Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the                                                 Apr 01 2014, 8:44 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

MATTHEW J. MCGOVERN                               GREGORY F. ZOELLER
Anderson, Indiana                                 Attorney General of Indiana

                                                  JODI KATHRYN STEIN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JEFFERY SPINKS,                                   )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )     No. 82A01-1307-CR-299
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                 APPEAL FROM THE VANDERBURGH CIRCUIT COURT
                         The Honorable Kelli E. Fink, Magistrate
                             Cause No. 82C01-1201-FA-124




                                        April 1, 2014



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Judge
                                         Case Summary and Issues

         Following a jury trial, Jeffery Spinks was convicted of three counts of child

molesting, each a Class A felony (Counts I-III); child molesting, a Class C felony (Count

IV); and sexual misconduct with a minor, a Class B felony (Count V). Spinks presents

three issues for our review:

     1. Whether the trial court erroneously permitted vouching testimony in
         violation of Indiana Evidence Rule 704(b);
     2. Whether Spinks was erroneously convicted under Count V for an
         offense with which he was never charged; and
     3. Whether the aggravated sentence is inappropriate and should be revised
         under Appellate Rule 7(B).
We conclude that any error in admitting the testimony was invited, but that Spinks was

erroneously convicted under Count V; nevertheless, we find that the sentence for his

remaining convictions is not inappropriate. Therefore, we affirm in part and reverse in

part.

                                       Facts and Procedural History

         In 2005, ten-year-old Am.B. and thirteen-year-old An.B., half-sisters (collectively,

“the sisters”), were placed with an aunt, uncle, and three younger cousins. The sisters

were formally adopted by the family in 2007.1 Their older cousin, Tosha, was in a

romantic relationship with Spinks, and the two lived together. In 2006, while Tosha was

babysitting the sisters, Spinks took Am.B. into the kitchen and caressed her genitals

through her clothing. At the time, Spinks was twenty-eight and Am.B. was eleven.

When Am.B. was twelve, Spinks asked Am.B. if he could touch her beneath her clothing.

She refused initially but eventually gave in at Spinks’s insistence. Spinks put his finger


          1
            Though after the adoption the aunt and uncle legally became the sisters’ parents and their cousins became
siblings, for clarity, the relevant individuals will be referred to by their pre-adoption relationships.
                                                         2
in Am.B.’s vagina and told Am.B. not to tell anyone about the contact. Around the same

time, Spinks asked Am.B. to touch him. Am.B. was reluctant but eventually agreed. She

first touched him through his clothes, and then proceeded to touch his penis directly.

When she was thirteen, Am.B. twice performed oral sex on Spinks. Spinks told Am.B.

that he wanted to take her virginity. The first four times he attempted to have intercourse

with Am.B., Spinks was unsuccessful. Spinks then had intercourse with Am.B. three

separate times at Am.B.’s home.

        Spinks also had intercourse with An.B. once at his house when An.B. was

fourteen. There was no other sexual contact between the two. An.B. did not tell anyone,

but she kept a journal and in it discussed her relationship with Spinks. Tosha found the

journal, and An.B.’s aunt and uncle confronted her about what she wrote. None of the

adults made a report about this sexual contact to the Indiana Department of Child

Services or police.

         In November 2011, Am.B. told a school counselor about Spinks’s sexual contact

with her.      Spinks was subsequently interviewed by Detective Brian Turpin of the

Evansville Police Department, and he admitted to telling Am.B. that he loved her but not

in a sexual way. He denied all allegations of sexual contact between himself and either

of the sisters.

        On January 26, 2012, Spinks was charged with child molesting, a Class A felony

(Counts I-III); child molesting, a Class C felony (Count IV); and child molesting, a Class

A felony (Count V).2 Spinks’s trial was originally set for March 2013 but was continued



       2
         Counts I-IV were all based on Spinks’s conduct with Am.B. Count V was based on the conduct with
An.B. Spinks was also initially charged with two other counts of child molesting relating to another victim, but the
                                                         3
after one of the State’s witnesses was in a car accident. The case was reset to April 3,

2013, but ended in a mistrial after a witness violated a motion in limine. The second jury

trial was held April 22-23, 2013, and at the end of the State’s presentation of evidence,

Spinks moved for judgment on the evidence. The court denied the motion as to Counts I-

IV, but granted it as to Count V. The court agreed with Spinks that the State failed to

prove An.B. was under the age of fourteen at the time of the crime in order to meet all of

the elements of the child molesting statute; the evidence was that An.B. was fourteen at

the time. The court then allowed the State to proceed under Count V by considering the

offense of sexual misconduct with a minor as a lesser included offense of child

molesting. Spinks’s renewed motion for judgment on the evidence at the conclusion of

the case was denied. The jury returned a guilty verdict on all charges. Spinks was

sentenced to forty-five years each on Counts I-III, seven years on Count IV, and eighteen

years on Count V, all to run concurrently, for an aggregate of forty-five years executed.

