Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose                     Jun 13 2014, 6:31 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.


ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

DYLAN A. VIGH                                        GREGORY F. ZOELLER
Law Offices of Dylan A. Vigh, LLC                    Attorney General of Indiana
Indianapolis, Indiana

                                                     ANDREW FALK
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

LAKHVIR SINGH,                                       )
                                                     )
        Appellant-Defendant,                         )
                                                     )
               vs.                                   )      No. 49A02-1309-CR-761
                                                     )
STATE OF INDIANA,                                    )
                                                     )
        Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Carol Orbison, Senior Judge
                             Cause No. 49G05-1203-FB-13930


                                            June 13, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                    Case Summary

       Lakhvir Singh appeals his convictions for Class D felony sexual battery, Class B

felony rape, Class B felony attempted criminal deviate conduct, Class A misdemeanor

domestic battery, and Class D felony strangulation. We affirm.

                                         Issues

      Singh raises several issues, which we restate as:

             I.     whether the evidence is sufficient to sustain his
                    conviction for Count VIII, attempted criminal deviate
                    conduct;

             II.    whether the trial court committed fundamental error by
                    failing to inquire into an interpreter’s qualifications;

             III.   whether the trial court properly instructed the jury
                    regarding Count VIII, attempted criminal deviate
                    conduct;

             IV.    whether the trial court abused its discretion when it
                    sentenced Singh; and

             V.     whether the sentence is inappropriate.

                                          Facts

      In May 2010, Parminder Multani was working on his graduate degree at Purdue

University. Multani’s mother and sister, twenty-eight-year-old S.K., came to Indiana

from India to visit Multani. S.K. was a high school teacher in India. She speaks Punjabi

and does not speak English. Unknown to S.K., her mother had apparently arranged for

S.K. to marry Singh, whom she had never met. While in Indiana, Multani, S.K., and their

mother went to a party at Singh’s family’s home. At that party, S.K. learned that she was

engaged to marry Singh. S.K. was shocked by the arranged marriage but tried to respect

                                            2
her mother’s wishes. Nine or ten days later, on May 29, 2010, S.K. married Singh in

Indianapolis.

       After the marriage, Singh and S.K. lived with his aunt, uncle, and his aunt’s family

in New Castle. While they lived there, S.K. was treated “like the servant.” Tr. p. 239.

She had to cook all of the meals, clean the entire house, and do all of the laundry. If she

did not clean or did not do it properly, Singh would beat her. She was only allowed to eat

leftover food and drink water. She would sleep on the floor of the bedroom, and Singh

would sleep on the bed. S.K. was not allowed to leave the house, and Singh threatened to

kill her if she did so.

        On July 10, 2010, Singh and S.K. moved into an apartment near Greenwood.

Singh would not allow S.K. to leave the apartment, get a job, or go to the temple. She

again was only allowed to eat his leftovers and only allowed to drink water. He slapped

her when he discovered that she was drinking milk while he was gone. He would often

slap, punch, and kick her. Singh forced S.K. to have sexual intercourse with him. He

also pushed her down, sat on her chest, squeezed her mouth until it opened, and put his

penis in her mouth. When she started throwing up, he slapped her several times and left.

       Multani learned about Singh’s treatment of S.K. and confronted him about it over

the telephone on August 31, 2010. Singh got angry and threatened Multani, and Multani

could hear Singh beating S.K. during the call. Singh broke the phone and put his hands

around S.K.’s neck and squeezed. Singh also threatened S.K. with a kitchen knife.

When S.K. tried to leave the apartment, Singh again put his hand on her neck and

squeezed harder than he had ever done before, making it difficult for S.K. to breathe.

                                            3
The next day, when Singh left for work, S.K. left the apartment, found an Indian couple,

and used their phone to call Multani. Multani drove to S.K.’s apartment and called 911

for help.

       Officers Lee Rabensteine and David Pankoke responded to Multani’s 911 call.

