                                                                           FILED
                                                                      Aug 10 2020, 10:10 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Valerie K. Boots                                           Curtis T. Hill, Jr.
Daniel I. Hageman                                          Attorney General of Indiana
Indianapolis, Indiana                                      Tina L. Mann
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Amjab Salhab,                                              August 10, 2020
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-CR-3059
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Sheila A. Carlisle,
Appellee-Plaintiff.                                        Judge
                                                           The Honorable Stanley E. Kroh,
                                                           Magistrate
                                                           Trial Court Cause No.
                                                           49G03-1811-F3-38212



Riley, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020                            Page 1 of 13
                                 STATEMENT OF THE CASE
[1]   Appellant-Defendant, Amjad Salhab (Salhab), appeals following his conviction

      for three Counts of rape, Level 3 felonies, Ind. Code § 35-42-4-1(a)(1); and child

      seduction by a guardian, a Level 5 felony, I.C. § 35-42-4-7(m).


[2]   We affirm in part, reverse in part, and remand for further proceedings.


                                                    ISSUES
[3]   Salhab presents this court with three issues, which we restate as:


              (1) Whether his conviction for rape by digital penetration
                 violates the continuous crime doctrine;


              (2) Whether the trial court abused its discretion when it imposed
                 consecutive sentences for his rape convictions; and


              (3) Whether a condition of his probation is unconstitutionally
                 overbroad.


                       FACTS AND PROCEDURAL HISTORY
[4]   Salhab was a friend of the father of seventeen-year-old Z.R. Around October

      26, 2018, Salhab became Z.R.’s de facto guardian when she came to live in the

      home Salhab shared with his wife in Brownsburg, Indiana. Salhab was

      employed delivering medicines to area facilities for senior citizens in his van.

      Salhab’s wife worked at a nursing home facility. Salhab and his wife both

      worked night shifts.



      Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020       Page 2 of 13
[5]   On October 30, 2018, Salhab left for work around 9:30 p.m. but returned home

      shortly thereafter and asked Z.R. if she wanted to get something to eat and ride

      along with him while he made his deliveries. Z.R. agreed to go. Salhab’s first

      delivery was at his wife’s workplace in Brownsburg. Salhab directed Z.R. to

      duck down so that his wife would not see that Z.R. was with him, and Z.R.

      complied.


[6]   Salhab then drove to his next delivery at an assisted living facility in the 2800

      block of South Churchman Avenue in Marion County, Indiana. During the

      drive, Salhab asked Z.R. if she would have sex with him, and Z.R. refused.

      Upon arrival at the assisted living facility, Salhab drove to the back of the

      building and parked his van. Salhab climbed into the seat behind the driver’s

      seat and told Z.R. to join him. Z.R. complied, whereupon Salhab pulled down

      her pants and attempted to insert his penis in Z.R.’s vagina even though Z.R.

      repeatedly told Salhab not to do so.


[7]   Salhab also touched Z.R.’s chest with his hands, and he bit her chest and lips.

      Salhab told Z.R. to pull her pants up, which she did. Salhab moved Z.R. to the

      backseat passenger side of the van, where he forced her head and mouth onto

      his penis. Salhab then turned Z.R. on her stomach and rubbed his penis against

      her back above her buttocks until he ejaculated. Salhab gave Z.R. a napkin to

      clean herself and then exited the van to make his scheduled delivery inside the

      assisted living facility.




      Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020       Page 3 of 13
[8]   As soon as Salhab left the van, Z.R. called 911 and reported that she had been

      raped. When Salhab returned to the van after making his delivery, he was

      taken into custody by responding officers. Z.R. provided a statement to

      investigators who noted that her lip was so swollen that it impacted her ability

      to speak clearly. After receiving his Miranda advisements and signing a waiver

      of his rights, Salhab stated in a recorded interview that he was aware that Z.R.

      was seventeen years old. Salhab admitted that he had engaged in sexual

      intercourse and oral sex with Z.R. in his van and that he had rubbed his penis

      against her until he ejaculated. Salhab also admitted that he had penetrated

      Z.R.’s vagina and anus with his fingers, specifying that he had penetrated her

      anus with his finger because “he thought it would make her happy if he did

      that, that it make [sic] him cum[.]” (Transcript Vol. II, p. 216). Z.R.

      underwent a sexual assault examination. Swabs taken from Z.R.’s internal and

      external genitalia, anus, and a bitemark on her left breast showed the presence

      of Salhab’s DNA.


