MEMORANDUM DECISION                                                             FILED
                                                                           Dec 27 2017, 8:21 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                                    CLERK
                                                                            Indiana Supreme Court
precedent or cited before any court except for the                             Court of Appeals
                                                                                 and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Amy P. Payne                                           Curtis T. Hill, Jr.
Monroe County Public Defender                          Attorney General of Indiana
Bloomington, Indiana
                                                       George P. Sherman
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jacob L. Robertson,                                        December 27, 2017

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           53A04-1705-CR-1153

        v.                                                 Appeal from the Monroe Circuit
                                                           Court
State of Indiana,                                          The Honorable Marc R. Kellams,
                                                           Judge
Appellee-Plaintiff.
                                                           Trial Court Cause No.
                                                           53C02-1410-F1-995




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 53A04-1705-CR-1153 | December 27, 2017            Page 1 of 14
                                          Case Summary
[1]   In August of 2014, A.G. was attending Indiana University in Bloomington, and

      Appellant-Defendant Jacob Robertson was in Bloomington visiting a mutual

      acquaintance. A.G. and Robertson knew each other from high school and had

      previously engaged in a brief sexual relationship. After visiting one party, A.G.

      communicated with Robertson, expecting him to lead her to another party

      where their mutual acquaintance was. Instead, Robertson met A.G., led her to

      an isolated location, and told her that he would take her to the party only if she

      fellated him. When A.G. refused Robertson’s advances, he strangled her to

      unconsciousness. When A.G. came to, Robertson’s penis was exposed, and he

      was attempting to force it into her mouth. When A.G. threatened to scream,

      Robertson fled.


[2]   Following a bench trial, the trial court found Robertson guilty of Level 3 felony

      attempted rape, Level 5 felony criminal confinement, Class A misdemeanor

      battery, as well as Level 6 felony strangulation. The trial court imposed an

      aggregate sentence of eight years, with six years suspended to probation, eighty-

      five days to be executed in jail, and the remainder of the executed sentence to

      be served on home detention. Robertson argues that his convictions for

      criminal confinement, battery, and strangulation violated prohibitions against

      double jeopardy; the trial court abused its discretion in admitting certain

      evidence; and the admission of allegedly vouching testimony amounted to

      fundamental error. Because we agree with Robertson’s first contention but not

      the rest, we affirm in part and reverse his battery and strangulation convictions.

      Court of Appeals of Indiana | Memorandum Decision 53A04-1705-CR-1153 | December 27, 2017   Page 2 of 14
                            Facts and Procedural History
[3]   Robertson, A.G., and Alex Chambers knew each other from high school.

      Robertson and A.G. met when attending middle school and had a brief sexual

      relationship during their senior year of high school. After high school, A.G.

      and Chambers attended Indiana University in Bloomington, while Robertson

      attended Ivy Tech in Lawrence, Indiana. On August 23, 2014, A.G. and some

      friends had decided to attend a fraternity party, while Robertson had come to

      Bloomington with his then-girlfriend, intending to attend a different fraternity

      party with Chambers.


[4]   A.G. arrived at the party at around 10 or 11 p.m., drank three or four shots of

      an alcoholic beverage called “Taaka[,]” and left around 1:30 the next morning.

      Tr. Vol. I p. 38. A.G. had previously arranged to meet Chambers at his party

      and managed to secure a ride to the vicinity. A.G. had been in contact with

      Chambers until his telephone ran out of power, so, after one message from

      Chambers sent from Robertson’s telephone, she now communicated with

      Robertson. A.G. was unfamiliar with her location, so she sent her location to

      Robertson in a text message. Robertson called A.G. and indicated that he

      would come find her.


[5]   At 2:10 a.m., A.G. noticed Robertson walking in her direction. Robertson

      hugged A.G. and told her that he missed “hanging out” with her. Tr. Vol. I p.

      51. Robertson grabbed A.G.’s buttocks, but A.G. pulled his hands off of her

      and told him to stop. A.G. asked Robertson where the party was, and


      Court of Appeals of Indiana | Memorandum Decision 53A04-1705-CR-1153 | December 27, 2017   Page 3 of 14
      Robertson indicated that he was not sure. Robertson stated that he thought the

      party was in the direction of a nearby bell tower and started to lead A.G. that

      way. Robertson was “saying really sexual things,” and A.G. could “tell he was

      really intoxicated because he … was stumbling and slurring his words.” Tr.

