MEMORANDUM DECISION
                                                                 Feb 27 2015, 6:51 am

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEY FOR APPELLEE
Paula M. Sauer                                         Gregory F. Zoeller
Danville, Indiana                                      Attorney General of Indiana

                                                       Brian Reitz
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Joseph Singleton,                                      February 27, 2015

Appellant-Defendant,                                   Court of Appeals Case No.
                                                       32A01-1407-CR-323
        v.                                             Appeal from the Hendricks Superior
                                                       Court
                                                       The Honorable Karen M. Love,
State of Indiana,                                      Judge
Appellee-Plaintiff                                     Cause No. 32D03-1305-FA-6




Bailey, Judge.
                                               Case Summary
[1]   Joseph Singleton (“Singleton”) appeals his convictions and thirty-eight-year

      aggregate sentence for Child Molesting, as a Class A felony,1 and Attempted

      Child Molesting, as a Class C felony.2 We affirm the convictions but revise the

      sentence to twenty years.



                                                   Issues
[2]   Singleton presents three issues for review:

      I. Whether he was entitled to a mistrial after a witness testified that Singleton’s

      wife was pregnant at the time of the crimes;

      II. Whether his sentence is inappropriate; and

      III. Whether Singleton was properly prohibited from contact with his infant

      son.



                                   Facts and Procedural History
[3]   In 2012, thirty-two-year-old Singleton taught algebra at Plainfield Community

      Middle School. Thirteen-year-old M.M. was one of Singleton’s students. Prior

      to the winter break, Singleton and M.M. began communicating via a

      photograph-sharing social networking website. They later agreed to




      1
          Ind. Code § 35-42-4-3.
      2
          Ind. Code §§ 35-42-4-3, 35-41-5-1.


      Court of Appeals of Indiana | Memorandum Decision 32A01-1407-CR-323| February 27, 2015   Page 2 of 10
      communicate via texting, eventually sending thousands of texts to one another.

      M.M. frequently visited Singleton’s classroom at lunch time, using hall passes

      that he had written for M.M. and her friends. M.M. would customarily leave

      her book bag in the classroom and Singleton would sometimes place snacks in

      it. The teacher and student also exchanged gifts.


[4]   Singleton coached a math competition team, which M.M. joined. Practices

      were held twice-weekly and Singleton sometimes gave M.M. a ride home

      afterward. By April of 2013, Singleton and M.M. had professed love for each

      other. On April 5, 2013, Singleton kissed M.M. on her lips. The kisses

      continued for about three weeks, typically taking place in a darkened

      classroom. In late April, after a math competition practice, M.M. called her

      step-father to pick her up because she wasn’t feeling well. She laid down on the

      classroom floor to wait for her ride, and Singleton laid down on the floor beside

      M.M. They kissed, Singleton unzipped M.M.’s pants, and Singleton placed his

      finger in M.M.’s vagina.


[5]   During the early morning hours of May 1, 2013, M.M.’s mother noticed that

      M.M. had received a text message with the word “love” and a heart symbol in

      it. (Tr. 549.) She awakened M.M. and demanded an explanation. Eventually,

      M.M. provided her password and text messages from Singleton were

      discovered. M.M.’s parents contacted police.




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[6]   On May 2, 2013, Singleton was charged with Attempted Child Molestation for

      having kissed M.M. on her lips. On May 22, 2013, Singleton was charged with

      Child Molestation for having digitally penetrated M.M.’s vagina.


[7]   On April 22, 2014, a jury convicted Singleton of both counts. On July 1, 2014,

      Singleton received a sentence of thirty-eight years imprisonment, with three

      years suspended to probation. As a condition of probation, Singleton was

      ordered to have no contact with any person under age eighteen. This appeal

      ensued.



                                 Discussion and Decision
                                                  Mistrial
[8]   Prior to trial, defense counsel requested that Singleton’s statement to police be

      redacted to omit any reference to his wife’s pregnancy; the request was granted.

      Counsel then sought clarification that his motion in limine “on the pregnancy

      issue” was granted. (Tr. 383.) The court indicated that the motion in limine

      was granted, subject to the defense not “opening the door.” (Tr. 383.) The

      prosecutor responded that the State had no intention of making pregnancy an

      issue and further stated: “If it comes out it has not been elicited[.]” (Tr. 384.)