Officer Rabensteine knocked loudly on the door of Singh and S.K.’s apartment, and he

could hear a woman crying in the apartment. Eventually, Singh answered the door, and

the officers entered the apartment. Officer Rabensteine saw that the living room was “in

a state of disorder,” with furniture knocked over and broken glass in the corner. Id. at 93.

S.K. had a mark underneath her eye and marks on her neck.

       Ultimately, the State charged Singh with: Count I, Class B felony promotion of

human trafficking; Count II, Class B felony rape; Count III, Class D felony sexual

battery; Count IV, Class B felony rape; Count V, Class D felony sexual battery; Count

VI, Class B felony criminal deviate conduct; Count VII, Class D felony sexual battery;

Count VIII, Class B felony attempted criminal deviate conduct; Count IX, Class A

misdemeanor domestic battery; Count X, Class A misdemeanor domestic battery; Count

XI, Class D felony strangulation; and Count XII, Class A misdemeanor domestic battery.

       During the trial, an interpreter translated for S.K. and Singh’s uncle and aunt. The

trial court administered the interpreter’s oath but did not inquire into the interpreter’s

qualifications. The interpreter did not assist Singh, who testified in English. The jury

found Singh guilty of Count III, sexual battery; Count IV, rape; Count V, sexual battery;

Count VIII, attempted criminal deviate conduct, Count IX, domestic battery, Count X,

domestic battery, Count XI, strangulation; and Count XII, domestic battery. The jury

                                             4
acquitted Singh of the remaining charges. Due to double jeopardy concerns, the trial

court sentenced Singh only for the convictions related to Counts III, IV, VIII, IX, and XI.

The trial court sentenced Singh to one and one-half years on Count III, fifteen years on

Count IV, ten years on Count VIII, one year on Count IX, and three years on Count XI,

with the ten-year sentence consecutive to the fifteen-year sentence and the remaining

sentences concurrent, for an aggregate sentence of twenty-five years. The trial court

ordered twenty years to be served in the Department of Correction and five years in

community corrections. Singh now appeals.

                                        Analysis

                             I. Sufficiency of the Evidence

       Singh argues that the evidence is insufficient to sustain his conviction for Count

VIII, attempted criminal deviate conduct.       When reviewing the sufficiency of the

evidence needed to support a criminal conviction, we neither reweigh evidence nor judge

witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider

only the evidence supporting the judgment and any reasonable inferences that can be

drawn from such evidence.” Id. We will affirm if there is substantial evidence of

probative value such that a reasonable trier of fact could have concluded the defendant

was guilty beyond a reasonable doubt. Id.

       To convict Singh of attempted criminal deviate conduct as a class B felony, the

State needed to prove that he: (1) knowingly or intentionally; (2) took a substantial step;

(3) toward causing S.K. to perform or submit to deviate sexual conduct; (4) when she was



                                            5
compelled by force or imminent threat of force. See Ind. Code § 35-42-4-2; I.C. § 35-41-

5-1. The charging information for Count VIII provided:

              Lakhvir Singh, on or about or between August 1, 2010 and
              August 30, 2010, did attempt to commit the crime of Criminal
              Deviate Conduct, that is, to knowingly cause S.K. to perform
              or submit to deviate sexual conduct, an act involving a sex
              organ, that is: penis of Lakhvir Singh and the mouth of S.K.,
              when S.K. was compelled by force or imminent threat of
              force to submit to such deviate sexual conduct, by engaging
              in conduct that constituted a substantial step toward the
              commission of the crime of Criminal Deviate Conduct, that
              is, Lakhvir Singh used his body weight against S.K., straddled
              her chest while pushing his penis towards S.K.’s mouth and
              stated, “I am going to put it in your mouth until I come.”

App. pp. 28-29.