      Vol. I p. 51. Once they reached the bell tower, it was apparent that Robertson

      did not know where he was going, so A.G. sat down and told him to try to find

      out where they needed to go. A.G. attempted to call several persons, none of

      whom answered.


[6]   When Robertson saw that A.G. was trying to call Chambers, he told her that if

      she wanted to find out where the party was, she had to “give him head.” Tr.

      Vol. I p. 52. A.G. declined, but Robertson pleaded with her and told her that

      he would not tell anyone if she complied. A.G. again declined. While

      Robertson was talking to A.G., he was touching his penis through his pants and

      talking about “how he missed it.” Tr. Vol. I p. 53. After A.G. rejected

      Robertson’s requests for oral sex a third time, he grabbed her by the throat and

      “started squeezing really hard.” Tr. Vol. I p. 54. A.G. tried to remove

      Robertson’s fingers from her neck, but Robertson responded by digging “his

      fingers and his fingernails deeper into the side of [her] neck[.]” Tr. Vol. I p. 53.


[7]   A.G. lost consciousness, and when she came to, she saw that Robertson had

      removed his penis from his pants. Robertson held onto A.G.’s neck with one

      hand, while he used his other hand to try to pry open her mouth. Robertson

      moved his penis towards A.G.’s mouth and tried to force his penis into her

      mouth, but A.G. kept her teeth closed. A.G. leaned back and told Robertson to

      Court of Appeals of Indiana | Memorandum Decision 53A04-1705-CR-1153 | December 27, 2017   Page 4 of 14
      stop. Robertson started to squeeze A.G.’s neck again, and A.G. told him that if

      he did not stop, she would scream. At that time, Robertson ran away. A.G.

      managed to obtain a ride back to her dormitory, where one of her friends

      photographed the red marks Robertson left on her neck.


[8]   On August 26, 2014, Indiana University Police Detective Rebecca Ann

      Schmuhl interviewed Robertson, an interview that was videotaped. Robertson

      acknowledged that A.G. had communicated with him by phone on the night of

      the incident. Robertson stated that A.G. was “blowing up” his phone with text

      messages and had also called him to find out the location of the party that

      Chambers was attending. Tr. Vol. I p. 156. Robertson indicated that he had

      ignored A.G., but that while he was walking to another party, he saw her on the

      street, and she started screaming at him. Robertson stated that he told A.G.

      that Chambers did not want to see her, and that she had responded by

      screaming, crying and then walking away. Robertson indicated he had briefly

      spoken with a friend named Clay Hurst and then returned to the original party

      where Chambers and his girlfriend were. When Detective Schmuhl asked

      Robertson about A.G.’s claim that Robertson had choked her and tried to force

      her to perform oral sex, Robertson stated, “Wait, oral sex, what does that mean

      like?” Tr. Vol. I p. 159. Robertson later acknowledged that he and A.G. had

      engaged in oral sex previously, but claimed he did not know what the detective

      meant when she referred to oral sex.


[9]   On October 21, 2014, the State charged Robertson with Level 1 felony

      attempted rape, Level 3 felony criminal confinement, Level 5 felony battery

      Court of Appeals of Indiana | Memorandum Decision 53A04-1705-CR-1153 | December 27, 2017   Page 5 of 14
       resulting in serious bodily injury, and Level 6 felony strangulation. A bench

       trial was held on September 29, 2016, and Adrian “Clay” Hurst testified that he

       knew Robertson from high school and that on August 23, 2014, he and

       Robertson had discussed meeting up at a party that Hurst was attending at

       Stadium Crossing in Bloomington. Hurst further testified that Robertson never

       made it to that party, but Robertson did ask Hurst “to come to Court and lie

       about seeing him that night[.]” Tr. Vol. I p. 128.


[10]   The trial court found Robertson guilty of the lesser included offenses of Level 3

       felony attempted rape, Level 5 felony criminal confinement, Class A

       misdemeanor battery, as well as Level 6 felony strangulation. On April 25,

       2017, the trial court imposed an aggregate sentence of eight years, with six years

       suspended to probation, eighty-five days to be executed in jail, and the

       remainder of the executed sentence to be served on home detention.


