                                                    Mar 19 2014, 6:35 am
FOR PUBLICATION



ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

MICHAEL J. KYLE                              GREGORY F. ZOELLER
Baldwin Adams & Kamish                       Attorney General of Indiana
Franklin, Indiana

                                             KELLY A. MIKLOS
                                             Deputy Attorney General
                                             Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

SHAWN LAWRENCE CORBALLY,                     )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )      No. 41A04-1304-CR-175
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff,                    )


                    APPEAL FROM THE JOHNSON CIRCUIT COURT
                         The Honorable K. Mark Loyd, Judge
                             Cause No. 41C01-1301-FA-1


                                   March 19, 2014

                             OPINION - FOR PUBLICATION

BARNES, Judge
                                       Case Summary

       Shawn Corbally appeals his convictions and 270-year sentence for Class A felony

burglary, Class A felony rape, four counts of Class A felony criminal deviate conduct, and

two counts of Class B felony criminal confinement. We affirm the convictions but revise

the sentence to a term of 165 years.

                                          Issues

       The reordered and restated issues before us are:

              I.     whether the trial court properly allowed a police
                     investigator to relate the contents of her interview with
                     the victim; and

              II.    whether Corbally’s sentence is inappropriate.

                                           Facts

       The evidence most favorable to the convictions is that sometime after 4:00 a.m. on

the morning of July 29, 2012, M.R. was asleep in her Greenwood apartment when she was

awoken by a man—Corbally—getting on top of her in her bed. Corbally, who was armed

with a knife, forced M.R. to engage in numerous sex acts, including vaginal, oral, and anal

sex, over the next two hours while making threats to harm M.R. or her children. M.R.’s

one-year-old child was asleep in bed with M.R., while her nine-year-old child was asleep

in a different room. Corbally insisted that M.R. not look at his face. However, M.R.

noticed that he had a sleeve tattoo on his left arm depicting bricks and that he was wearing

camouflage cargo shorts.

       After a while, Corbally forced M.R. to go outside to the patio and to engage in

additional sex acts. At one point, he placed the handle of the knife in her vagina. M.R.

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hurt her knees when being forced to kneel on the patio to perform oral sex. By this point

it was nearly daylight and she was able to see his face.

       Corbally then forced M.R. to go to a tree near a jogging trail and told her that she

was going to have to perform oral sex on him one more time before he let her go. Because

the tree was in a fairly secluded area, M.R. was afraid that Corbally was going to kill her

and leave her body there. Before anything more happened, however, M.R. saw another

man standing outside and, after distracting Corbally by pointing the man out to him, she

managed to run back to her apartment, lock the door, and eventually contact police.

       M.R. was taken to the hospital, where she was examined and forensic samples were

collected. Based on the description M.R. provided to police—including the fact that her

assailant had a tattoo of bricks on his left arm—police soon apprehended Corbally—who

has a tattoo of bricks on his left arm—and learned that he had been staying at a residence

very near M.R.’s apartment on the night of the attack. M.R. subsequently picked Corbally

out of a photo lineup as being her assailant. Police recovered a duffle bag belonging to

Corbally and found a pair of camouflage cargo shorts in them. DNA testing revealed the

presence of Corbally’s seminal fluid in the samples collected from M.R. after the attack

and also revealed the presence of both Corbally’s and M.R.’s DNA on the camouflage

cargo shorts.

       The State charged Corbally with Class A felony burglary resulting in bodily injury,

Class A felony rape, four counts of Class A felony criminal deviate conduct, and two counts

of Class B felony criminal confinement. At Corbally’s jury trial, the State first presented

the testimony of M.R. During cross-examination, Corbally’s attorney challenged M.R.’s

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ability to accurately identify Corbally as her assailant and questioned the validity of the

photo lineup in which she identified Corbally, but there was no accusation that M.R. had

fabricated her testimony. Corbally’s attorney also argued during trial that police had acted

too hastily in apprehending Corbally and that the DNA evidence had somehow been

contaminated or compromised.

       After M.R. testified, the State also called as a witness the lead investigator in the

case for the Greenwood Police Department, Patti Cummings. During direct examination,

the State asked Cummings to relate what M.R. had told her about the attack during an

interview conducted the day after it occurred. Corbally’s attorney objected to this line of

questioning, asserting that it was asking Cummings to relate hearsay. Without waiting for

a response by the State, the trial court stated: “Are you going to stipulate to the credibility

of the alleged victim in this case? Because if you are going to challenge her credibility

then certainly the state has a right to establish that her versions of the events in question

are consistent.” Tr. p. 424. Corbally’s attorney stated that she could not stipulate to M.R.’s

credibility and withdrew her objection. Cummings then proceeded to relate the entirety of

M.R.’s statements to her, which were consistent with M.R.’s testimony.

