 N.E.3d at 626. We cannot
reweigh the evidence or judge the credibility of the witnesses. See Drane, 867
N.E.2d at 146. We also observe that it is well-established that in a prosecution
involving sexual offenses upon a child, a conviction may stand solely on the
uncorroborated testimony of a minor witness. Smith v. State, 779 N.E.2d 111,
115 (Ind. Ct. App. 2002), trans. denied. Additionally, the absence of a witness
does not mean that a criminal offense did not occur. See Carter v. State, 31
N.E.3d 17, 31 (Ind. Ct. App. 2015) (“That no other person testified to
witnessing or hearing [the victim] being molested does not establish that the
abuse did not happen”), reh’g denied, trans. denied. Further, there was not one
sole testifying witness. A.C., S.C., and Detective Haskett all testified. We
cannot say that the incredible dubiosity rule applies to Colbert’s case.
2. Admission of Evidence
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 14 of 25 [25] Colbert contends that the trial court erred in the admission of testimony
regarding her drug use, physical abuse, and the bad acts of Jayson. Colbert
argues that admission of “such a voluminous amount of evidence” amounted to
improper character evidence prohibited by Indiana Evidence Rule 404(b).
(Colbert’s Br. 27).
[26] The admission and exclusion of evidence falls within the sound discretion of
the trial court, and we review the admission of evidence only for an abuse of
discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of
discretion occurs when the trial court’s decision is clearly against the logic and
effect of the facts and circumstances before it. Conley v. State, 972 N.E.2d 864,
871 (Ind. 2012), reh’g denied.
[27] Evidence Rule 404(b) provides:
(b) Crimes, Wrongs, or Other Acts. (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must: (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trial if the court, for good cause, excuses lack of pretrial notice.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 15 of 25 This rule is designed to prevent the jury from assessing a defendant’s present
guilt on the basis of her past propensities – the “forbidden inference.” Remy v.
State, 17 N.E.3d 396, 399 (Ind. Ct. App. 2014), trans. denied. In assessing the
admissibility of 404(b) evidence, the court must: (1) determine that the evidence
of other crimes, wrongs, or acts is relevant to a matter at issue other than the
defendant’s propensity to commit the charged act; and (2) balance the probative
value of the evidence against its prejudicial effect pursuant to Evidence Rule
403. Bishop v. State, 40 N.E.3d 935, 951 (Ind. Ct. App. 2015), trans. denied. The
effect of Rule 404(b) is that evidence is excluded only when it is introduced to
prove the forbidden inference of demonstrating the defendant’s propensity to
commit the charged crime. Rogers v. State, 897 N.E.2d 955, 960 (Ind. Ct. App.
2008), reh’g denied, trans. denied. The trial court has wide latitude, however, in
weighing the probative value of the evidence against the possible prejudice of its
admission. Crain v. State, 736 N.E.2d 1223, 1235 (Ind. 2000).
[28] To preserve a claim of evidentiary error for purposes of appeal, a defendant
must make a contemporaneous objection at the time the evidence is introduced.
Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). This is true regardless of
whether the appellant filed a pre-trial motion seeking to exclude the evidence in
question. Id. “The purpose of this rule is to allow the trial judge to consider the
issue in light of any fresh developments and also to correct any errors.” Id.
[29] Here, Colbert filed a pre-trial motion in limine to exclude evidence of her
“other wrongs, prior bad acts, and non-charged conduct and/or criminal
offenses not reduced to conviction.” (App. Vol. 3 at 33). However, Colbert did
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 16 of 25 not object at the time the evidence was introduced at trial. 10 She therefore failed
to preserve the issue for appeal. See Johnson v. State, 725 N.E.2d 864, 867 (Ind.
2000) (noting a trial counsel’s failure to object to the admission of evidence
waives an error for appellate review).
[30] Because Colbert waived this argument, she can prevail only by meeting the
“daunting” fundamental error standard. Griffith v. State, 59 N.E.3d 947, 956
(Ind. 2016). The fundamental error exception to the contemporaneous-
objection requirement applies only “‘when the error constitutes a blatant
violation of basic principles, the harm or potential for harm is substantial, and
the resulting error denies the defendant fundamental due process.” Matthews v.