                                 Discussion and Decision
                                        I. Double Jeopardy
[11]   Robertson contends that his convictions for criminal confinement, battery, and

       strangulation violate Indiana prohibitions against double jeopardy. In

       Richardson v. State, 717 N.E.2d 32 (Ind. 1999), the Indiana Supreme Court held

       “that two or more offenses are the ‘same offense’ in violation of Article I,

       Section 14 of the Indiana Constitution, if, with respect to … the actual evidence

       used to convict, the essential elements of one challenged offense also establish

       the essential elements of another challenged offense.” Id. at 49–50.

       Court of Appeals of Indiana | Memorandum Decision 53A04-1705-CR-1153 | December 27, 2017   Page 6 of 14
               To show that two challenged offenses constitute the “same
               offense” in a claim of double jeopardy, a defendant must
               demonstrate a reasonable possibility that the evidentiary facts
               used by the fact-finder to establish the essential elements of one
               offense may also have been used to establish the essential
               elements of a second challenged offense.
       Id. at 53. Merely a remote or speculative possibility is not enough; rather, the

       record must establish that the jury used the same evidentiary facts to establish

       the essential elements of the two offenses. Hopkins v. State, 759 N.E.2d 633, 640

       (Ind. 2001) (citations omitted). “In determining the facts used by the fact-finder

       to establish the elements of each offense, it is appropriate to consider the

       charging information, jury instructions, and arguments of counsel.” Lee v. State,

       892 N.E.2d 1231, 1234 (Ind. 2008) (citing Spivey v. State, 761 N.E.2d at 832

       (Ind. 2002); Richardson, 717 N.E.2d at 54 n.48).


[12]   The State’s charging information for criminal confinement alleged that

       “Robertson did knowingly or intentionally confine [A.G.] without the consent

       of [A.G.], said act resulting in serious bodily to wit: loss of consciousness.”

       Appellant’s App. Vol. II p. 12. For the battery charge, the State alleged that

       “Robertson did knowingly or intentionally touch [A.G.] in a rude, insolent, or

       angry manner, resulting in serious bodily injury, to wit: loss of consciousness.”

       Appellant’s App. Vol. II p. 13. For strangulation, the State alleged that

       “Robertson in a rude, insolent, or angry manner, did knowingly or intentionally

       apply pressure to the throat or neck of [A.G.] in a manner that impeded normal

       breathing or blood circulation of [A.G.]” Appellant’s App. Vol. II p. 13. In




       Court of Appeals of Indiana | Memorandum Decision 53A04-1705-CR-1153 | December 27, 2017   Page 7 of 14
       summary, the State alleged and ultimately proved the commission of each

       offense above with evidence of Robertson’s act of strangulation of A.G.


[13]   The State concedes that there is a reasonable possibility that the trial court

       relied on the same actual evidence to sustain Robertson’s convictions for

       criminal confinement, battery, and strangulation but argues that we should

       remand to give the trial court a chance to clarify that it did not, in fact, rely on

       the same actual evidence to sustain all three convictions. The State, however,

       does not identify any evidence beyond Robertson’s strangulation of A.G. that

       could even arguably support his battery and strangulation convictions, and our

       review of the record does not reveal any. As such, we conclude that the proper

       remedy in this case is the vacation of Robertson’s convictions for battery and

       strangulation. See Richardson v. State, 717 N.E.2d 32, 55 (Ind. 1999) (clarifying

       that the convictions with “the less severe penal consequences” should be

       vacated in the event of a double jeopardy violation). Because the trial court

       ordered the sentences for battery and strangulation to run concurrently with the

       sentences for attempted rape and criminal confinement, Robertson’s aggregate

       sentence does not change.


                                          II. Text Messages
[14]   Robertson contends that the trial court abused its discretion in admitting

       exhibits relating to the text message exchange between Robertson and A.G.

       before his attack on her. In general, the admissibility of evidence is within the

       sound discretion of the trial court. Curley v. State, 777 N.E.2d 58, 60 (Ind. Ct.


       Court of Appeals of Indiana | Memorandum Decision 53A04-1705-CR-1153 | December 27, 2017   Page 8 of 14
       App. 2002), trans. denied. We will reverse a trial court’s decision on the

       admissibility of evidence only upon a showing of an abuse of that discretion.