[9]   On November 2, 2018, the State filed an Information, charging Salhab with

      three Counts of Level 3 felony rape, one for forced sexual intercourse, one for

      forced oral sex, and one for forced digital penetration. The State also charged

      Salhab with Level 5 felony child seduction, Level 5 felony criminal

      confinement, and Level 6 felony child seduction. On November 14, 2019, the

      trial court convened Salhab’s two-day jury trial. The jury found Salhab guilty

      as charged.




      Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020       Page 4 of 13
[10]   On December 3, 2019, the trial court held Salhab’s sentencing hearing. Due to

       double jeopardy concerns, the trial court vacated Salhab’s convictions for Level

       5 felony child seduction and Level 5 felony criminal confinement. The trial

       court found as a mitigating circumstance that Salhab had no history of criminal

       convictions. The trial court found as aggravating circumstances that Salhab

       had caused Z.R. injury; Z.R. was in his care, custody and control at the time of

       the offenses as her de facto guardian; and the nature and circumstances of the

       offenses were aggravating. The trial court sentenced Salhab to eight years for

       each of the Level 3 felony rapes, with two years suspended from each of those

       individual sentences, and to one year for his Level 6 felony child seduction

       conviction. The trial court order Salhab to serve his three rape sentences

       consecutively because it believed “from the evidence that these were distinct

       acts” and because the “significant” aggravating circumstance of his having care,

       custody, and control over Z.R. merited the imposition of consecutive sentences.

       (Tr. Vol. III, p. 80). The trial court ordered Salhab to serve his one-year child

       seduction conviction concurrently, for an aggregate sentence of twenty-four

       years, and it ordered Salhab to serve three years of probation. Condition No.

       21 of Salhab’s probation order (Condition No. 21), prohibited him from, among

       other things, visiting “businesses that sell sexual devices or aids.” (Appellant’s

       App. Vol. III, p. 5).


[11]   Salhab now appeals. Additional facts will be provided as necessary.




       Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020       Page 5 of 13
                                DISCUSSION AND DECISION
                                          I. Continuous Crime Doctrine

[12]   Salhab contends that the continuous crime doctrine bars his conviction for rape

       by digital penetration. More specifically, Salhab argues that his conviction for

       rape by digital penetration cannot stand because there was no evidence that the

       offense occurred separately from his sexual intercourse oral sex offenses. We

       examine the issue of whether convictions run afoul of the continuous crime

       doctrine as one of pure law requiring a de novo review. Hines v. State, 30 N.E.3d

       1216, 1219 (Ind. 2015).


[13]   In Hines, our supreme court clarified that the


               continuous crime doctrine is a rule of statutory construction and
               common law limited to situations where a defendant has been
               charged multiple times with the same offense. The continuous
               crime doctrine does not seek to reconcile the double jeopardy
               implications of two distinct chargeable crimes; rather, it defines
               those instances where a defendant’s conduct amounts only to a
               single chargeable crime. The Legislature, not this Court, defines
               when a criminal offense is “continuous,” e.g. not terminated by a
               single act or fact but subsisting for a definite period and covering
               successive, similar occurrences.


       Id. (quotes and cites omitted). The court held that the doctrine only applies

       where the defendant “has been charged multiple times with the same

       ‘continuous’ offense.” Id. at 1220. The Hines court disagreed with Buchanan v.

       State, 913 N.E.2d 712, 720-21 (Ind. Ct. App. 2009), trans. denied, which applied

       the doctrine to the two distinct criminal offenses of false reporting and


       Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020         Page 6 of 13
       intimidation, and it noted that Nunn v. State, 695 N.E.2d 124, 125 (Ind. Ct.

       App. 1998), trans. denied, upon which Buchanan had relied, “too broadly

       paraphrased precedent when it stated, ‘[O]ur decisions have long recognized

       that actions which are sufficient in themselves to constitute separate criminal

       offenses may be so compressed . . . as to constitute a single transaction.’” Id. at

       1220.


[14]   Since Hines was decided, this court held in Dilts v. State, 49 N.E.3d 617, 631-32

       (Ind. Ct. App. 2015), trans. denied, that the continuous crime doctrine did not

       apply to bar convictions for two Counts of Class A felony child molestation,

       where one was charged as sexual intercourse and one was charged as deviate

       sexual conduct, and where the evidence showed that the molestation took place

       on different days. We also examined the continuous crime doctrine in Heckard

       v. State, 118 N.E.3d 823, 825 (Ind. Ct. App. 2019), trans. denied, where Heckard

       was convicted of two counts of Level 1 felony child molesting by other sexual

       conduct involving D.K. Count I of the Information alleged that Heckard

       performed oral sex on D.K., while Count II of the Information alleged that

       Heckard submitted to oral sex with D.K. Id. at 826. Both of these acts

       occurred during the same incident in the same location, a bathroom. Id. at 825.