This appeal followed.

                                         Discussion and Decision

                             I. Detective Turpin’s Vouching Testimony

                                          A. Standard of Review

        Spinks first argues that Detective Turpin’s testimony amounted to impermissible

vouching of the sisters’ testimony in explaining the delay between the time the acts

occurred and when the incidents were reported. Indiana Evidence Rule 704(b) prohibits a

witness from providing opinions about “intent, guilt, or innocence in a criminal case; the


court severed those counts and they are irrelevant to this appeal. An habitual offender enhancement was also filed
but dismissed by the State after the trial.

                                                        4
truth or falsity of allegations; whether a witness has testified truthfully; or legal

conclusions.” This type of testimony invades the province of the jury to determine what

weight should be placed upon a witness’s testimony. Gutierrez v. State, 961 N.E.2d

1030, 1034 (Ind. Ct. App. 2012). Generally, though, “errors in the admission of evidence

are to be disregarded unless they affect the substantial rights of a party. In viewing the

effect of the evidentiary ruling on a defendant’s substantial rights, we look to the

probable impact on the fact finder.” Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind.

2012).

         Spinks did not object to Detective Turpin’s testimony at trial but claims

nonetheless we should overturn his convictions based on the extremely narrow rule of

fundamental error. The failure to object typically results in forfeiture and precludes

appellate review unless the admission created a fundamental error. Konopasek v. State,

946 N.E.2d 23, 27 (Ind. 2011).        Fundamental error occurs when the admission of

evidence “makes a fair trial impossible or constitutes clearly blatant violations of basic

and elementary principles of due process presenting an undeniable and substantial

potential for harm.” Gutierrez, 961 N.E.2d at 1034 (citation omitted).

                             B. Detective Turpin’s Testimony

         After Detective Turpin testified, the jury submitted the following question: “What

is the average delay time when a victim reports a sex crime?” There was a follow-up

question of, “What is the longest you can remember?”           Transcript at 242.    When

reviewing the first question with the court before it was asked of the detective, defense

counsel stated, “No, I don’t object.” Id. The court then asked if it was okay to ask the

second part of the question, and defense counsel stated, “Yes.” Id. at 243. On appeal,
                                              5
Spinks cannot now complain about the admissibility of the answer to these questions

because he expressly agreed the questions were acceptable. A party may not invite error

and then later argue that the error supports reversal. Kingery v. State, 659 N.E.2d 490,

494 (Ind. 1995). This type of error also is not fundamental error. Id. Spinks is therefore

estopped from claiming error based on questioning to which he expressly consented.

                                      II. The Amendment of Count V

        At the conclusion of the State’s case-in-chief, Spinks moved for a judgment on the

evidence as to all counts. After hearing arguments on Spinks’s motion for judgment on

the evidence, the court concluded that as to Counts I-IV, the motion was denied, but as to

Count V, the motion was granted. Subsequently, the court, over Spinks’s objection,

allowed the State “to proceed on the lesser offense of Count V.” Tr. at 270.

        Spinks argues the sexual misconduct with a minor charge was improperly treated

as a lesser included offense of child molesting, and any subsequent jury instruction

regarding that count was in error. The State argues that the change from child molesting

to sexual misconduct with a minor was an amendment to the count altogether, not a lesser

included offense, and because the change was only of form, not substance, it was

appropriate. The trial court’s ruling is unclear as to whether it treated sexual misconduct

with a minor as a lesser included offense of child molesting or if it treated the motion as

an amendment altogether.3                 We will analyze the change to Count V under both

possibilities, but reach the same conclusion: the change was impermissible.


        3
            The confusion arises from many conflicting statements made at trial:

State: Your Honor, and just for the record purposes, we have indicated that based on the testimony, we’ve
indicated both to [defense counsel] and the Court this morning that depending on the testimony of [An.B.], that the
State would be asking for a lesser included Sexual Misconduct on that charge that reflects her. [sic] Tr. at 254.
                                                          6
  A. Sexual Misconduct with a Minor as a Lesser Included Offense of Child Molesting

                                              1. Standard of Review

         Instructing the jury is a task which lies within the discretion of the trial court.