       The jury returned guilty verdicts against Corbally on all eight counts. The trial court

imposed sentences of forty-five years for each of the six Class A felony convictions and

ordered them to be served consecutively for a total executed sentence of 270 years. It also

imposed sentences of twenty years each for the two Class B felony convictions but ordered

them served concurrent with each other and the Class A felony sentences. Corbally now

appeals.

                                              4
                                         Analysis

                                 I. Admission of Hearsay

       The first issue we address is whether the trial court properly allowed Cummings to

relate hearsay statements of M.R. We review trial court rulings on the admission of

evidence for an abuse of discretion. Williams v. State, 997 N.E.2d 1154, 1160 (Ind. Ct.

App. 2013). “A trial court abuses its discretion only if its decision is clearly against the

logic and effect of the facts and circumstances before it, or if the court has misinterpreted

the law.” Id.

       The State contends that Corbally waived any objection to Cummings’s testimony

because, although counsel initially lodged an objection, she withdrew that objection after

being asked by the trial court whether she would “stipulate” to M.R.’s credibility as a

witness. Tr. at 424. We decline to find waiver under these circumstances. When counsel

lodged a hearsay objection to Cummings’s testimony, the trial court sua sponte gave clear

indication that it would overrule that objection unless counsel stipulated to M.R.’s

credibility. At that point, counsel reasonably may have believed it would have been

pointless to maintain her objection because she was unwilling to stipulate to M.R.’s

credibility. A central purpose of requiring contemporaneous objections to evidence is to

permit a trial court the opportunity to prevent or remedy prejudice to a party without the

waste of time and resources associated with the reversal of a conviction or judgment.

N.W.W. v. State, 878 N.E.2d 506, 510 (Ind. Ct. App. 2007), trans. denied.                The

contemporaneous objection rule also prohibits parties from sitting idly by and appearing to

consent to an offer of evidence, only to “cry foul” when the outcome goes against him. Id.

                                             5
at 509. Here, Corbally’s counsel indicated she did not “consent” to Cummings’s hearsay

testimony. Also, the trial court was alerted to a hearsay concern with the testimony, and it

effectively ruled that it would allow the testimony unless counsel stipulated to M.R.’s

credibility. To the extent Corbally’s counsel then withdrew her objection, it was hardly a

“consent” to Cummings’s testimony, as opposed to merely refusing to accept the trial

court’s precondition for excluding the testimony.

       Most importantly, the trial court’s belief that the State was permitted to introduce

prior consistent statements of M.R. into evidence, simply because counsel was unwilling

to stipulate to M.R.’s credibility as a witness, was a misinterpretation of the law. In 1975,

the Indiana Supreme Court established a rule “that prior out-of-court statements, not under

oath, were admissible as substantive evidence if the declarant was present and available for

cross examination at the time of the admission of such statements.” Modesitt v. State, 578

N.E.2d 649, 651 (Ind. 1991) (citing Patterson v. State, 263 Ind. 55, 324 N.E.2d 482 (1975)).

In Modesitt, the court abrogated this rule because of various additional requirements and

limitations that had been added to it. In its place, the court followed Federal Rule of

Evidence 801(d)(1) and held:

              [F]rom this point forward, a prior statement is admissible as
              substantive evidence only if the declarant testifies at trial and
              is subject to cross examination concerning the statement, and
              the statement is (a) inconsistent with the declarant’s testimony,
              and was given under oath subject to the penalty of perjury at a
              trial, hearing, or other proceeding, or in a deposition, or (b)
              consistent with the declarant’s testimony and is offered to rebut
              an express or implied charge against the declarant of recent
              fabrication or improper influence or motive, or (c) one of
              identification of a person made after perceiving the person.