       Singh seems to argue that the evidence is insufficient to sustain this conviction

because he was charged with an attempted act, but the evidence introduced at trial

indicated that he completed the act. S.K. first testified regarding an incident where Singh

attempted to place his penis in her mouth, but she refused to open her mouth. This

incident was the basis for Count VI, criminal deviate conduct, and Singh was acquitted of

this charge. S.K. also testified to a later incident when Singh pinned her down by sitting

on her chest and placed his penis in her mouth until she vomited. This incident was the

basis for Count VIII, attempted criminal deviate conduct.

       Under the attempt statute, the offense is complete when, “acting with the

culpability required for commission of the crime, [a person] engages in conduct that

constitutes a substantial step toward commission of the crime.” I.C. § 35-41-5-1. Thus,

the offense was complete when Singh sat on S.K.’s chest while attempting to put his


                                            6
penis in her mouth. It is irrelevant that, according to S.K.’s testimony, he was ultimately

able to complete the act. The evidence is sufficient to sustain Singh’s conviction for

Count VIII, attempted criminal deviate conduct.

                                           II. Interpreter

       Singh argues that the trial court did not properly inquire into the interpreter’s

qualifications.1 According to Singh, this error “effectively denied him an interpreter.”

Appellant’s Br. p. 10. Singh acknowledges that he did not object, but he contends that

fundamental error occurred. The “[f]ailure to object at trial waives the issue for review

unless fundamental error occurred.” Treadway v. State, 924 N.E.2d 621, 633 (Ind. 2010).

“The ‘fundamental error’ exception is extremely narrow, and 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.”

Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). “The error claimed must either make

a fair trial impossible or constitute clearly blatant violations of basic and elementary

principles of due process.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (internal

quotation omitted). “This exception is available only in egregious circumstances.” Id.

(internal quotation omitted).




1
 Our supreme court has differentiated between defense interpreters and proceedings interpreters. Arrieta
v. State, 878 N.E.2d 1238, 1242 (Ind. 2008). Defense interpreters “benefit the non-English-speaking
defendant by simultaneously translating the English proceedings and assisting with attorney-client
communications.” Id. Proceedings interpreters “serve the court by translating the speech of participants
at various junctures.” Id. Singh’s argument concerns a proceedings interpreter.



                                                   7
       At the time of Singh’s trial, Indiana Evidence Rule 604 provided: “An interpreter

is subject to the provisions of these rules relating to qualification as an expert and the

administration of an oath or affirmation to make a true translation.” 2 Although the

interpreter here was given an oath, the trial court did not inquire regarding the

interpreter’s qualifications.     At the beginning of Singh’s testimony, the following

discussion occurred:

               Q Now Mr. Singh . . . Can you speak in English?
               A Yes, sir, I do and some word I can’t understand, but I do.
               Q Okay. If you have a problem with a word, then you can
               consult the lady sitting to your left there and ask her, okay?
               A Yes, sir.
               Q Okay, let’s try it in English.

Tr. p. 430. The State objected to Singh going “back and forth” between English and

Punjabi. Id. at 431. The trial court stated: “He sounds as if he speaks fairly good

English. If there’s a problem, I’m going to advise him not to consult with an interpreter

but to indicate he does not understand the word.” Id. The trial court then instructed

Singh: “If there is a word you do not understand, let the court know instead of consulting

with the interpreter and then we will have that word interpreted into your language.” Id.

at 432. Singh did not consult with the interpreter or have any words translated into

Punjabi during his testimony.

       The State argues that Singh was not entitled to an interpreter because he could

speak and understand English. We need not address this argument because, even if Singh

was entitled to an interpreter, he has failed to demonstrate that fundamental error

2
 The rule was amended effective January 1, 2014, and now provides: “An interpreter must be qualified
and must give an oath or affirmation to make a true translation.”
                                                 8
occurred by the trial court’s failure to inquire into the interpreter’s qualifications. Singh

argues that the error was fundamental because, at one point in his testimony, he struggled

with the word “force.” Tr. pp. 446-47. However, the trial court found that Singh was

able to speak in English, and he did so throughout the trial. When Singh struggled with

the definition of “force,” Singh’s counsel clarified the question, and Singh explained his

response. The trial court’s failure to inquire into the interpreter’s qualifications simply

did not rise to the level of making a fair trial impossible or constitute clearly blatant

violations of basic and elementary principles of due process. Consequently, Singh’s

fundamental error argument fails. See Tesfamariam v. Woldenhaimanot, 956 N.E.2d

118, 123 (Ind. Ct. App. 2011) (holding that the trial court’s failure to administer an oath

or address the interpreter’s qualifications did not result in fundamental error); Mariscal v.