Hartman v. State, 669 N.E.2d 959, 962 (Ind. 1999).                                We will reverse only if the

instruction given constitutes an abuse of discretion.                           Id.    We evaluate whether the

allegedly erroneous instruction so affects the entire charge that the jury was misled as to

the law of the case. McCullough v. State, 608 N.E.2d 1009, 1010 (Ind. Ct. App. 1993).

If so, reversal is required. Id. If, as a whole, the instructions correctly and fully state the

law, the instructions are not erroneous. Id.

                                           2. Lesser Included Offense

         A criminal defendant is entitled to clear notice of the charges against him. Ind.

Const. art. 1, § 13. “When a defendant is convicted of a lesser included offense which

was not separately charged by the State, we look to whether the accused was placed upon

***
State: In this case, the threshold age was fourteen for [An.B], you know, by it’s [sic] very nature, a lesser included
offense is something that has been proved, by the evidence, to be an offense against the laws of the State that’s
included in the main charge, but not necessarily the main charge is not proven, and I think that the State is clearly
entitled to a lesser included in [sic] this. It’s, by it’s [sic] very nature, a lessor [sic] included offense. Id. at 262-63.
***
Court: …[B]ut I do think, based on the Barger case, the State is requesting an opportunity to proceed, and I think,
as [defense counsel] indicated, it is basically a Motion to Amend, it could be considered a Motion to Amend, but
either way, they are requesting an opportunity to proceed on the lessor [sic] class offense of Sexual Misconduct
With a Minor as a B felony, and I am going to allow them to do that, so they will be allowed to do that as to Count
V. Id. at 264.
***
Court: I don’t know if the proper thing to do is to tell them verbally that I’ve determined that they are not going to
consider Count V as an A felony, but I’ve determined it’s a B felony, I’m open to suggestions for that or if you want
me to put in in the instructions, I could do that too.
Spinks: I just think if you’re not going to dismiss it, they have to have a verdict form on it.
Court: On?
Spinks: Count V.
Court: I think I’ve granted, I may not have said it, but I think I’ve granted judgment on the evidence as to Count
V, but allowed them to proceed. . .
Spinks: Oh, okay.
Court: But allowed them to proceed on the lessor [sic] offense of Count V. Tr. at 269-70.
***
Spinks: So that’s going to be substituted Count V?
Court: Yes, yes. Id. at 271.
                                                             7
fair notice as to the crime against which he must defend.” McGowan v. State, 671

N.E.2d 1210, 1212 (Ind. Ct. App. 1996). Our supreme court has established a three-step

test to determine if one offense is a lesser included offense of another:

        First, the trial court must compare the statute defining the crime charged
        with the statute defining the alleged lesser included offense to determine if
        the alleged lesser included offense is inherently included in the crime
        charged. Second, if a trial court determines that an alleged lesser included
        offense is not inherently included in the crime charged under step one, then
        it must determine if the alleged lesser included offense is factually included
        in the crime charged. If the alleged lesser included offense is neither
        inherently nor factually included in the crime charged, the trial court should
        not give an instruction on the alleged lesser included offense. Third, if a
        trial court has determined that an alleged lesser included offense is either
        inherently or factually included in the crime charged, it must look at the
        evidence presented in the case by both parties to determine if there is a
        serious evidentiary dispute about the element or elements distinguishing the
        greater from the lesser offense and if, in view of this dispute, a jury could
        conclude that the lesser offense was committed but not the greater.

Webb v. State, 963 N.E.2d 1103, 1106 (Ind. 2012) (citations and quotations omitted).

        When analyzing the first step, if the alleged lesser included offense may be

established by proof of the same material elements or less than all the material elements,

it is inherently included in the crime charged. Sturgeon v. State, 719 N.E.2d 1173, 1182

(Ind. 1999).       Applying that, it is apparent sexual misconduct with a minor is not

inherently included in the language of the child molesting statute. The offense of child

molesting, Indiana Code section 35-42-4-3, is defined as:4

        (a) A person who, with a child under fourteen (14) years of age, performs
        or submits to sexual intercourse or deviate sexual conduct commits child
        molesting, a Class B felony. However, the offense is a Class A felony if:
               (1) it is committed by a person at least twenty-one (21) years of age;
               (2) it is committed by using or threatening the use of deadly force or
               while armed with a deadly weapon;

         4
           Only the relevant portions of the statute which the court considered as the charged offense and lesser
included offenses have been reproduced here.
                                                       8
              (3) it results in serious bodily injury; or
              (4) the commission of the offense is facilitated by furnishing the
              victim, without the victim’s knowledge, with a drug (as defined in
              IC 16-42-19-2(1)) or a controlled substance (as defined in IC 35-48-
              1-9) or knowing that the victim was furnished with the drug or
              controlled substance without the victim’s knowledge.

