MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                         Mar 23 2017, 8:50 am
court except for the purpose of establishing
                                                                       CLERK
the defense of res judicata, collateral                            Indiana Supreme Court
                                                                      Court of Appeals
estoppel, or the law of the case.                                       and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Frederick Vaiana                                         Curtis T. Hill, Jr.
Voyles Zahn & Paul                                       Attorney General of Indiana
Indianapolis, Indiana
                                                         Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jabril Scruggs,                                          March 23, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1609-CR-2024
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt M. Eisgruber,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G01-1403-FB-14175



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2024 | March 23, 2017      Page 1 of 10
                                          Case Summary
[1]   On March 18, 2014, Appellant-Defendant Jabril Scruggs asked a fellow

      Lawrence Central High School student, K.H., if she would go with him and

      hold the door open for him while he looked for his mother outside of the

      school. While they were in an empty hallway, Scruggs forced K.H. to have

      intercourse without her consent and despite her pleas for him to stop. K.H.

      subsequently reported the rape to the school’s dean who, in turn, alerted police.

      Appellee-Plaintiff the State charged Scruggs with rape as a Class B felony and

      two counts of criminal confinement as class D felonies. The jury in the first

      trial acquitted Scruggs of one count of criminal confinement but failed to reach

      unanimous verdicts on the other two charges. A second jury trial commenced

      on June 27, 2016, after which the jury found him guilty of both charges. The

      trial court subsequently merged the criminal confinement charge into the rape

      charge and sentenced Scruggs to ten years of incarceration with four years

      suspended to probation and ten years on the sex offender registry.


[2]   Scruggs challenges the sufficiency of the evidence and the exclusion of a defense

      witness. Specifically, Scruggs raises the following restated issues: whether the

      evidence was sufficient to prove that Scruggs had intercourse with K.H. without

      her consent and whether the trial court properly excluded a defense witness and

      denied a continuance. Due to the ample evidence that the intercourse was not

      consensual and the facts that the potential testimony from the belatedly

      disclosed defense witness was riddled with inadmissible hearsay and the witness

      would not have been available to the State prior to his testifying, we affirm.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2024 | March 23, 2017   Page 2 of 10
                            Facts and Procedural History
[3]   On March 18, 2014, K.H., a junior at Lawrence Central High School, in

      Marion County, Indiana, was feeling ill and had her head down on a table

      during the first period of lunch at school. Scruggs, a fellow student, sat down

      next to her and kept taking her headphones out of her ears. K.H. repeatedly

      told Scruggs that she was not feeling well. Scuggs then asked K.H. if she would

      hold a door open for him so he could check to see if his mother was there to

      pick him up without getting locked out. K.H. agreed to help Scruggs with the

      door.


[4]   K.H. and Scruggs walked around the school while Scruggs checked to see if his

      mother was waiting by three or four different doors. When they were outside of

      the dean’s office, Scruggs tried to kiss K.H. K.H. moved away from his

      advances because she did not want to kiss him. They continued to walk around

      while Scruggs ostensibly checked the various doors for his mother.


[5]   After checking the fourth door, Scruggs put his hands on K.H.’s back and began

      pushing her to walk forward. He directed her towards a secluded area by the

      girls’ and boys’ locker room. “He started getting a little rough, like grabbing

      [her] arm, twisting [her] arm back and stuff, and like putting his hand on [her]

      shoulder and like bending [her] over.” Tr. III p. 16. K.H. told Scruggs “no”

      and “stop” several times. Tr. III pp. 17-18. While holding her arm and using

      his weight to keep her bent over, Scruggs pulled down K.H.’s pants. K.H.

      started crying and pleading for Scruggs to stop, but he pulled his pants down


      Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2024 | March 23, 2017   Page 3 of 10
      and forced his penis inside of her vagina. Scruggs was very forceful and rough

      as he struggled to insert his penis inside of K.H. K.H. continued to plead with

      him to stop; however, Scruggs ignored her pleas and did not stop until he had

      ejaculated on her back.


[6]   Scruggs walked away after he pulled up his pants, but then returned to get K.H.

      K.H. was still crying and trying to fix her clothes when Scruggs returned. After

      she was done pulling her pants up, Scruggs put his arm around her and led her

      into the main gym. K.H. continued to cry and said “I kept telling you ‘No’ and

      I kept telling you to stop.” Tr. III p. 25. Dean Shelt approached them and

      noticed that K.H. was upset and agitated. She did not appear to have the

      demeanor of a student that had just been caught doing something wrong, but

      instead appeared to be emotionally upset. Dean Shelt asked K.H. what was

      wrong, but she did not respond. Instead, Scruggs told Dean Shelt that K.H.

      was having some family issues. Dean Shelt then told them to return to

      wherever they were supposed to be.