       Id. An abuse of discretion may occur if the trial court’s decision is clearly

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

       the court has misinterpreted the law. Id.


[15]   Even if we assume that exhibits regarding the text messages were erroneously

       admitted, any error can only be considered harmless. An error will be found

       harmless if its probable impact on the factfinder, in light of all of the evidence in

       the case, is sufficiently minor so as not to affect the substantial rights of the

       parties. Gault v. State, 878 N.E.2d 1260, 1267–68 (Ind. 2008); Sylvester v. State,

       698 N.E.2d 1126, 1129 (Ind. 1998). A review of the text messages shows that

       the majority of the messages were from A.G.’s phone, with most of them either

       asking for directions or stating A.G.’s location. (State’s Ex. 2). Of the twenty-

       one text messages that were admitted, fifteen were from A.G.’s phone. (St. Ex.

       2). The remaining six messages consisted of an initial message stating, “This is

       Alex my phone died. The house is on Jordan by 17th”; followed by five other

       messages interspersed throughout A.G.’s messages. The five messages stated,

       “Who’s this[,]” “Okay what],]” “What[,]” “Hey call me real quick I need to ask

       you somethugb [sic]![,]” and “Something[.]” State’s Ex. 2. There is nothing in

       the text messages that is incriminating, and Robertson himself admitted in his

       statement to police that he had been in communication with A.G. In light of

       A.G.’s testimony; the physical evidence that she had, in fact, been attacked; and




       Court of Appeals of Indiana | Memorandum Decision 53A04-1705-CR-1153 | December 27, 2017   Page 9 of 14
       Robertson’s request to Hurst that he lie in court for him, any error in the

       admission of the text messages could only be considered harmless.


                               III. Transcript of Robertson’s
                              Videotaped Statement to Police
[16]   Robertson alleges the trial court erred in admitting a transcript of his videotaped

       statement to police. (Appellant’s Brief at 29-30). As mentioned above, a trial

       court has broad discretion in ruling on the admissibility of evidence, and its

       ruling will be disturbed only where it is shown that the court abused that

       discretion. Curley, 777 N.E.2d at 60. When Robertson’s videotaped statement,

       which was identified as State’s Exhibit 13, and the transcript of the statement,

       which was identified as State’s Exhibit 14, were offered, Robertson objected to

       the admission of the transcript and the following discussion occurred:


               TRIAL COURT: Okay, I mean, I guess the most important
               thing is the, I’m gonna be watching the DVD and during the
               trial, right?
               PROSECUTOR: Right, and it’s just used to assist you, Your
               Honor. I mean, we can just offer it for demonstrative purposes to
               assist you as you’re listening to, um, the audio tape, video tape.
               TRIAL COURT: You’re okay with the DVD?
               DEF. COUNSEL: I’m fine with the DVD.
               TRIAL COURT: Well, well let’s admit the DVD and I probably
               won’t even need the transcript if I listen to the video myself. But
               if I, if I have someplace that I have some confusion about, we’ll
               talk about it. How’s that?
               DEF. COUNSEL: Fair enough.
       Tr. Vol. I p. 144.

       Court of Appeals of Indiana | Memorandum Decision 53A04-1705-CR-1153 | December 27, 2017   Page 10 of 14
[17]   Even assuming, arguendo, that the transcript of Robertson’s videotaped

       statement was erroneously admitted, we fail to see how that could have

       prejudiced him in any way. After all, the trial court watched Robertson’s

       videotaped statement, which was admitted without objection. At worst, a

       transcript of the statement would have been cumulative of the videotaped

       statement. “[A]n error in the admission of evidence is harmless if the

       erroneously admitted evidence is cumulative of other evidence appropriately

       admitted.” Collins v. State, 826 N.E.2d 671, 679 (Ind. Ct. App. 2005), trans.

       denied. Any error the trial court may have committed in relation to the

       transcript of Robertson’s statement could only be considered harmless.