       Heckard argued that his dual convictions could not stand, as his actions had

       been “so compressed in terms of time, place, and singleness of purpose and

       continuity of action as to constitute a single transaction” and that he had been

       convicted of the same continuous offense because he had been charged under




       Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020       Page 7 of 13
       the same ‘other sexual conduct’ portion of the child molesting statute. Id. at

       830.


[15]   Citing Dilts, we held that, because Heckard had been “convicted of two distinct,

       chargeable crimes,” the continuous crime doctrine should not apply. Id. at 831.

       However, even if the doctrine were arguably applicable because Heckard had

       been charged twice with child molesting for ‘other sexual conduct’, focusing on

       the specific actions alleged in the charging information, we concluded that the

       doctrine had not been violated, as Heckard had been convicted of “two distinct

       actions: one for performing a sexual act on D.K. and one for forcing D.K. to

       perform a sexual act.” Id. at 832. Accordingly, we held that “even when

       committed very close in time, two distinct child molestation offenses are

       separate and distinct crimes.” Id. In affirming Heckard’s convictions, we noted

       that “Heckard does not stand to benefit from the continuous crime doctrine for

       his conduct merely because the [L]egislature has described both separate,

       distinct actions under the same statute.” Id.


[16]   Here, Salhab was convicted of three Counts of Level 1 felony rape. Indiana

       Code section 35-42-4-1(a)(1) provides that rape occurs when a person


               knowingly or intentionally has sexual intercourse with another
               person or knowingly or intentionally causes another person to
               perform or submit to other sexual conduct [] when [] the other
               person is compelled by force or imminent threat of force[.]


[17]   ‘Sexual intercourse’ is defined as any penetration of the female sex organ by the

       male sex organ. I.C. § 35-31.5-2-302. ‘Other sexual conduct’ is defined as an

       Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020      Page 8 of 13
       act involving either a sex organ of one person and the mouth or anus of another

       person or the penetration of the sex organ or anus of a person by an object. I.C.

       § 35-31.5-2-221.5. The State charged Salhab with rape for subjecting Z.R. to

       sexual intercourse, oral sex, and digital penetration. Following Dilts and

       Heckard, we conclude that these offenses, as charged, were not three examples

       of the same offense but separate and distinct actions which were not barred by

       the continuous crime doctrine, even though they were all charged under the

       rape statute.


[18]   Salhab’s reliance on Flores v. State, 114 N.E.3d 522 (Ind. Ct. App. 2018), trans.

       not sought, does not persuade us otherwise. In Flores, the defendant was charged

       with two Counts of Level 4 felony child molesting for simultaneously rubbing

       his penis between C.G.’s buttocks and touching her vagina over her underwear.

       Id. at 523. Another panel of this court held that his convictions for both Counts

       violated the continuous crime doctrine. Relying on Hines, the Flores court

       reasoned that “these acts were closely connected in time, place, and continuity

       of action and therefore constitute a single transaction.” Id. at 524. However,

       the Hines court noted that the “time, place, and continuity of action” language

       came from its previous decisions analyzing whether a homicide occurring after

       a robbery could be considered “continuous” for purposes of the felony-murder

       statute, and the Hines court observed that decisions such as Nunn and Buchanan

       had overly-broadly paraphrased and misapplied that precedent. Hines, 30

       N.E.3d at 1220. Therefore, we conclude that our supreme court has clarified

       that whether offenses are closely connected in time, place, and continuity of

       Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020      Page 9 of 13
       action is not dispositive in continuous crime doctrine analysis outside the

       context of felony-murder.


[19]   Even if such factors were dispositive, Flores is not helpful to Salhab, because,

       contrary to his assertions, the State produced evidence at trial that showed that

       his digital penetration offense was not simultaneous with the sexual intercourse

       and oral sex offenses. Salhab told investigators that he ejaculated after he

       rubbed his penis above Z.R.’s buttocks and that he when he placed his finger in

       Z.R.’s anus, “it make [sic] him cum[.]” (Tr. Vol. II, p. 216). Given that there is

       nothing in the record indicating that Salhab ejaculated more than once during

       the offenses, this evidence showed that his digital penetration was not

       simultaneous with the sexual intercourse and oral sex offenses. Accordingly,

       we conclude that Salhab’s convictions for three counts of Level 3 felony rape

       did not violate the continuous crime doctrine.