[9]   M.M. was called as the State’s first witness. After M.M. had testified at length,

      and described Singleton’s conduct in detail, the prosecutor asked M.M. “how

      did all this come out.” (Tr. 475.) The following exchange then took place:


      Prosecutor: when she [your mother] asked you about it what did you tell her?

      Court of Appeals of Indiana | Memorandum Decision 32A01-1407-CR-323| February 27, 2015   Page 4 of 10
       M.M.: I said don’t get him in trouble. It’s all my fault.

       Prosecutor: Why did you say that?

       M.M.: Because he had – his wife was pregnant and I didn’t like for him to get
       in trouble because he had a family.

       (Tr. 475-76.)


[10]   Defense counsel interrupted and the jury was excused. Defense counsel then

       requested a mistrial. The prosecutor insisted that the reference to pregnancy

       was inadvertent but admitted that she had not advised M.M. to avoid such

       reference. The State did not specifically oppose the grant of a mistrial.

       However, the trial court opined that evidence of his wife’s pregnancy was not

       so detrimental to Singleton as to require a mistrial. With Singleton’s

       acquiescence, the trial court instructed the jury: “you are to disregard the

       witness’s testimony that Mrs. Singleton may or may not have been pregnant.”

       (Tr. 482.) Singleton now argues that the State interjected an evidentiary

       harpoon by deliberately eliciting testimony in violation of a motion in limine,

       and that he was therefore entitled to a mistrial. According to Singleton, the jury

       admonishment was inadequate to preserve his right to a fair trial.


[11]   A decision to grant or deny a motion for a mistrial lies within the discretion of

       the trial court. Randolph v. State, 755 N.E.2d 572, 575 (Ind. 2001). On appeal,

       the trial court’s exercise of discretion is afforded great deference. Mickens v.

       State, 742 N.E.2d 927, 929 (Ind. 2001). This is so because the trial judge is in

       the best position to gauge the surrounding circumstances of an event and its

       impact upon the jury. Id.


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[12]   A mistrial is an extreme remedy that is only justified when other remedial

       measures are insufficient to rectify the situation. Id. To prevail on appeal from

       the denial of a motion for mistrial, the appellant must establish that the

       challenged 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. The

       gravity of the peril is determined by considering the misconduct’s probable

       persuasive effect on the jury’s decision, not the impropriety of the conduct. Id.


[13]   Here, M.M. was asked why she believed the situation to be her fault. Although

       the question concerned M.M.’s state of mind, she replied unresponsively,

       instead focusing upon Singleton’s family circumstances. This does not support

       a claim that the State deliberately elicited testimony proscribed by an order in

       limine.


[14]   The trial court instructed the jury to disregard any evidence of a possible

       pregnancy. A contemporaneous admonition is presumed to have cured any

       error. See Gamble v. State, 831 N.E.2d 178, 184 (Ind. Ct. App. 2005), trans.

       denied. We also observe that Singleton did not renew the request for a mistrial

       after the admonition. See Washington v. State, 902 N.E.2d 280, 289-90 (Ind. Ct.

       App. 2009) (observing that if an admonishment is insufficient to cure the error,

       the defendant must request a mistrial), trans. denied. Singleton failed to show

       that M.M.’s isolated reference to a pregnancy – after her explicit testimony

       relating the details of the crimes – placed Singleton in a position of grave peril

       to which he should not have been subjected. The denial of a mistrial did not

       constitute an abuse of discretion.

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                                                  Sentence
[15]   Upon conviction of a Class A felony,3 Singleton was subject to a sentence of

       between twenty years and fifty years, with thirty years as the advisory term.

       I.C. § 35-50-2-4. Upon conviction of a Class C felony,4 Singleton was subject to

       a sentence of between two years and eight years, with four years as the advisory

       term. I.C. § 35-50-2-6. Singleton’s thirty-eight-year aggregate sentence is

       comprised of a thirty-eight-year sentence for the Class A felony and a

       concurrent five-year sentence for the Class C felony. Three years were

       suspended to probation. When imposing this sentence, the trial court found

       Singleton’s violation of a position of trust and greater than typical harm to the

       victim to be aggravators.5 In mitigation, the trial court recognized Singleton’s

       lack of criminal history, military service, hardship to his dependents, his

       remorse, and the surrender of his teacher’s license.