[7]   Scruggs walked away and K.H. went to the bathroom to try to clean herself up.

      K.H. then went into the lunchroom crying and very upset which was out of

      character for her. She asked her friend Dajsha Brown if she could borrow her

      phone to call her mother. After she spoke to her mother, K.H. continued to

      cry. She then told her friend, Brown, that she had been raped by “J-Rock.” Tr.

      II pp. 49-50. Brown knew that J-Rock was Sruggs’s nickname. Brown, along

      with another friend, took K.H. to the nurse’s office. When the girls arrived at

      the nurse’s office, they were redirected to Dean Shelt’s office. K.H. told Dean

      Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2024 | March 23, 2017   Page 4 of 10
      Shelt that Scruggs had raped her. Dean Shelt subsequently contacted the

      appropriate school officials, law enforcement officers, and K.H.’s mother.


[8]   After speaking with police, K.H. went to the emergency room with her mother.

      She was still visibly upset and crying when she arrived at the hospital. Once her

      mother calmed her down, K.H. was examined by a nurse and several samples

      were taken for a rape kit. The nurse noted that K.H. had “at least eight pretty

      sizeable” lacerations and several smaller injuries on her external genitalia. Tr.

      III p. 121. The lacerations were likely caused by blunt force trauma. The type

      and substantial quantity of injuries suffered by K.H. suggested that she did not

      assist Scruggs in inserting his penis into her vagina. One of the nurses who

      examined K.H. testified that out of the several hundred exams that she had

      done, she could not remember ever seeing so many injuries to that area.

      Internally, K.H. also suffered from a bruised hymen and her cervix had redness

      which appeared to be a laceration; neither of these injuries are very common,

      even in cases of sexual assault.


[9]   The vaginal and cervical swabs showed the presence of seminal material. The

      speculum swabs also showed the presence of seminal material. The external,

      internal, and genital swabs showed the presence of blood and seminal material.

      The external genital swab also matched Scruggs’s DNA to the extent that the

      lab could not exclude patrilineal related male relatives. A secretion swab from

      K.H.’s mid-back showed seminal material with sperm and the DNA matched

      that of Sruggs. K.H.’s underwear also showed evidence of seminal fluid.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2024 | March 23, 2017   Page 5 of 10
       Seminal fluid was also found on K.H.’s sweatpants, black jacket, and tank top

       that she had been wearing that day.


[10]   School officials were able to pull surveillance footage that corroborated what

       K.H. had told police and school officials. There was no camera in the hallway

       where the rape occurred, but there were cameras nearby which show K.H. and

       Scruggs before and after the rape. The police collected Sruggs’s clothing and

       the paper towels from the bathroom in which K.H. had tried to clean herself up.

       A buccal swab was also taken on Scruggs the following day. After the rape

       occurred, K.H. did not return to the high school. She began taking classes

       online. Her family also decided to move after the rape occurred.


[11]   On March 19, 2014, the State charged Scruggs with rape as a Class B felony

       and two counts of criminal confinement as Class D felonies. After the first trial,

       Scruggs was acquitted of one count of criminal confinement, and the jury hung

       on the other two charges.


[12]   On June 27, 2016, a second jury trial commenced. On the day of the trial,

       Scruggs’s attorney filed a Defense Witness and Exhibit List listing, inter alia,

       Cameron Washington as a witness for the defense. The State objected to

       Washington due to the late notice. The trial court subsequently excluded his

       testimony and denied a continuance request. At the end of the trial, the jury

       returned guilty verdicts on both charges. The trial court subsequently merged

       the counts and sentenced Scruggs to ten years of incarceration with four of




       Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2024 | March 23, 2017   Page 6 of 10
       those years suspended to probation and ten years on the sex offender registry.

       This appeal follows.



                                 Discussion and Decision
                               I.     Sufficiency of the Evidence
[13]   Our standard for reviewing the sufficiency of the evidence claims is well-settled.

       Tobar v. State, 740 N.E.2d 109, 111 (Ind. 2000).


               In reviewing the sufficiency of the evidence, we examine only the
               probative evidence and reasonable inferences that support the
               verdict. We do not assess witness credibility, nor do we reweigh
               the evidence to determine if it was sufficient to support a
               conviction. Under our appellate system, those roles are reserved
               for the finder of fact. Instead, we consider only the evidence
               most favorable to the trial court ruling and affirm the conviction
               unless no reasonable fact-finder could find the elements of the
               crime proven beyond a reasonable doubt. This evidence need not
               overcome every reasonable hypothesis of innocence; it is
               sufficient so long as an inference may reasonably be drawn from
               it to support the verdict.


       Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012) (internal citations and quotation

       marks omitted). The trier of fact is responsible for resolving conflicts of

       testimony, determining the weight of the evidence, and evaluating the

       credibility of the witnesses. Jones v. State, 701 N.E.2d 863, 867 (Ind. Ct. App.

       1998). Additionally, “a rape conviction may rest solely on the uncorroborated

       testimony of the victim.” Wooden v. State, 657 N.E.2d 109, 111 (Ind. 1995).



       Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2024 | March 23, 2017   Page 7 of 10
[14]   Here, Scruggs was charged with rape as a Class B felony. He admitted to

       having intercourse with K.H. and ejaculating on her back. (Tr. III 197-98).

       Scruggs is only challenging whether there was sufficient evidence to support the

       finding that he had intercourse with K.H. without her consent. K.H.’s

       testimony was very clear and unequivocal that she did not consent to the

       intercourse with Scruggs and she told him no multiple times. K.H.’s testimony,

       by itself, is sufficient to support the rape conviction. See id.


[15]   However, the physical evidence also supported K.H.’s testimony that the

       intercourse was not consensual. The medical evidence showed that K.H.

       sustained numerous internal and external injuries, including a bruised hymen,

       an injury to the cervix, blunt force trauma, and lacerations, all of which are

       inconsistent with a consensual encounter. Furthermore, multiple witnesses

       testified to K.H.’s demeanor after the rape. The police officers, her friends, the

       school’s dean, and a nurse testified that K.H. was visibly upset and crying.

       Finally, the surveillance footage of K.H. and Scruggs before and after the rape

       corroborate K.H.’s testimony.


[16]   Scruggs points to evidence, including a nurses’ testimony that it was

       theoretically possible that the injuries came from a consensual encounter and

       his own testimony, to support his assertion that K.H. consented. His argument,

       however, is merely a request to reweigh the evidence, which we will not do.

       Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). Consequently, we conclude

       that there was sufficient evidence to support Scruggs’s conviction.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2024 | March 23, 2017   Page 8 of 10
        II. The Trial Court Acted Within Its Discretion When
              It Excluded a Defense Witness and Denied a
                              Continuance
[17]   Scruggs claims that the trial court abused its discretion by not allowing defense

       witness Cameron Washington to testify. “Trial courts have the discretion to

       exclude a belatedly disclosed witness when there is evidence of bad faith on the

       part of counsel or a showing of substantial prejudice to the State.” Williams v.

       State, 714 N.E.2d 644, 651 (Ind. 1999). Defense counsel knew about

       Washington about a month before the second trial. Washington was in jail, but

       his counsel told defense counsel that she could call him to arrange a time for

       her to talk to his client; however, defense counsel kept “forgetting to do that.”

       Tr. II, p. 10. The availability of Washington was also at issue, as he was on

       trial himself across the hall on the day of Scruggs’s trial. Therefore, the State

       was unable to interview him to discuss his potential testimony.


[18]   Further, a brief recess would not have remedied the problem as Washington’s

       trial was expected to last several days. This was the second trial on Scruggs’s

       charges and multiple witnesses were prepared to testify. Due to the belated

       disclosure, the State did not have time to learn of the existence or substance of

       Washington’s potential testimony. The State would have been greatly

       prejudiced had Washington been allowed to testify because it did not have the

       opportunity to meet with the witness to discuss his potential testimony or

       follow up on anything.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2024 | March 23, 2017   Page 9 of 10
[19]   Moreover, there were concerns regarding the admissibility of the potential

       testimony. Defense counsel indicated that Washington would have testified

       about a conversation between K.H. and some other individuals which he

       allegedly overheard. Washington himself was not a participant in the

       conversation. Defense counsel indicated during the offer of proof that

       Washington had told her that he heard K.H. tell another individual that her

       mother was making her pursue the rape charge. The proposed testimony had

       multiple layers of hearsay, and Scruggs has not established that the

       conversation would have been admissible.


[20]   Finally, “we will find an error in the exclusion of evidence harmless if its

       probable impact on the jury, in light of all of the evidence in the case, is

       sufficiently minor so as not to affect the defendant's substantial rights.”

       Williams, 714 N.E.2d at 652. There was substantial evidence that Scruggs was

       guilty of rape from K.H., other witnesses, the surveillance video, and the

       medical evidence. It is unlikely that the jury would have given much

       consideration to Washington’s testimony, especially since much of

       Washington’s testimony would have been excluded due to issues with hearsay

       leaving him little if anything to testify about. Accordingly, we conclude that the

       exclusion of his testimony was harmless error.


[21]   We affirm the judgement of the trial court.


       Vaidik, C.J., and Brown, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1609-CR-2024 | March 23, 2017   Page 10 of 10