State, 849 N.E.2d 578, 587 (Ind. 2006). The alleged error must either make a
fair trial impossible or constitute clearly blatant violations of basic and
elementary principles of due process. Brown, 929 N.E.2d at 207. The
fundamental error exception is “extremely narrow” and reaches only those
errors that are so blatant that the trial judge should have taken action sua sponte.
Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014), cert. denied. The doctrine is
available only in egregious circumstances. Brown, 929 N.E.2d at 207.
10 Colbert also argues that her alternate course of action “of objecting to this evidence at trial would have been made in vein, and the required objections would have been so frequent that a jury may have perceived that the defense was employing tactics of obstruction.” (Colbert’s Br. 25). This argument is not persuasive. Because Indiana recognizes continuing objections, if counsel were concerned about interrupting the flow of trial, permission to show a continuing objection could have been sought. See Hayworth v. State, 904 N.E.2d 684, 692 (Ind. Ct. App. 2009). See also Evid. R. 103(b) (Once the court rules definitively on the record at trial a party need not renew an objection or offer of proof to preserve a claim of error for appeal).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 17 of 25 [31] Colbert has failed to show fundamental error in the trial court’s decision to
admit testimony regarding her drug use, physical abuse, and the bad acts of
Jayson. Considering A.C.’s testimony about Colbert’s drug use, we note that
this evidence was relevant to two of the charged offenses for Class A felony
aiding, inducing, or causing child molest by allegedly trading sexual intercourse
with his young sisters for drugs. In fact, Colbert “conced[es] that there exists a
rational link and relationship between the evidence of some drug usage and the
[S]tate’s charges that Colbert aided, induced or caused the offense of child
molest (which read, in substance, that Colbert facilitated sex with her minor
children in exchange for drugs) . . . .” (Colbert’s Br. 27). A.C.’s testimony
regarding Colbert’s drug use was relevant and highly probative because it was
connected to the manner in which she was alleged to have carried out the
charged offenses. Thus, Colbert cannot show error, let alone fundamental
error.
[32] Turning to the testimony regarding Colbert’s physical abuse of A.C. and the
bad acts of Jayson, we conclude, for the same reasons that the testimony
regarding Colbert’s drug use was admissible, the testimony regarding Colbert’s
physical abuse and bad acts of Jayson was also admissible. The jury was
entitled to hear this relevant and probative evidence. Accordingly, Colbert has
failed to meet the daunting task of showing that the admission of the testimony
regarding Colbert’s drug use, physical abuse, and the bad acts of Jayson
constituted fundamental error.
3. Juror Question to A.C.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 18 of 25 [33] Colbert argues that the trial court abused its discretion when it submitted a
juror’s question to A.C. Specifically, she contends that the question violated
her motion in limine, inappropriately allowed 404(b) evidence, and was
cumulative. Whether to submit a juror’s question to a witness is within the
discretion of the trial court. Amos v. State, 896 N.E.2d 1163, 1169 (Ind. Ct.
App. 2008), trans. denied. We will therefore review the trial court’s decision
only for an abuse of that discretion. Id. at 1170. Indiana Evidence Rule 614(d)
provides:
Questioning by Juror. A juror may be permitted to propound questions to a witness by submitting them in writing to the judge, who will decide whether to submit the question to the witness for answer, subject to the objections of the parties, which may be made at the time or at the next available opportunity when the jury is not present. Once the court has ruled upon the appropriateness of the written questions, it must then rule upon the objections, if any, of the parties prior to submission of the questions to the witness.
A proper juror question is one that allows the jury to understand the facts and
discover the truth. Amos, 896 N.E.2d at 1170.