[16]   The authority granted to this Court by Article 7, § 6 of the Indiana Constitution

       permitting appellate review and revision of criminal sentences is implemented

       through Appellate Rule 7(B), which provides: “The Court may revise a

       sentence authorized by statute if, after due consideration of the trial court’s

       decision, the Court finds that the sentence is inappropriate in light of the nature




       3
           The offense is now a Level 1 felony.
       4
           The offense is now a Level 5 felony.
       5
        Because of publicity surrounding the case, M.M. received social media messages from other students
       blaming her for a teacher’s incarceration.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1407-CR-323| February 27, 2015        Page 7 of 10
       of the offense and the character of the offender.” In performing our review, we

       assess “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.”

       Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such

       review is to attempt to leaven the outliers. Id. at 1225. A defendant ‘“must

       persuade the appellate court that his or her sentence has met th[e]

       inappropriateness standard of review.”’ Anglemyer v. State, 868 N.E.2d 482, 494

       (Ind. 2007) (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).


[17]   As to the nature of Singleton’s offenses, he used his position as a teacher to gain

       access to M.M. during and after school hours. He professed love for M.M.,

       encouraged her to communicate with him, and persuaded her to join an

       academic competition team. Singleton repeatedly kissed M.M. Eventually,

       Singleton digitally penetrated M.M.’s vagina. The two made plans to meet and

       have intercourse at a later time.


[18]   As to Singleton’s character, he had historically been a productive citizen.

       Singleton had no criminal history; he had assisted his single mother in rearing

       his younger siblings; he had served in the military; he had been honored as a

       teacher of the year; he provided financial support for his family. While

       incarcerated for these offenses, Singleton provided tutoring to other inmates.


[19]   Having reviewed the matter, we conclude that the thirty-eight year sentence is

       an outlier. It is in excess of that sought by the State and that recommended by

       the probation department. M.M.’s step-father was permitted to testify at some


       Court of Appeals of Indiana | Memorandum Decision 32A01-1407-CR-323| February 27, 2015   Page 8 of 10
       length that his family had suffered because Singleton had withdrawn from a

       plea bargain. Thus, it appears that Singleton may have been penalized for

       exercising his Constitutional right to a trial by jury. We conclude that a

       sentence of twenty years for a Class A felony – with no portion suspended to

       probation – is appropriate. Therefore, because his sentence for the Class C

       felony is concurrent, Singleton’s aggregate sentence is twenty years.



                                        No Contact Order
[20]   At the conclusion of the sentencing hearing, the trial court advised Singleton of

       the terms of his probation. Included was a provision that Singleton not have

       contact with a person under age eighteen. Defense counsel interposed: “I’m

       wondering if you would consider modifying any of the conditions of probation

       relating to minors under the age of 18 to not apply as to his son” and observed

       that Singleton could possibly be released before his son turned eighteen. (Tr.

       825.) The trial court replied: “These conditions won’t start until he’s released

       from custody” and “I’m not going to do that today.” (Tr. 825.)


[21]   Singleton interprets the trial court’s deferment of the motion to modify a

       probationary term until his release to constitute a prohibition against any form

       of contact with his minor son during his incarceration. We do not agree that

       this is the import of the trial court’s language.


[22]   First, we observe that defense counsel asked the trial court to modify a

       probationary term. The request did not concern a no-contact order pursuant to


       Court of Appeals of Indiana | Memorandum Decision 32A01-1407-CR-323| February 27, 2015   Page 9 of 10
       Indiana Code section 35-38-1-30 – a statute which provides that a court may

       impose a no-contact order as a condition of an executed sentence.


[23]   Second, the trial court was not asked to clarify what parental rights, if any,

       Singleton would exercise during his incarceration. From the argument

       presented at sentencing, it appears that Singleton’s marriage remains intact and

       his wife is willing to facilitate Singleton’s contact with his son. Absent a court

       order to the contrary, it is within the prerogative of a custodial parent to

       determine the extent of his or her child’s contact with other individuals. See In

       re K.I., 903 N.E.2d 453, 462 (Ind. 2009) (recognizing that a parent has a

       fundamental right to control the upbringing, education, and religious training of

       his or her child).



                                               Conclusion
[24]   Singleton’s convictions are affirmed. His sentence is revised to twenty years.


[25]   Affirmed in part; reversed in part.


       Robb, J., and Brown, J., concur.




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