                                             II. Consecutive Sentences

[20]   Salhab argues that the trial court abused its discretion when it ordered him to

       serve his sentences for his three rape convictions consecutively. So long as a

       sentence imposed by a trial court is within the statutory range for the offense, it

       is subject to review only for an abuse of discretion. Anglemyer v. State, 868

       N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). An

       abuse of the trial court’s sentencing discretion occurs if its decision is clearly

       against the logic and effect of the facts and circumstances before the court, or

       the reasonable, probable, and actual deductions to be drawn therefrom. Id., 868

       N.E.2d at 490. A trial court abuses its discretion when it fails to enter a

       Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020        Page 10 of 13
       sentencing statement at all, its stated reasons for imposing sentence are not

       supported by the record, its sentencing statement omits reasons that are clearly

       supported by the record and advanced for consideration, or its reasons for

       imposing sentence are improper as a matter of law. Id. at 490-91.


[21]   The sentencing range for a Level 3 felony is between three and sixteen years,

       with an advisory sentence of nine years. I.C. § 35-50-2-5(b). The trial court

       imposed a below-advisory sentence of eight years for each of Salhab’s Level 3

       felony rape convictions and ordered him to serve those individual sentences

       consecutively. Salhab essentially argues that the trial court’s imposition of

       below-advisory individual sentences shows that it found that the mitigators

       outweighed the aggravators, and, thus, that it was an abuse of the trial court’s

       discretion to impose consecutive sentences. However, Salhab’s argument is

       based on an inaccurate premise, as the trial court did not find that the

       mitigators outweighed the aggravators in his case; it made no statement

       regarding its balancing of the aggravators and mitigators. In addition, after the

       General Assembly adopted our present advisory sentencing scheme in 2005, a

       trial court is no longer obligated to identify and weigh the aggravating and

       mitigating circumstances upon rendering its sentence. Anglemyer, 868 N.E.2d at

       491. Rather, it may impose any sentence authorized by law once it has entered

       its sentencing statement. Id.; see also I.C. § 35-38-1-7.1(d). As a result, the

       relative weight ascribed by the trial court to any aggravating and mitigating

       circumstances is no longer subject to our review. Anglemyer, 868 N.E.2d at 491.

       Salhab’s argument relying on the pre-Anglemyer decision Marcum v. State, 725


       Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020        Page 11 of 13
       N.E.2d 852, 864 (Ind. 2000), is unpersuasive because it is based on the

       inaccurate assumption that the trial court was obligated to find that the

       aggravators outweighed the mitigators in order to impose consecutive

       sentences.


[22]   Salhab also argues that the trial court abused its discretion when it found that

       his position of care, custody, and control over Z.R. was an aggravating

       circumstance meriting the imposition of consecutive sentences for his rape

       convictions because the fact that he was Z.R.’s de facto guardian was an

       element of his Level 6 felony child seduction offense. We agree with Salhab

       that, as a general principle, a trial court abuses its discretion when it uses an

       element of the offense as an aggravating circumstance to justify an enhanced

       sentence. See Asher v. State, 790 N.E.2d 567, 570 (Ind. Ct. App. 2003) (finding

       the trial court’s consideration of Asher’s position of trust with his victim upon

       sentencing him for child seduction improper). However, Salhab’s care, custody

       and control of Z.R. was not an element of the rape offenses, so that general

       principle was not applicable to this case. We find no abuse of the trial court’s

       sentencing discretion.


                                               III. Condition No. 21

[23]   The trial court suspended six years of Salhab’s sentence and ordered him to

       serve three years of probation. Condition No. 21 ordered Salhab to refrain from

       visiting “businesses that sell sexual devices or aids.” (Appellant’s App. Vol. III,

       p. 5). Salhab argues that identical probation and parole conditions have already

       been held to be unconstitutionally overbroad, and we agree. See Bleeke v.

       Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020        Page 12 of 13
       Lemmon, 6 N.E.3d 907, 921 n.8 (Ind. 2014) (parole condition); Custance v. State,

       128 N.E.3d 8, 12 (Ind. Ct. App. 2019) (probation condition); Collins v. State, 911

       N.E.2d 700, 714 (Ind. Ct. App. 2009) (probation condition), trans. denied.

       Therefore, we reverse that portion of the trial court’s probation order and

       remand with instructions to the trial court to clarify that portion of Condition

       No. 21. See Custance, 128 N.E.3d at 12 (remanding identical probation

       condition to the trial court for clarification).


                                              CONCLUSION
[24]   Based on the foregoing, we conclude that Salhab’s conviction and sentencing

       for rape by digital penetration does not violate the continuous crime doctrine

       and the trial court did not abuse its discretion when it imposed consecutive

       sentences. However, we also conclude that the challenged portion of Condition

       No. 21 is unconstitutionally overbroad.


[25]   Affirmed in part, reversed in part, and remanded for further proceedings

       consistent with this opinion.


[26]   May, J. and Altice, J. concur




       Court of Appeals of Indiana | Opinion 19A-CR-3059 | August 10, 2020     Page 13 of 13
