MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be
                                                                    Oct 14 2016, 8:53 am
regarded as precedent or cited before any
court except for the purpose of establishing                            CLERK
                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                Court of Appeals
                                                                         and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ernest P. Galos                                          Gregory F. Zoeller
Public Defender                                          Attorney General of Indiana
South Bend, Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Herbert Lee Brown, III,                                  October 14, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A04-1603-CR-675
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable John M.
Appellee-Plaintiff                                       Marnocha, Judge
                                                         Trial Court Cause No.
                                                         71D02-1501-F1-2



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016      Page 1 of 15
[1]   Herbert Brown appeals his convictions for two counts of Level 1 Felony Rape 1

      and two counts of Level 3 Felony Robbery.2 Brown raises the following

      arguments on appeal: (1) the trial court erred by excluding evidence of the

      victim’s other sexual conduct; (2) the trial court erred by denying a mistrial;

      (3) there is insufficient evidence supporting the rape convictions; and (4) the

      aggregate sentence is inappropriate in light of the nature of the offenses and his

      character. Finding no error and finding that the sentence is not inappropriate,

      we affirm.


                                                     Facts
[2]   Around 3:40 a.m. on January 1, 2015, Brown went to a 7-Eleven in South

      Bend. The two clerks working that morning were Debra Pushee and Marcus

      Kraskowski. After Pushee sold a customer a pack of cigarettes, Brown tried to

      steal them. When the customer refused to give Brown the cigarettes, Brown

      pulled a handgun, pointed it at Pushee, and said, “Give me the money.” Tr. p.

      58. Pushee stood back from the register and allowed him to take the money

      inside of it. Pushee thought that Brown was going to kill her and Kraskowski.

      Brown then held his gun to Kraskowski’s chest, head, and neck, and demanded

      that he open the register in front of him. Kraskowski complied, and Brown

      took the money from inside of that register as well. Brown walked to the front




      1
          Ind. Code § 35-42-4-1.
      2
          I.C. § 35-42-5-1.


      Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016   Page 2 of 15
      door of the store, saw that his ride had left, and returned to the clerks,

      demanding that they empty their pockets. He took Kraskowski’s wallet and

      then exited the store.


[3]   A minivan was parked outside of the 7-Eleven. Brown opened the door on the

      driver’s side of the vehicle and got in. C.J., whose boyfriend was inside the

      store, was resting in the passenger’s seat. When the door opened, she thought it

      was her boyfriend, but when she opened her eyes and saw Brown, who she did

      not know, she said, “Wait, dude, you’re in the wrong car.” Id. at 123. Brown

      told her to “shut up” and pointed his gun at her. Id. He drove away and

      eventually pulled the vehicle over and stopped.


[4]   Brown asked C.J. to give him oral sex. She did not want to, but she did not

      believe that she had any options “because he had that gun.” Id. at 126. She

      urinated on herself. She performed oral sex on Brown, but he did not ejaculate.

      He told her that she was doing it wrong and ordered her to go to the back of the

      van and remove her pants. She complied. He followed and inserted his penis

      into her vagina. He still did not ejaculate, and demanded that she again

      perform oral sex. As she was performing oral sex a second time, he urinated in

      her mouth. She spit it out and wiped it up with her shirt. Brown wiped down

      everything in the vehicle that he had touched. C.J. asked him to take her back

      to the 7-Eleven, where her boyfriend was probably waiting for her. Brown

      eventually stopped the van and told C.J. to turn her head. She “thought he was

      going to shoot [her] in the back of [her] head.” Id. at 131. He exited the van,

      and she then jumped into the driver’s seat and drove away.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016   Page 3 of 15
[5]   On January 16, 2015, the State charged Brown with three counts of rape, four

      counts of robbery, and one count of criminal confinement. The State later

      dismissed two counts of robbery and the criminal confinement charge. Prior to

      trial, the State filed a motion in limine to exclude evidence of C.J.’s prior sexual

      history. The trial court granted the motion in part, excluding evidence from

      C.J.’s thigh swab revealing the presence of DNA that was not Brown’s.


