MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 04 2020, 8:46 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brian A. Karle Curtis T. Hill, Jr. Ball Eggleston Attorney General of Indiana Lafayette, Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Thomas Andrew Lybrook, November 4, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-537 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Sean M. Persin, Appellee-Plaintiff. Judge Trial Court Cause No. 79C01-1804-F1-4
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-537 | November 4, 2020 Page 1 of 7 STATEMENT OF THE CASE [1] Appellant-Defendant, Thomas A. Lybrook (Lybrook), appeals his conviction
for two Counts of child molesting, Level 1 felonies, Ind. Code § 35-42-4-3(a).
[2] We affirm.
ISSUE [3] Lybrook presents this court with one issue on appeal, which we restate as:
Whether the trial court abused its discretion by excluding character evidence of
the child victim.
FACTS AND PROCEDURAL HISTORY [4] In March of 2015, William Galeener (Galeener) and his girlfriend, Michelle
Phebus got custody of Galeener’s granddaughters, M.B, then approximately
five years old, and C.B. In July 2016, Galeener offered Lybrook, whom he had
known for about thirty years, a job to do some construction work. In the later
part of 2017, Lybrook began babysitting M.B. and C.B., either at Galeener’s
home or at his trailer depending on whether Lybrook’s own child was staying
with him.
[5] When Lybrook was babysitting M.B. at his trailer, the two of them would go
into Lybrook’s bedroom and close the door. Lybrook would “pull down his
pants and force [M.B.] to pull down [her] pants.” (Transcript Vol. II, p. 42).
M.B. saw Lybrook’s “private part” and indicated that “he can like make it
where it’s like hard and soft by doing something.” (Tr. Vol. II, p. 43). M.B.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-537 | November 4, 2020 Page 2 of 7 described that Lybrook touched “[d]own where my private was, my front one”
with his penis “inside” and that it “hurt really bad.” (Tr. Vol. II, p. 43). While
M.B. was unable to recall how many times these incidents happened, she
affirmed that it happened more than once. M.B. also recalled a time when
Lybrook “took his private part, his private part that he goes number one with
and he took it and put in where I go number two.” (Tr. Vol. II, p. 60). She
described Lybrook’s penis penetrating her anus and the subsequent pain. M.B.
related that Lybook touched the “top” of her vagina with a “pink oval toy
thingy.” (Tr. Vol. II, p. 44). She described the toy as having three buttons that
made it vibrate at different speeds and that “it ma[de] like a bee sound.” (Tr.
Vol. II, p. 45). Lybrook’s son remembered that M.B. and Lybrook had
conversations in Lybrook’s bedroom with the door closed on approximately
five different times.
[6] On April 10, 2018, Galeener was contacted by M.B.’s elementary school. A
sexual assault examination revealed a detectable amount of male DNA present,
but not enough to identify the source of the DNA. DNA deposited via touch or
in the anus remains viable for 24 hours, while DNA deposited in the vagina
remains viable for up to 72 hours. Lybrook had last babysat M.B. between
April 6 and April 8, 2018.
[7] On April 17, 2018, the State filed an Information, charging Lybrook with five
Counts of Level 1 felony child molesting. On January 13, 2020, Lybrook
waived his right to a jury trial. Two days later, on January 15, 2020, the trial
court conducted a bench trial. During the bench trial, Lybrook called Galeener
Court of Appeals of Indiana | Memorandum Decision 20A-CR-537 | November 4, 2020 Page 3 of 7 during his case-in-chief. Lybrook inquired whether Galeener had “any
concerns about the credibility of the accusations.” (Tr. Vol. II, p. 205). The
State objected and Lybrook’s counsel explained that she was attempting to
question Galeener about his prior statements. The trial court allowed her to
rephrase the question. Upon rephrasing, Lybrook’s counsel asked, “Did you
ever report to law enforcement that you had concerns about the credibility of
the statements made by M.B.?” (Tr. Vol. II, p. 206). The State renewed its
objection because of its improper character as it called for a specific instance of
dishonesty. Again, the trial court found the question to be impermissible but
allowed Lybrook’s counsel to rephrase. Lybrook then questioned whether
Galeener, during the time M.B. had lived with him, had ever caught M.B. in a
lie. The State again objected on the same grounds. Finding that Lybrook was
not conducting cross-examination of Galeener, the trial court concluded that
the question was impermissible under the purview of Indiana Evidence Rule
608(b).
[8] At the conclusion of the evidence, the trial court found Lybrook guilty of two
Counts of Level 1 child molesting. On February 21, 2020, the trial court
conducted a sentencing hearing, at the close of which, it sentenced Lybrook to
an aggregate term of forty years.