State, 687 N.E.2d 378, 382 (Ind. Ct. App. 1997) (holding that the trial court’s failure to

address the interpreter’s qualifications did not result in fundamental error), trans. denied.

                                   III. Jury Instructions

       Singh argues that the trial court erred when it instructed the jury regarding Count

VIII, attempted criminal deviate conduct. Instructing a jury is left to the sound discretion

of the trial court, and we review its decision only for an abuse of discretion. Washington

v. State, 997 N.E.2d 342, 345 (Ind. 2013).         We undertake a three-part analysis in

determining whether a trial court has abused its discretion. Id. First, we determine

whether the tendered instruction is a correct statement of the law. Id. Second, we

examine the record to determine whether there was evidence to support the tendered



                                              9
instruction. Id. at 345-46. Finally, we determine whether the substance of the tendered

instruction was covered by another instruction or instructions. Id. at 346.

       The trial court rejected the following proposed final instruction tendered by Singh:

                      The crime of Attempted Criminal Deviate Conduct, a
              class B felony with which the Defendant is charged in Count
              8, is defined as follows:

                    A person attempts to commit Criminal Deviate
              Conduct when, acting with the culpability required for the
              commission of the crime of Criminal Deviate conduct, he
              engages in conduct that constitutes a substantial step toward
              the commission of the crime of Criminal Deviate Conduct.

                     A person who knowingly or intentionally causes
              another person to perform or submit to deviate sexual conduct
              when the other person is compelled by force, or imminent
              threat of force, commits Criminal Deviate Conduct, a class B
              felony.

                     To convict the Defendant of the crime of Attempted
              Criminal Deviate Conduct, the State must prove each of the
              following elements beyond a reasonable doubt:

                     1.     The Defendant, Lakhvir Singh,
                     2.     knowingly,
                     3.     attempted to commit the crime of Deviate
                            Sexual Conduct
                     4.     by straddling the chest of [S.K.] and pushing his
                            penis toward her mouth while stating, “I am
                            going to put it in your mouth until I come;”
                     5.     which act constituted a substantial step towards
                            commission of the crime of Criminal Deviate
                            Conduct, which is to knowingly cause [S.K.] to
                            perform or submit to deviate sexual conduct, an
                            act involving the penis of Lakhvir Singh and the
                            mouth of [S.K.], when [S.K.] was compelled by
                            force or the imminent threat of force.




                                            10
                      If the State failed to prove any of the above elements
              beyond a reasonable doubt, you must find the Defendant not
              guilty.

                     If the State did prove each of the above elements
              beyond a reasonable doubt, you may find the Defendant
              guilty of Attempt Criminal Deviate Conduct, a class B felony
              as charged in Count 8.

App. pp. 112-13. Instead, the trial court gave the following final instruction:

                      The crime of Attempted Criminal Deviate Conduct, a
              class B felony with which the defendant is charged in Count
              8, is defined by statute as follows:

                    A person attempts to commit Criminal Deviate
              Conduct when, acting with the culpability required for the
              commission of the crime of Criminal Deviate Conduct, he
              engages in conduct that constitutes a substantial step toward
              the commission of the crime of Criminal Deviate Conduct.

                     A person who knowingly or intentionally causes
              another person to perform or submit to deviate sexual conduct
              with the other person is compelled by force, or imminent
              threat of force, commits Criminal Deviate Conduct, a class B
              felony.