[6]   Brown’s jury trial began on January 19, 2016. During preliminary jury

      instructions, the trial court cautioned the jury that the “fact that charges have

      been filed and the defendant arrested and brought to trial, is not to be

      considered by you as any evidence of guilt. The charging information is not

      evidence.” Id. at 19-20. Then, the court realized that the packet provided to the

      jury mistakenly included the original charge of criminal confinement that had

      been dismissed. The trial court told the jury that “page three of this next

      instruction wasn’t in any of our instructions, but it is[,] for some reason, in

      yours,” explaining that it was a scrivener’s error and asking the jurors to rip out

      page three. Id. at 21-22. After the jurors had removed page three, the trial court

      said, “[t]hat’s something from some other case that was left over, that wasn’t for

      some reason taken out of the ones that you have.” Id. at 22.


[7]   The trial court started reading the charges, found a numbering error, and

      decided to take a recess to collect the instructions and start over. At that point,

      Brown’s attorney requested a sidebar and asked for a mistrial. The trial court

      denied the motion. Next, the trial court asked of the jurors, “[d]oes anyone

      think that based upon what I’ve said, that they couldn’t continue to be a fair

      Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016   Page 4 of 15
      juror in this case?” Id. at 27. The jurors all answered no. After a recess, the

      trial court called the jury back in and again explained that the original

      “instructions . . . had a count in it, in which Mr. Brown was not at all charged

      with.” Id. at 33. The trial court asked again, “is there anything about that, that

      you think . . . would cause you not to be able to continue to be a fair and

      impartial juror and judge this case based upon the law and the facts that [are]

      presented to you during this trial?” Id. The jurors all said no, and the trial

      court then read the instructions again from the beginning, including the

      instruction stating that the charging information is not to be considered as

      evidence of guilt.


[8]   Brown testified at the trial, admitting that he had a gun with him and that he

      had sex with C.J. but insisting that it was consensual. C.J. also testified, as did

      the 7-Eleven clerks, a police officer, and the nurse who examined C.J. following

      the assault.


[9]   On January 21, 2016, the jury found Brown guilty of two counts of Level 1

      felony rape and two counts of Level 3 felony robbery. Brown’s sentencing

      hearing took place on February 24, 2016. As aggravators for the robberies, the

      trial court found that there were multiple victims and that Brown was on

      probation for assisting a criminal in murder when he committed the offenses in

      this case. As aggravators for the rapes, the trial court found that there were

      multiple acts, that Brown was on probation, and that the nature and

      circumstances of the offense were egregious, including the fact that he had

      urinated in C.J.’s mouth. The trial court did not find any mitigators. The trial

      Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016   Page 5 of 15
       court imposed concurrent terms of forty years for each of the two rape

       convictions, to be served consecutively to concurrent terms of sixteen years for

       each of the two robbery convictions, for an aggregate sentence of fifty-six years

       imprisonment. Brown now appeals.


                                    Discussion and Decision
                     I. Evidence of C.J.’s Prior Sexual History
[10]   Brown first argues that the trial court erred by excluding evidence of C.J.’s prior

       sexual history. The admission and exclusion of evidence falls within the trial

       court’s sound discretion, and we will reverse only if the decision is clearly

       against the logic and effect of the facts and circumstances before it. Johnson v.

       State, 6 N.E.3d 491, 498 (Ind. Ct. App. 2014).


[11]   The trial court excluded the evidence of the DNA in C.J.’s thigh swab under

       Indiana Evidence Rule 412, which provides, in relevant part, as follows:


               (a)      Prohibited Uses. The following evidence is not admissible
                        in a civil or criminal proceeding involving alleged sexual
                        misconduct:

                        (1)     evidence offered to prove that a victim or witness
                                engaged in other sexual behavior; or

                        (2)     evidence offered to prove a victim’s or witness’s
                                sexual predisposition.

               (b)      Exceptions.