[9] Lybrook now appeals. Additional facts will be provided if necessary.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-537 | November 4, 2020 Page 4 of 7 DISCUSSION AND DECISION [10] Lybrook contends that the trial court abused its discretion when it prevented
him from inquiring into M.B.’s credibility and reputation for truthfulness
pursuant to Indiana Evidence Rule 608. The trial court has inherent
discretionary power over the admission of evidence, and its decisions are
reviewed only for an abuse of that discretion. Bowman v. State, 73 N.E.3d 731,
734 (Ind. Ct. App. 2017), trans. denied. Accordingly, we will reverse the trial
court’s decision only when it is clearly against the facts and circumstances
before the court. Id. A trial court’s decision will be affirmed on any basis
apparent in the record, whether or not relied on by the trial court. Jeter v. State,
888 N.E.2d 1257, 1267 (Ind. 2008).
[11] While three specific Rules of Evidence address character evidence in trial
proceedings—Evidence Rule 404(a), 405(a), and 608—Lybrook’s argument
solely focuses on the application of Indiana Rule of Evidence 608, which
provides that:
(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 04 2020, 8:46 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brian A. Karle Curtis T. Hill, Jr. Ball Eggleston Attorney General of Indiana Lafayette, Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Thomas Andrew Lybrook, November 4, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-537 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Sean M. Persin, Appellee-Plaintiff. Judge Trial Court Cause No. 79C01-1804-F1-4
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-537 | November 4, 2020 Page 1 of 7 STATEMENT OF THE CASE [1] Appellant-Defendant, Thomas A. Lybrook (Lybrook), appeals his conviction
for two Counts of child molesting, Level 1 felonies, Ind. Code § 35-42-4-3(a).
[2] We affirm.
ISSUE [3] Lybrook presents this court with one issue on appeal, which we restate as:
Whether the trial court abused its discretion by excluding character evidence of
the child victim.
FACTS AND PROCEDURAL HISTORY [4] In March of 2015, William Galeener (Galeener) and his girlfriend, Michelle
Phebus got custody of Galeener’s granddaughters, M.B, then approximately
five years old, and C.B. In July 2016, Galeener offered Lybrook, whom he had
known for about thirty years, a job to do some construction work. In the later
part of 2017, Lybrook began babysitting M.B. and C.B., either at Galeener’s
home or at his trailer depending on whether Lybrook’s own child was staying
with him.
[5] When Lybrook was babysitting M.B. at his trailer, the two of them would go
into Lybrook’s bedroom and close the door. Lybrook would “pull down his
pants and force [M.B.] to pull down [her] pants.” (Transcript Vol. II, p. 42).
M.B. saw Lybrook’s “private part” and indicated that “he can like make it
where it’s like hard and soft by doing something.” (Tr. Vol. II, p. 43). M.B.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-537 | November 4, 2020 Page 2 of 7 described that Lybrook touched “[d]own where my private was, my front one”
with his penis “inside” and that it “hurt really bad.” (Tr. Vol. II, p. 43). While
M.B. was unable to recall how many times these incidents happened, she
affirmed that it happened more than once. M.B. also recalled a time when
Lybrook “took his private part, his private part that he goes number one with
and he took it and put in where I go number two.” (Tr. Vol. II, p. 60). She
described Lybrook’s penis penetrating her anus and the subsequent pain. M.B.
related that Lybook touched the “top” of her vagina with a “pink oval toy
thingy.” (Tr. Vol. II, p. 44). She described the toy as having three buttons that
made it vibrate at different speeds and that “it ma[de] like a bee sound.” (Tr.
Vol. II, p. 45). Lybrook’s son remembered that M.B. and Lybrook had
conversations in Lybrook’s bedroom with the door closed on approximately
five different times.
[6] On April 10, 2018, Galeener was contacted by M.B.’s elementary school. A
sexual assault examination revealed a detectable amount of male DNA present,
but not enough to identify the source of the DNA. DNA deposited via touch or
in the anus remains viable for 24 hours, while DNA deposited in the vagina
remains viable for up to 72 hours. Lybrook had last babysat M.B. between
April 6 and April 8, 2018.