                     To convict the defendant of the crime of Attempted
              Criminal Deviate Conduct, the State must prove each of the
              following elements beyond a reasonable doubt:

                    1.      The defendant, Lakhvir Singh,
                    2.      knowingly,
                    3.      attempted to commit the crime of Deviate
                            Sexual Conduct
                    4.      by engaging in conduct that constituted a
                            substantial step toward the commission of the
                            crime of Criminal Deviate Conduct, which is:

                            (a)    to knowingly cause [S.K.] to perform or
                                   submit to deviate sexual conduct, an act
                                   involving the penis of Lakhvir Singh and
                                   the mouth of [S.K.]; and

                                             11
                                 (b)      when [S.K.] was compelled by force or
                                          imminent threat of force.

                        If the State failed to prove any of the above elements
                beyond a reasonable doubt, you must find the defendant no[t]
                guilty.

                       If the State did prove each of the above elements
                beyond a reasonable doubt, you may find the Defendant
                guilty of Attempt Criminal Deviate Conduct, a class B felony
                charged in Count 8.

Id. at 95-96.

        Singh argues that the trial court’s final instruction was erroneous because it did not

include the specific factual allegations that were included in the charging information.

We need not address his argument because, although he argues that the instruction was

defective because it was missing the factual allegations, he makes no argument that the

tendered instruction was not covered by other instructions given. In fact, Preliminary

Instruction Number 7 included the specific factual allegations regarding Count VIII.

Final Instruction Number 18 provided: “You should consider the Preliminary Instructions

along with the following Final Instructions in arriving at your verdict in this case. All of

the Instructions should be considered together.” App. p. 83. Consequently, Singh’s

proposed instruction was covered by other instructions, and the trial court did not err by

refusing Singh’s tendered instruction.3

                               IV. Sentencing – Abuse of Discretion

3
  Singh relies on Evans v. State, 571 N.E.2d 1231 (Ind. 1991), for the proposition that the trial court’s
instruction was erroneous. However, in Evans, “[t]he trial court, however, did not repeat the preliminary
instructions in its final instructions, nor did it give a final instruction which incorporated the preliminary
instructions or which made reference to them in any way.” Evans, 571 N.E.2d at 1233. “Therefore, the
jury did not receive the factual allegations which constituted the kidnapping charge as part of its final
instructions.” Id. Here, the trial court did reference the preliminary instructions.
                                                     12
       Singh argues that the trial court abused its discretion when it sentenced him.

Sentencing decisions are within the sound discretion of the trial court. Anglemyer v.

State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. However, a

trial court may be found to have abused its sentencing discretion in a number of ways,

including: (1) failing to enter a sentencing statement at all; (2) entering a sentencing

statement that explains reasons for imposing a sentence where the record does not

support the reasons; (3) entering a sentencing statement that omits reasons that are clearly

supported by the record and advanced for consideration; and (4) entering a sentencing

statement in which the reasons given are improper as a matter of law. Id. at 490-91. The

reasons or omission of reasons given for choosing a sentence are reviewable on appeal

for an abuse of discretion. Id. The weight given to those reasons, i.e. to particular

aggravators or mitigators, is not subject to appellate review. Id.

       Singh argues that the trial court abused its discretion by considering the impact on

S.K. and her family as an aggravator. The trial court found that Singh’s position of trust

and pattern of repeated physical and mental abuse of S.K. were aggravators. The trial

court then stated:

              I think that the most egregious aggravator in this case is the
              fact that Mr. Singh turned on its head the cultural norms,
              traditions and taboos of his country. Basically using them as
              a means to control and abuse another human being. Arranged
              marriages are a common occurrence in India and I have to
              think and I’ve heard testimony to the fact that for the most
              part they are good marriages, happy marriages, long
              marriages, if done in the right way and in the spirit in which
              this tradition has become customary in India. Mr. Singh was
              well aware of the fact that this young woman, through respect
              for her mother as is the tradition and the norm in India, she

                                             13
              would never not do as her mother wished and refuse to enter
              into this marriage. He was also fully aware of the fact that for
              this young woman to return to India and divorce and leave her
              husband, she would never be accepted back into the culture
              from which she came. She would be a disgrace on her
              family. And that her mother would most probably consider
              her to be someone no longer deserving of affection and
              protection and support.