                        (1)     Criminal Cases. The court may admit the following
                                evidence in a criminal case:

       Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016   Page 6 of 15
                         (A)      evidence of specific instances of a victim’s or
                                  witness’s sexual behavior, if offered to prove
                                  that someone other than the defendant was
                                  the source of semen, injury, or other physical
                                  evidence;

                         (B)      evidence of specific instances of a victim’s or
                                  witness’s sexual behavior with respect to the
                                  person accused of the sexual misconduct, if
                                  offered by the defendant to prove consent or
                                  if offered by the prosecutor; and

                         (C)      evidence whose exclusion would violate the
                                  defendant's constitutional rights.

                                                ***

        (c)      Procedure to Determine Admissibility.

                 (1)     Motion. If a party intends to offer evidence under
                         Rule 412(b), the party must:

                         (A)      file a motion that specifically describes the
                                  evidence and states the purpose for which it is
                                  to be offered;

                         (B)      do so at least ten (10) days before trial unless
                                  the court, for good cause, sets a different
                                  time;

                         (C)      serve the motion on all parties; and

                         (D)      notify the victim or, when appropriate, the
                                  victim’s guardian or representative.

                 (2)     Hearing. Before admitting evidence under this rule,
                         the court must conduct an in camera hearing and
                         give the victim and parties a right to attend and be
                         heard. Unless the court orders otherwise, the
                         motion, related materials, and the record of the

Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016   Page 7 of 15
                                  hearing is confidential and excluded from public
                                  access in accordance with Administrative Rule 9.


       In this case, the evidence excluded by the trial court was offered to prove that

       C.J. had engaged in other sexual behavior on the night in question; therefore, it

       was prohibited by Evidence Rule 412(a). Initially, we note that Brown did not

       comply with Rule 412(c)—he did not file a motion seeking to have the evidence

       admitted. Consequently, regardless of the substance of the evidence, he was

       not entitled to its admission.3


[12]   Lack of a motion notwithstanding, we will briefly address the substance of the

       issue. The only way the evidence in question would be admissible is if it fell

       under an exception to the general prohibition.


            The first exception—evidence of specific instances of C.J.’s sexual
             behavior, offered to prove that someone other than Brown was the
             source of semen or other physical evidence—does not apply because
             Brown admitted that he did, in fact, have sex with C.J. on the night in
             question. The only contested issue was consent, not the identity of the
             person providing the semen in the van and semen and/or urine on C.J.’s
             shirt.

            The second exception—evidence of specific instances of C.J.’s sexual
             behavior with respect to Brown, if offered by Brown to prove consent—does
             not apply because the evidence relates to C.J.’s sexual behavior with
             other individuals, not with Brown, and in no way tends to prove consent.




       3
        Brown has also waived this argument because he failed to argue to the trial court that the evidence fell
       within any of the Rule 412 exceptions. Waiver notwithstanding, we will address the issue.

       Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016            Page 8 of 15
            The final exception—evidence whose exclusion would violate Brown’s
             constitutional rights—does not apply. Brown argues that excluding the
             evidence denied him a fair trial because he could not impeach C.J.’s
             version of the events on the night in question. Brown had assumed that
             C.J. would testify that she had not had sex with anyone before he raped
             her, and that he would then impeach her with the thigh swab evidence.
             But she did not testify about her sexual behavior before the rape, so there
             was no testimony for him to impeach.

       In sum, the evidence was clearly prohibited and did not fall under any of the

       delineated exceptions to the general rule. Therefore, the trial court did not err

       by excluding it.


                                                II. Mistrial
[13]   Next, Brown argues that the trial court erred by denying his motion for a

       mistrial when the dismissed criminal confinement charge was mistakenly

       included in the instructions provided to the jury before trial began. A mistrial is

       an extreme remedy that is only justified when other measures are insufficient to

       rectify the situation. Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001). Brown

       has the burden of establishing that the questioned conduct was so prejudicial

       and inflammatory that he was placed in a position of grave peril to which he

       should not have been subjected. Id.