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Id. at 653-54. The court stated that adoption of this rule was necessary to prevent “abuses”

in the use of a witness’s prior consistent statements, such as by bolstering “the testimony

of what might otherwise be regarded as a weak witness” and prohibiting “[n]umerous

witnesses [from testifying] to the same statement given by a particular witness, thereby

creating the prohibited drumbeat of repetition.” Id. at 653. Effective January 1, 1994, the

court adopted Indiana Evidence Rule 801(d)(1) governing substantive admission of prior

out-of-court statements by a witness, which was identical to the language in Modesitt and

was still in effect at the time of Corbally’s trial.1

       In applying the Modesitt rule and Indiana Evidence Rule 801(d)(1) governing

substantive use of prior consistent statements by a witness, and in particular whether there

has been an “express or implied charge . . . of recent fabrication or improper influence or

motive,” cases have made clear that there is a difference between merely challenging a

witness’s credibility versus making an express or implied charge of fabricated testimony

or improper influence or motive. See Horan v. State, 682 N.E.2d 502, 511-12 (Ind. 1997).

If there has only been general impeachment of a witness’s credibility, then prior consistent

statements by the witness are hearsay and not admissible as substantive evidence. Id.

Also, general attacks upon a witness’s memory do not constitute a charge that the witness

fabricated testimony and do not permit the admission of prior consistent statements by the

witness. Thomas v. State, 749 N.E.2d 1231, 1233-34 (Ind. Ct. App. 2001); see also Lovitt

v. State, 915 N.E.2d 1040, 1043 (Ind. Ct. App. 2009) (holding that challenging witness’s


1
  As with the entirety of our evidence rules, Indiana Evidence Rule 801(d)(1) was slightly re-worded
effective January 1, 2014, but the changes affect only style and not substance.

                                                 7
recall of events due to consumption of alcohol was not a charge of fabricated testimony or

improper influence or motive and did not permit introduction of prior consistent statements

by the witness). In light of these holdings, it is clear the trial court erred in telling

Corbally’s attorney that any challenge to M.R.’s credibility allowed the State to introduce

prior consistent statements by her.

       We also conclude Corbally’s attorney did not make any express or implied charge

that M.R. fabricated her testimony or that she was acting under improper influence or

motive. In cross-examination, counsel asked M.R. about her migraine headaches and

consumption of alcohol and migraine medication before the attack, suggesting they could

have affected her ability to accurately identify Corbally. Counsel also contended that the

photo line-up in which M.R. identified Corbally was unduly suggestive because he was the

only one of six men pictured without a shirt, and M.R. had recalled that her assailant was

not wearing a shirt. This general attack upon M.R.’s credibility and ability to accurately

identify her assailant did not permit the State to “bolster” M.R.’s testimony by introduction

of her prior consistent statements through Cummings’s testimony.

       The State posits that Cummings’s testimony relating M.R.’s statements was

admissible as non-hearsay “course-of-investigation” evidence, introduced to counteract

Corbally’s contention that the police acted too hastily in apprehending him. “When the

admissibility of an out-of-court statement received by a police officer during the course of

an investigation is challenged as hearsay, the court must first determine whether the

testimony describes an out-of-court statement asserting a fact susceptible of being true or

false.” Hernandez v. State, 785 N.E.2d 294, 298 (Ind. Ct. App. 2003), trans. denied. If the

                                             8
purpose of the introducing an out-of-court statement received by a police officer is to prove

the fact asserted, and the statement does not qualify as a non-hearsay statement under

Evidence Rule 801(d), and there are no applicable hearsay exceptions, the statement is

inadmissible hearsay. Id. If the statement is offered for a purpose other than to prove the

truth of the matter asserted, courts must consider whether the fact to be proved is relevant

to some issue in the case and whether the danger of unfair prejudice that may result from

its admission outweighs its probative value. Id.

       This court, our supreme court, and federal courts frequently have been skeptical of

attempts by the State to introduce police officer testimony relating out-of-court statements

under the guise of “course-of-investigation” evidence. See Kindred v. State, 973 N.E.2d

1245, 1253-54 (Ind. Ct. App. 2012), trans. denied. “While the need for this evidence ‘is

slight, the likelihood of misuse [is] great.’” Id. at 153 (quoting 2 McCormick on Evidence §

249 (4th ed. 1992)).      “‘Statements offered to show background or the course of

the investigation can easily violate a core constitutional right, are easily misused, and are

usually no more than minimally relevant.’” Id. at 1255 (quoting Jones v. Basinger, 635

F.3d 1030, 1046 (7th Cir. 2011)).

       Here, at the very most, some of Cummings’s testimony relating M.R’s description

of her assailant might have been related to the course-of-investigation work that led to

Corbally’s apprehension. Such evidence also might be related to M.R.’s identification of

Corbally shortly after the incident and admissible under Indiana Evidence Rule

801(d)(1)(C). But Cummings’s testimony relating M.R.’s statements went far beyond that.