                                             IV. Vouching
[18]   Robertson challenges the testimony of several witnesses based on Indiana

       Evidence Rule 704(b), which provides that “[w]itnesses may not testify to

       opinions concerning intent, guilt, or innocence in a criminal case; the truth or

       falsity of allegations; whether a witness has testified truthfully; or legal

       conclusions.” Robertson did not object on this basis at trial and has therefore

       waived the issue for appellate review. Robertson attempts to avoid the effects

       of his waiver by arguing that the admission of the testimony amounts to

       fundamental error.


[19]   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


       Court of Appeals of Indiana | Memorandum Decision 53A04-1705-CR-1153 | December 27, 2017   Page 11 of 14
       fundamental due process.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010)

       (quoting 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.” Id. (quoting Clark

       v. State, 915 N.E.2d 126, 131 (Ind. 2009)). This exception is available only in

       “egregious circumstances.” Id. (quoting Brown v. State, 799 N.E.2d 1064, 1068

       (Ind. 2003)); see also Absher v. State, 866 N.E.2d 350, 355 (Ind. Ct. App. 2007).


[20]   Robertson initially alleges that Nicole Downs and Kelly Evans, other residents

       of A.G.’s dormitory, vouched for A.G. by “insisting on the victim’s self-

       assessment for further injury even after A.G. said that she had not been

       raped[.]” Appellant’s Brief p. 24. In the portion of Downs’s testimony to

       which Robertson refers, Downs stated that she had suggested that A.G. “check

       herself out” for injuries after A.G. said that she had lost consciousness. Tr. Vol.

       I p. 93. Similarly, Evans testified that after A.G. told her what happened,

       Evans and Downs told A.G. that “she should go check herself to make sure

       everything was okay.” Tr. Vol. I p. 102. We conclude that Evans’s and

       Downs’s testimony did not amount to impermissible vouching. Downs testified

       that A.G. was “in hysterics”; Evans testified that she was “shaking, crying,

       [and] clearly upset”; and both witnesses testified that they saw the marks on

       A.G.’s neck, so recommendations that she not ignore them seems perfectly

       reasonable, however she acquired them. Tr. Vol. I pp. 91, 101. Quite simply,

       Robertson does not point to any testimony by Downs or Evans stating that they

       believed A.G. or expressing an opinion as to the truth of A.G.’s statements.


       Court of Appeals of Indiana | Memorandum Decision 53A04-1705-CR-1153 | December 27, 2017   Page 12 of 14
       Vouching occurs when a witness testifies that she believes another witness or

       opines that what another person has said is true, and that did not occur here.

       See Gutierrez v. State, 961 N.E.2d 1030, 1033-1035 (Ind. Ct. App. 2012)

       (determining that a case manager’s testimony that she “absolutely” believed

       what the victim had said, as well as a sexual-assault nurse’s testimony that she

       “believe[d] that the victim was telling the truth,” was impermissible vouching

       testimony).


[21]   Robertson also claims that Detective Short vouched for A.G. by testifying as

       follows: “if there’s cases that need followed up on or they need more attention,

       investigator’s then given that case[;]” “I could tell that it was not just a simple

       battery case, that it was something more than that[;]” and that after speaking

       with A.G., he collected evidence from her room and prepared a report, which

       he forwarded to his supervisor. Tr. Vol. 1 pp. 131, 135. Again, none of these

       statements amounted to vouching. Detective Short merely indicated that he

       pursued his investigation. While this was presumably, at least in part, because

       of what A.G. told Detective Short, this is not the same as opining that she was

       telling the truth, only that what she said was worth investigating. Robertson

       has failed to show any error due to impermissible vouching, much less

       fundamental error.



                                               Conclusion
[22]   We conclude that Robertson’s convictions for battery and strangulation violate

       prohibitions against double jeopardy and consequently vacate those

       Court of Appeals of Indiana | Memorandum Decision 53A04-1705-CR-1153 | December 27, 2017   Page 13 of 14
       convictions. We also conclude that Robertson has failed to show that the trial

       court committed any harmful error in admitting evidence of text messages

       exchanged by A.G. and Robertson or the transcript of Robertson’s videotaped

       statement to police. Finally, we conclude that Robertson has failed to show the

       admission of allegedly vouching testimony amounted to error, much less

       fundamental error.


[23]   We affirm the judgment of the trial court in part and reverse in part.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A04-1705-CR-1153 | December 27, 2017   Page 14 of 14