[34] Here, a juror submitted the following question to A.C.: “How did it come about
that you were removed from your home at age 7?” (Tr. Vol. 3 at 218). Colbert
objected to the question as cumulative of prior testimony. The trial court
overruled the objection, submitted the question to A.C., and he responded: “I
called my sister the B word and it was in front of [Colbert]. And I got slapped
across the face and this whole side of my face swelled up and my school saw it
and they called Children’s Services and I got removed.” (Tr. Vol. 3 at 218).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 19 of 25 Colbert again objected and requested that the trial court “ask the jury to ignore
the last part of that answer and then move on.” (Tr. Vol. 3 at 219). The trial
court granted Colbert’s request and admonished the jury to ignore the last part
of A.C.’s answer. Thereafter, Colbert requested the trial court to strike A.C.’s
“DCS comment[]” from the record, and the trial court granted Colbert’s
request. (Tr. Vol. 3 at 219).
[35] Colbert argues that A.C.’s response to the juror question was “highly
prejudicial” and there was a “substantial likelihood that the improper testimony
contributed to the jury’s finding of guilt.” (Colbert’s Br. 14). We find that
asking A.C. the juror question was inappropriate for two reasons. First, the
juror question referred to Rule 404(b) evidence prohibited by Colbert’s motion
in limine. Prior to the start of trial, the trial court granted Colbert’s motion in
limine to exclude, in relevant part, any “evidence from cases and investigations
conducted by the Department of Child Services, Child Protective Services, and
other similar agencies.” (App. Vol. 3 at 21). It is clear that the answer was
more than what was expected and included information prohibited by Colbert’s
motion in limine. The second reason the juror question was inappropriate was
because it was cumulative of other evidence properly before the jury. Before
A.C.’s response to the juror’s question, he had already testified that he left
Noble Manor because he was removed from the home. Further, on cross-
examination, Colbert elicited from A.C. the following: “the very last time I got
punched in the face was when I was seven; that’s how I got taken away.” (Tr.
Vol. 3 at 162).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 20 of 25 [36] We need not address Colbert’s arguments because she sought and received an
admonishment for the jury to disregard any testimony relating to DCS. We
presume an admonishment is sufficient to cure any error in the admission of
evidence. Beer v. State, 885 N.E.2d 33, 48 (Ind. Ct. App. 2008). Nevertheless,
we disagree that the juror question and subsequent answer “affected Colbert’s
substantial rights.” (Colbert’s Br. 32). “[E]vidence admitted in violation of
Evidence Rules 402, 403, or 404 will not require a conviction to be reversed ‘if
its probable impact on the jury, in light of all of the evidence in the case, is
sufficiently minor so as to not affect a party’s substantial rights.’” Houser v.
State, 823 N.E.2d 693, 698 (Ind. 2005) (citations omitted). When the brief
reference to A.C. being removed by DCS is viewed in light of the overwhelming
evidence of Colbert’s guilt in this case, its probable impact on the jury was
minor.
4. Cumulative Effect of Errors
[37] Colbert argues that the cumulative effect of the alleged errors in admission of
evidence discussed above denied her a fair trial. The State responds that a
number of trial irregularities that do not amount to error standing alone do not
collectively amount to reversible error. Reaves v. State, 586 N.E.2d 847, 858
(Ind. 1992). Under some circumstances, the cumulative effect of trial errors
may warrant reversal even if each error might be deemed harmless in isolation.
Hubbell v. State, 754 N.E.2d 884, 895 (Ind. 2001). However, in this case, it is
clear that any prejudice that may have resulted was slight and the cumulative
effect of the alleged imperfections did not warrant reversal. Colbert was
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 21 of 25 “‘entitled to a fair trial, not a perfect trial.’” Inman v. State, 4 N.E.3d 190, 203
(Ind. 2014) (quoting Myers v. State, 887 N.E.2d 170, 175 (Ind. Ct. App. 2008),
trans. denied). Any alleged imperfection in Colbert’s trial “were more isolated
than pervasive in nature.” Id.
5. Inappropriate Sentence
[38] Colbert next argues that her aggregate sentence of one-hundred forty-two (142)
years is inappropriate in light of the nature of the offenses and her character.
This Court may revise a sentence if it is inappropriate in light of the nature of
the offense and the character of the offender. Ind. Appellate Rule 7(B). “The
7(B) ‘appropriateness’ inquiry is a discretionary exercise of the appellate court’s
judgment, not unlike the trial court’s discretionary sentencing determination.”