Instead, Cummings almost completely rehashed the grisly details of the crimes as already

                                             9
testified to by M.R. Such evidence was entirely irrelevant to the course of the investigation,

and it was not admissible as “course-of-investigation” evidence. The trial court abused its

discretion in admitting this evidence.

       That said, the erroneous introduction of a witness’s prior consistent out-of-court

statements is subject to harmless error analysis. See Willis v. State, 776 N.E.2d 965,

968 (Ind. Ct. App. 2002). When reviewing whether the erroneous introduction of evidence

was harmless, we must consider whether the evidence was likely to have substantially

swayed the jury’s verdict. Baker v. State, 997 N.E.2d 67, 72 (Ind. Ct. App. 2013). The

improper admission of evidence is harmless error if we are satisfied that the conviction is

supported by such substantial independent evidence of guilt that there is little likelihood

the challenged evidence contributed to the conviction. Id. In deciding whether an error

contributed to a verdict, we must determine whether the erroneously admitted evidence

was unimportant in relation to everything else the jury considered on the issue in question.

Id.

       Even if we consider that there was some improper “bolstering” of M.R.’s credibility

through Cummings’s testimony, there is substantial independent evidence of Corbally’s

guilt in this case. Corbally’s main attack upon M.R’s credibility was her ability to

accurately pick him out of an allegedly suggestive photo line-up. However, putting aside

M.R.’s ability to recall Corbally’s face, she also clearly recalled the distinctive brick wall

tattoo sleeve on her assailant’s left arm, which Corbally had. And, most crucially, there is

DNA evidence definitively tying Corbally to these crimes. Specifically, his DNA was

found in seminal fluid collected from M.R. shortly after the attack, and M.R.’s DNA was

                                             10
found on camouflage shorts belonging to Corbally that matched M.R.’s description of what

her assailant was wearing. Although Corbally made some attempts at trial to attack the

reliability of the DNA evidence, he fails to even acknowledge in his brief that such

evidence existed, let alone that there is any reason to doubt its reliability. In sum, there is

such overwhelming independent evidence of Corbally’s guilt that we can safely conclude

that the erroneous introduction of M.R.’s prior consistent statements into evidence through

Cummings’s testimony was harmless.

                                        II. Sentence

       We now turn to whether Corbally’s 270-year sentence is inappropriate. Under

Indiana Appellate Rule 7(B), we may revise any sentence authorized by statute if we deem

it to be inappropriate in light of the nature of the offense and the character of the offender.

Although Rule 7(B) does not require us to be “extremely” deferential to a trial court’s

sentencing decision, we still must give due consideration to that decision. Rutherford v.

State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also understand and recognize the

unique perspective a trial court brings to its sentencing decisions. Id. “Additionally, a

defendant bears the burden of persuading the appellate court that his or her sentence is

inappropriate.” Id.

       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

                                              11
counts, or length of the sentence on any individual count.” Id. Whether a sentence is

inappropriate ultimately turns on the culpability of the defendant, the severity of the crime,

the damage done to others, and myriad other factors that come to light in a given case. Id.

at 1224. 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 facts here are undisputedly heinous, as Corbally admits in his brief. He broke

into a woman’s home in the middle of the night and, while armed with a knife, forced her

to perform numerous sexual acts over the course of approximately two hours. Although it

does not appear M.R’s children actually witnessed or perceived any of the acts, Corbally

did commit them in the children’s presence. In fact, the one-year-old was asleep next to

M.R. for some of the acts. There also is nothing positive to say about Corbally’s

character—quite the opposite. In 2000, he was convicted of two counts of Class A felony

rape, and he was on probation for those offenses when he committed these acts against

M.R. Clearly, Corbally is a threat to society and for the sake of public safety, he must be

incarcerated for a very lengthy period of time.

       Regardless, we are not blind to the fact that Corbally received an extremely lengthy

sentence. Rule 7(B) implements this court’s authority under Article 7, Section 6 of the

Indiana Constitution to provide for “review and revision of sentences for defendants in all

criminal cases.” In exercising this review power, there is no requirement that we compare

a defendant’s sentence with sentences received by other defendants in similar cases.