Tr. pp. 600-01.

       Singh argues that this aggravator involved victim impact. Victim impact is an

improper aggravator where there is nothing in the record to indicate that the impact on

the victim was different than the impact generally experienced by victims of the same

crime. McElroy v. State, 865 N.E.2d 584, 590 (Ind. 2007). Even if we consider this

statement to be a victim impact aggravator, the trial court clearly indicated that, due to

her culture, the harm suffered by S.K. was different than the harm generally experienced

by victims of the same offenses. Moreover, we believe that the trial court’s statement is

more appropriately described as a nature and circumstances of the offense aggravator.

Our supreme court has held that the nature and circumstances of a crime is a proper

aggravating factor. McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001). The trial court

did not abuse its discretion when it sentenced Singh.

                           V. Sentencing - Inappropriateness

       Singh argues that his sentence is inappropriate in light of the nature of the offenses

and the character of the offender. Indiana Appellate Rule 7(B) provides that we may

revise a sentence authorized by statute if, after due consideration of the trial court’s

decision, we find that the sentence is inappropriate in light of the nature of the offenses


                                             14
and the character of the offender. When considering whether a sentence is inappropriate,

we need not be “extremely” deferential to a trial court’s sentencing decision. Rutherford

v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Still, we must give due consideration

to that decision. Id. We also understand and recognize the unique perspective a trial

court brings to its sentencing decisions. Id. Under this rule, the burden is on the

defendant to persuade the appellate court that his or her sentence is inappropriate.

Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

         The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,

and identify some guiding principles for trial courts and those charged with improvement

of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—

the aggregate sentence—rather than the trees—consecutive or concurrent, number of

counts, or length of the sentence on any individual count.” Id. When reviewing the

appropriateness of a sentence under Rule 7(B), we may consider all aspects of the penal

consequences imposed by the trial court in sentencing the defendant, including whether a

portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

2010).

         The nature of the offense is that Singh married S.K., who was from India and did

not speak English, through an arranged marriage. He proceeded to treat her terribly, both

physically and emotionally. Singh forced her to cook and clean, and he beat her when

she did not cooperate. He also forced her to have sexual intercourse with him and held

her down while attempting to have oral sex with her. He regularly beat her, would not

                                              15
allow her to leave their apartment, would not allow her to go to the temple, and deprived

her of food. Singh acknowledged in his testimony at the trial that he hit S.K., called her

names, and got into many arguments with her.

       As for the character of the offender, we acknowledge that several of Singh’s

relatives and his current wife spoke to his good character. However, the trial court

properly noted: “I can certainly believe that Mr. Singh, among friends and contacts, never

displayed this kind of aggressiveness or abusive behavior or language towards other

people.” Tr. p. 602. Singh’s actions toward S.K. certainly do not speak well regarding

his character.     We also acknowledge that the instant convictions are Singh’s first

convictions. However, despite Singh’s minimal criminal history, we conclude that, given

his repeated abuse of S.K. over several months, his twenty-five-year sentence is not

inappropriate in light of the nature of the offense and the character of the offender.

                                        Conclusion

       The evidence is sufficient to sustain Singh’s conviction for Count VIII, attempted

criminal deviate conduct. Fundamental error did not occur as a result of the trial court’s

failure to inquire into the interpreter’s qualifications, and the trial court did not err by

refusing Singh’s proposed instruction regarding Count VIII. Finally, the trial court did

not abuse its discretion when it sentenced Singh, and his twenty-five-year sentence is not

inappropriate. We affirm.

       Affirmed.

BAKER, J., and CRONE, J., concur.



                                             16