[7] On April 17, 2018, the State filed an Information, charging Lybrook with five
Counts of Level 1 felony child molesting. On January 13, 2020, Lybrook
waived his right to a jury trial. Two days later, on January 15, 2020, the trial
court conducted a bench trial. During the bench trial, Lybrook called Galeener
Court of Appeals of Indiana | Memorandum Decision 20A-CR-537 | November 4, 2020 Page 3 of 7 during his case-in-chief. Lybrook inquired whether Galeener had “any
concerns about the credibility of the accusations.” (Tr. Vol. II, p. 205). The
State objected and Lybrook’s counsel explained that she was attempting to
question Galeener about his prior statements. The trial court allowed her to
rephrase the question. Upon rephrasing, Lybrook’s counsel asked, “Did you
ever report to law enforcement that you had concerns about the credibility of
the statements made by M.B.?” (Tr. Vol. II, p. 206). The State renewed its
objection because of its improper character as it called for a specific instance of
dishonesty. Again, the trial court found the question to be impermissible but
allowed Lybrook’s counsel to rephrase. Lybrook then questioned whether
Galeener, during the time M.B. had lived with him, had ever caught M.B. in a
lie. The State again objected on the same grounds. Finding that Lybrook was
not conducting cross-examination of Galeener, the trial court concluded that
the question was impermissible under the purview of Indiana Evidence Rule
608(b).
[8] At the conclusion of the evidence, the trial court found Lybrook guilty of two
Counts of Level 1 child molesting. On February 21, 2020, the trial court
conducted a sentencing hearing, at the close of which, it sentenced Lybrook to
an aggregate term of forty years.
[9] Lybrook now appeals. Additional facts will be provided if necessary.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-537 | November 4, 2020 Page 4 of 7 DISCUSSION AND DECISION [10] Lybrook contends that the trial court abused its discretion when it prevented
him from inquiring into M.B.’s credibility and reputation for truthfulness
pursuant to Indiana Evidence Rule 608. The trial court has inherent
discretionary power over the admission of evidence, and its decisions are
reviewed only for an abuse of that discretion. Bowman v. State, 73 N.E.3d 731,
734 (Ind. Ct. App. 2017), trans. denied. Accordingly, we will reverse the trial
court’s decision only when it is clearly against the facts and circumstances
before the court. Id. A trial court’s decision will be affirmed on any basis
apparent in the record, whether or not relied on by the trial court. Jeter v. State,
888 N.E.2d 1257, 1267 (Ind. 2008).
[11] While three specific Rules of Evidence address character evidence in trial
proceedings—Evidence Rule 404(a), 405(a), and 608—Lybrook’s argument
solely focuses on the application of Indiana Rule of Evidence 608, which
provides that:
(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in
Court of Appeals of Indiana | Memorandum Decision 20A-CR-537 | November 4, 2020 Page 5 of 7 order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of another witness whose character the witness being cross-examined has testified about.
[12] In Jacobs v. State, 22 N.E.3d 1286 (Ind. 2015), our supreme court was faced with
the cross-examination of a witness concerning the credibility for truthfulness of
the child victim of criminal deviate conduct. On at least three occasions during
cross-examination, defense counsel attempted to elicit from the child’s mother
testimony about specific instances of the child not being truthful. Id. at 1288.
One instance involved alleged behavioral problems the child was experiencing
which resulted in him no longer living with his father, another involved
whether the child told his mother that he was attending school when allegedly
he was not, and in a third instance counsel sought additional “specific
examples” of lies that the child may have told his mother. Id. Our supreme
court noted that because Jacobs attempted to delve into specific instances of the
child’s truthfulness, the testimony was prohibited under Evidence Rule 608. See
also Beaty v. State, 856 N.E.2d 1264, 1269 (Ind. Ct. App. 2006) (“Indiana cases
have consistently held that Evidence Rule 608(b) prohibits the introduction of
evidence regarding specific instances of misconduct.”), trans. denied
[13] Likewise, here, Lybrook attempted to inquire about specific instances of M.B.’s
truthfulness when he questioned whether Galeener had informed law
enforcement about the credibility of the statements. Although not explicitly
Court of Appeals of Indiana | Memorandum Decision 20A-CR-537 | November 4, 2020 Page 6 of 7 connected to the instances of child molest, by referring to law enforcement,
Lybrook clearly focused on M.B.’s truthfulness about her specific accusations,
which is prohibited under Evidence Rule 608. We reach a similar result with
regards to Lybrook’s question if Galeener had ever caught M.B. in a lie, as it
asked for specific examples of untruthfulness.
[14] Even if we characterize Lybrook’s questioning of Galeener as to whether he
had ever caught M.B. in a lie during the time M.B. had lived with him as a
general question without eliciting specific examples, we must conclude that the
testimony is prohibited pursuant to Evidence Rule 608(b) as Galeener was
called in Lybrook’s case-in-chief and was not testifying on cross-examination.
Accordingly, the trial court did not abuse its discretion in excluding the
improper character evidence.
CONCLUSION [15] Based on the foregoing, we conclude that the trial court properly excluded
testimony about the child victim’s reputation for truthfulness.
[16] Affirmed.
[17] May, J. and Altice, J. concur
Court of Appeals of Indiana | Memorandum Decision 20A-CR-537 | November 4, 2020 Page 7 of 7