                                             12
Knight v. State, 930 N.E.2d 20, 22 (Ind. 2010). However, comparison of sentences among

those convicted of the same or similar offenses can be a proper consideration when

deciding whether a particular sentence is inappropriate. Id. Our supreme court has also

stated, “Of course, a respectable legal system attempts to impose similar sentences on

perpetrators committing the same acts who have the same backgrounds.” Serino v. State,

798 N.E.2d 852, 854 (Ind. 2003). The Serino court observed that “very long sentences”

may arise when a prosecutor has filed a “particularly muscular” charging information, by

electing “to charge multiple aspects of the same event as separate counts defined by

separate criminal statutes.” Id. at 857. The court also noted that the commission of crimes

against multiple victims may warrant lengthier sentences. Id.

       In researching reported cases decided since adoption of the “inappropriate” standard

for reviewing sentences, we have found that the longest affirmed sentence imposed for a

single episode of sexual violence against one victim was 151 years, in Johnson v. State,

837 N.E.2d 209, 213-14 (Ind. Ct. App. 2005), trans. denied. In that case, the defendant

and two cohorts carjacked a woman’s vehicle, unsuccessfully attempted to force her to

withdraw money from an ATM, drove her to a garage, then forced her to perform numerous

sexual acts while the defendant was armed with a gun. The defendant had an extensive

criminal history, including three felony convictions, consisting primarily of drug offenses.

The sentences in other reported cases involving a single episode of sexual violence have

generally ranged in the ninety to 150-year range. See Akard v. State, 937 N.E.2d 811, 814

(Ind. 2010) (affirming 94-year sentence and reversing this court’s sua sponte increase of

sentence to 118 years for two counts of Class A felony rape, one count of Class B felony

                                            13
rape, two counts of Class A felony criminal deviate conduct, one count of Class B felony

criminal deviate conduct, two counts of Class B felony confinement, and two counts of

Class C felony battery, where defendant without criminal history abducted homeless

woman who appeared childlike and acted out child bondage rape fantasies upon her for

several hours); Alvies v. State, 905 N.E.2d 57, 64-65 (Ind. Ct. App. 2009) (affirming 110-

year sentence for murder, Class A felony rape, Class B felony criminal confinement, Class

B felony burglary, and Class D felony auto theft, where defendant without criminal history

abducted victim from her home and, with cohorts, raped victim and then shot and killed

her); Rose v. State, 810 N.E.2d 361, 368-39 (affirming 135-year sentence following guilty

plea to Class A felony burglary, Class B felony confinement, two counts of Class A felony

criminal deviate conduct, and three counts of Class B felony robbery, where defendant and

cohort broke into house, performed various sexual acts on two victims, one of whom was

pregnant and went into premature labor, and victims were robbed; defendant was sixteen

and had several delinquency adjudications).; cf. Horton v. State, 949 N.E.2d 346, 349 (Ind.

2011) (revising 324-year sentence for six counts of Class A felony child molesting and

three counts of Class C felony child molesting to 110 years, where defendant had no adult

criminal history but he had daily for six months violently molested seven-year-old girl,

causing damage to her bowels and giving her herpes).

       Given our review of comparable cases, we conclude that Corbally’s 270-year

sentence is an “outlier” that is in need of revision. Corbally has a criminal history and

specifically a criminal history involving rape, which by itself warrants a significantly

longer sentence than was imposed in Akard, for example. And, of course, we need not

                                            14
ensure that all sentences for similar acts and defendants are precisely the same. Still,

Corbally’s sentence is so far outside the norm for a single episode of conduct against a

single victim that we choose to exercise our constitutional authority to reduce it.

       We direct that Corbally’s sentence be revised as follows: that his sentence for Class

A felony burglary be reduced to thirty years, with the length of all the other sentences to

remain unchanged; and, that his sentences for burglary, one count of Class A felony rape,

and two counts of Class A felony criminal deviate conduct be served consecutively, with

the remaining sentences to be served concurrently, for a total aggregate sentence of 165

years. We remand with instructions that the trial court issue an amended sentencing order

and issue or make any other necessary documents or docket entries to carry out this

revision.

                                        Conclusion

       Although the trial court erroneously allowed Cummings to relate M.R.’s prior

consistent out-of-court statements to the jury, that error was harmless. We do find

Corbally’s sentence to be inappropriate and direct that it be revised to a term of 165 years.

       Affirmed in part, reversed in part, and remanded.

BROWN, J., concurs.

ROBB, J., concurs as to Issue I and dissents without opinion as to Issue II.




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