[14]   In this case, as soon as the trial court realized that the dismissed charge was

       included in the jurors’ packets, it asked the jurors to remove the page and

       explained that it contained a scrivener’s error. The trial court stated that it was

       “something from some other case that was left over,” and not related to

       Brown’s case. Tr. p. 22. The trial court asked of the jurors, “[d]oes anyone
       Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016   Page 9 of 15
       think that based upon what I’ve said, that they couldn’t continue to be a fair

       juror in this case?” Id. at 27. The jurors all answered no. After a recess, the

       trial court again emphasized that the jurors had mistakenly been provided with

       a count that Brown had not been charged with, and asked again, “is there

       anything about that, that you think . . . would cause you to not be able to

       continue to be a fair and impartial juror and judge this case based upon the law

       and the facts that [are] presented to you during this trial?” Id. at 33. The jurors

       again all answered no. When the trial court re-read the instructions from the

       beginning, it again emphasized that criminal charges are not to be considered as

       evidence of guilt.


[15]   Initially, we note that we must presume that jurors follow a trial court’s

       instructions and admonishments. Isom v. State, 31 N.E.3d 469, 481 (Ind. 2015);

       see also Lucio v. State, 907 N.E.2d 1008, 1010-11 (Ind. 2009) (emphasizing the

       “strong presumptions that juries follow courts’ instructions and that an

       admonition cures any error”). We find this Court’s opinion in Strowmatt v. State

       to be instructive. 686 N.E.2d 154 (Ind. Ct. App. 1997). In Strowmatt, the judge

       began reading the wrong child molesting charge, with a different victim’s name,

       during voir dire. The judge twice apologized to the potential jurors and

       explained that he had misread the charge. He asked if the misreading was a

       problem, and none of the jurors responded. The defendant moved for a

       mistrial, which the trial court denied, and this Court affirmed. We found that

       the trial court had eliminated any possible prejudice by asking the jurors if they




       Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016   Page 10 of 15
       could be fair, emphasizing that the misreading occurred before trial and that the

       wrong charge was not admitted into evidence. Id. at 157.


[16]   In this case, as in Strowmatt, the trial court explained what had happened to the

       jury more than once. The trial court also asked, twice, whether the jurors

       would have difficulty being fair and impartial as a result, and all of the jurors

       said no. Furthermore, the instructions cautioned the jurors that, in any event,

       criminal charges are not to be considered as evidence of the defendant’s guilt.

       Given all of these facts, and given that this sequence of events occurred before

       the trial began and the wrong charge was not entered into evidence, we find no

       error in the trial court’s denial of the motion for a mistrial.


                                                 III. Sufficiency
[17]   Brown argues that there is insufficient evidence supporting his two rape

       convictions.4 When reviewing a claim of insufficient evidence, we will consider

       only the evidence and reasonable inferences that support the conviction. Gray

       v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm if, based on the

       evidence and inferences, a reasonable jury could have found the defendant

       guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.

       2009).




       4
           He does not make a sufficiency argument with respect to his robbery convictions.


       Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016   Page 11 of 15
[18]   To convict Brown of the two charged counts of Level 1 felony rape, the State

       was required to prove the following beyond a reasonable doubt: (1) Brown

       compelled C.J. by force or imminent threat of force to perform oral sex on him

       while he was armed with a deadly weapon; and (2) Brown compelled C.J. by

       force or imminent threat of force to have sexual intercourse with him while he

       was armed with a deadly weapon. I.C. § 35-42-4-1.


[19]   In this case, C.J. testified that Brown forced her to perform oral sex on him and

       to have sexual intercourse with him while he was armed with a gun. She was

       scared and believed she had to comply because of the weapon. She testified at

       length and with specificity. Her uncorroborated testimony, alone, is sufficient

       evidence to support the rape convictions. Carter v. State, 44 N.E.3d 47, 54 (Ind.

       Ct. App. 2015). And in this case, her testimony was not uncorroborated.