Knapp, 9 N.E.3d at 1291-92. “Appellate Rule 7(B) analysis is not to determine
whether another sentence is more appropriate but rather whether the sentence
imposed is inappropriate.” Conley, 972 N.E.2d at 876 (internal quotation marks
and citation omitted). The defendant has the burden of persuading the
appellate court that her sentence is inappropriate. Childress v. State, 848 N.E.2d
1073, 1080 (Ind. 2006). Whether a sentence is inappropriate ultimately
depends upon “the culpability of the defendant, the severity of the crime, the
damage done to others, and a myriad of other factors that come to light in a
given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
[39] “‘[R]egarding the nature of the offense, the advisory sentence is the starting
point the Legislature has selected as an appropriate sentence for the crime
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 22 of 25 committed.’” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016) (quoting
Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d
218 (Ind. 2007)). Here, Colbert was convicted of five Class A felonies and
sentenced to twenty-five (25) years for each conviction. The sentencing range
for a Class A felony is “for a fixed term of between twenty (20) and fifty (50)
years, with the advisory sentence being thirty (30) years.” I.C. § 35-50-2-4. She
was also convicted of seven Class B felonies and sentenced to ten (10) years.
The sentencing range for a Class B felony is “for a fixed term of between six (6)
and twenty (20) years, with the advisory sentence being (10) years.” I.C. § 35-
50-2-5. She was also convicted of two Class C felonies and sentenced to four
(4) years. The sentencing range for a Class C felony is “for a fixed term of
between two (2) and eight (8) years, with the advisory sentence being four (4)
years.” I.C. § 35-50-2-6. Finally, Colbert was convicted of two Class D felonies
and sentenced to 545 days for each conviction. For a Class D felony, the
sentencing range is “for a fixed term of between six (6) months and three (3)
years, with the advisory sentence being one and one-half (1½) years.” I.C. § 35-
50-2-7. The trial court imposed sentences that were either advisory or below
the advisory sentence.
[40] Colbert argues that the nature of her offenses does not support her aggregate
one-hundred forty-two (142) years sentence. We disagree. The nature of her
offenses involves Colbert, the mother of A.C., abusing her position of trust by
repeatedly molesting A.C., when he was between the tender ages of four (4) and
seven (7). Colbert forced A.C. to have sexual intercourse with another young
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 23 of 25 child for whom she was babysitting. She also physically abused A.C. if he did
not acquiesce to her sexual demands. Taken together, this underscores the
perverse and heinous nature of Colbert’s crimes.
[41] As for her character, Colbert argues that her lack of criminal history warrants a
reduced sentence. When considering the character-of-the-offender prong of our
inquiry, one relevant consideration is the defendant’s criminal history.
Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). Here, the
evidence submitted at trial is more persuasive of Colbert’s character than her
alleged prior good behavior. As the trial court recognized, Colbert “violate[d]
probably one of the most sacred relationships out there of mother and child by
not protecting her child.” (Tr. Vol. 4 at 224). Indeed, not only did Colbert fail
to protect A.C., she actively violated him and his innocence. Accordingly,
Colbert has not persuaded us that her sentence is inappropriate.
6. Judgment of Conviction
Finally, Colbert argues, and the State concedes, that the trial court erred when
it merged seven of Colbert’s convictions without vacating the judgments of
conviction. We agree. A trial court’s act of merging, without also vacating,
convictions that violate double jeopardy prohibitions, is not sufficient to cure
the double jeopardy violation. Gregory v. State, 885 N.E.2d 697, 703 (Ind. Ct.
App. 2008), trans. denied. Accordingly, we remand this cause to the trial court
with instructions for the trial court to issue a new sentencing order and abstract
of judgment vacating Colbert’s five convictions for Class B felony incest, one
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 24 of 25 conviction for Class B felony vicarious sexual gratification, and one conviction
for Class C felony child molest.
[42] Affirmed and Remanded.
Najam, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-234 |December 21, 2018 Page 25 of 25