       Pushee, Kraskowski, and another individual testified that after Brown left 7-

       Eleven he got into a van. The nurse who examined C.J. and two police officers

       who interviewed C.J. corroborated the details of the rapes that she provided in

       her testimony. Finally, Brown himself corroborated much of C.J.’s testimony,

       admitting that he was armed and that they had oral sex and intercourse in her

       van. This evidence is more than sufficient to support the rape convictions, and

       his arguments to the contrary amount to requests that we reweigh evidence and

       assess witness credibility—requests we decline.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016   Page 12 of 15
                                        IV. Appropriateness
[20]   Finally, Brown argues that the sentence imposed by the trial court is

       inappropriate in light of the nature of the offenses and his character. Indiana

       Appellate Rule 7(B) provides that this Court may revise a sentence if it is

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

       offender. We must “conduct [this] review with substantial deference and give

       ‘due consideration’ to the trial court’s decision—since the ‘principal role of

       [our] review is to attempt to leaven the outliers,’ and not to achieve a perceived

       ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

       (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

       citations omitted).


[21]   Brown was convicted of two Level 1 felonies and two Level 3 felonies. For the

       Level 1 felonies, Brown faced a sentence of twenty to forty years, with an

       advisory term of thirty years. Ind. Code § 35-50-2-4(b). He received concurrent

       forty-year terms for the Level 1 felony convictions. For the Level 3 felonies,

       Brown faced a sentence of three to sixteen years, with an advisory term of nine

       years. I.C. § 35-50-2-5(b). He received concurrent sixteen-year terms for the

       Level 3 felony convictions. While Brown received the maximum terms for

       each of his four convictions, because the trial court elected to order that the two

       Level 1 terms be served concurrently and the two Level 3 terms be served

       concurrently, his aggregate sentence was 56 years rather than the maximum

       possible aggregate term of 112 years.



       Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016   Page 13 of 15
[22]   As for the nature of the robberies, the record reveals that Brown’s crimes were

       premeditated. He visited the 7-Eleven at the same time every day for a week,

       scoping the store out. He showed up on the night he robbed the store wearing

       just one glove that covered the tattoo on his hand, and a hooded sweatshirt, in a

       failed attempt to hide his face. He robbed the two clerks twice, first taking the

       money from their registers at gunpoint, then walking away to the front door,

       and then returning and ordering them to empty their pockets.


[23]   As for the nature of the rapes, he hijacked a vehicle with a passenger inside. He

       ordered C.J. to shut up, pointing his gun at her, and drove her to another

       location. He forced C.J. to perform oral sex on him twice and forced her to

       engage in sexual intercourse. C.J. was so scared that she urinated on herself.

       When Brown was unable to ejaculate, he urinated in C.J.’s mouth. 5 She was

       terrified and believed that he was going to kill her. We do not find that the

       nature of these offenses aids Brown’s sentencing argument.


[24]   As for Brown’s character, we note that at the time he committed these crimes,

       he was only twenty years old. At that young age, he had been adjudicated

       delinquent for an alcohol violation and possessing marijuana. He was put on

       probation for the latter adjudication and violated it for receiving three school

       suspensions. In his brief adulthood, he was convicted of class C felony assisting




       5
        To the extent that Brown appears to argue that the trial court abused its discretion in finding this to be an
       aggravator, we note that he attempts to raise it in the context of the Rule 7(B) analysis, which is not
       permitted. Because he has failed to conduct an abuse of discretion analysis, he has waived this issue.
       However, even if he had raised it properly, we would have reached the same result.

       Court of Appeals of Indiana | Memorandum Decision 71A04-1603-CR-675 | October 14, 2016             Page 14 of 15
       a criminal in murder. He was still on probation for that offense when he

       committed his most recent crimes. It is readily apparent that Brown is either

       unable or unwilling to comply with the rules of society. It is likewise apparent

       that he has little respect for his fellow citizens. In sum, we do not find the

       aggregate fifty-six-year sentence to be inappropriate in light of the nature of the

       offenses and Brown’s character.


[25]   The judgment of the trial court is affirmed.


       May, J., and Crone, J., concur.




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