The offense of sexual misconduct with a minor, Indiana Code section 35-42-4-9, is

defined as:

      (a) A person at least eighteen (18) years of age who, with a child at least
      fourteen (14) years of age but less than sixteen (16) years of age, performs
      or submits to sexual intercourse or deviate sexual conduct commits sexual
      misconduct with a minor, a Class C felony. However, the offense is:
             (1) a Class B felony if it is committed by a person at least twenty-
             one (21) years of age; and
             (2) a Class A felony if it is committed by using or threatening the
             use of deadly force, if it is committed while armed with a deadly
             weapon, if it results in serious bodily injury, or if the commission of
             the offense is facilitated by furnishing the victim, without the
             victim’s knowledge, with a drug (as defined in IC 16-42-19-2(1)) or
             a controlled substance (as defined in IC 35-48-1-9) or knowing that
             the victim was furnished with the drug or controlled substance
             without the victim’s knowledge.
Age is a material element of each statute; the State must prove the victim of child

molesting is under the age of fourteen and that the victim of sexual misconduct with a

minor is at least fourteen and less than sixteen years old. A victim either is or is not older

than fourteen at the specific time a crime occurs; she cannot be both. Sexual misconduct

with a minor therefore is not inherently included in child molesting.

       As to the second step, if the charging instrument alleges that the means used to

commit the crime charged include all of the elements of the alleged lesser included

offense, then the alleged lesser included offense is factually included in the crime

charged. Sturgeon, 719 N.E.2d at 1182-83. Sexual misconduct with a minor is not


                                              9
factually included in the charged offense. Count V alleges: “[B]etween May 1, 2006 and

August 1, 2007, [Spinks], being at least twenty-one (21) years of age, did perform sexual

intercourse with a child under the age of fourteen (14) years, to-wit: An.B. . . .”

Appellant’s Appendix at 20. This charged conduct did not satisfy all the elements of

sexual misconduct with a minor because it did not allege Spinks engaged in sexual

intercourse with a child at least fourteen and under sixteen.

       Because sexual misconduct with a minor is not either inherently or factually a

lesser included offense of child molesting, the trial court’s instruction to the jury on this

count was so erroneous as to mislead the jury as to the law of the case and the conviction

must be reversed.

                                B. Amendment of Count V

                                  1. Standard of Review

       The State urges us to consider the change in Count V as an amendment of the

charge. Amendments can either be substantive amendments, amendments of form, or

amendments to correct immaterial defects; all are governed by Indiana Code section 35-

34-1-5. An amendment may be made at any time to correct an immaterial defect. Ind.

Code § 35-34-1-5(a). An amendment may also be made at any time before, during, or

after a trial to correct “any defect, imperfection, or omission in form which does not

prejudice the substantial rights of the defendant.”       Ind. Code § 35-34-1-5(c).      An

amendment of substance is also permissible, but under more narrow circumstances:

       (b) The indictment or information may be amended in matters of substance
       and the names of material witnesses may be added, by the prosecuting
       attorney, upon giving written notice to the defendant at any time:
              (1) up to:

                                             10
                          (A) thirty (30) days if the defendant is charged with a felony;
                ***
                before the omnibus date; or
                (2) before the commencement of trial;
        if the amendment does not prejudice the substantial rights of the defendant.
        When the information or indictment is amended, it shall be signed by the
        prosecuting attorney or a deputy prosecuting attorney.

Ind. Code § 35-34-1-5(b). Whether an amendment is of substance or form is a question

of law, which we review de novo. Gibbs v. State, 952 N.E.2d 214, 221 (Ind. Ct. App.

2011), trans. denied.

        Here, it is important to recognize what the trial court actually did when it agreed to

allow the change from child molesting to sexual misconduct with a minor: the court

granted Spinks’s motion for a judgment on the evidence as to Count V. Trial Rule 50(A)

provides:

        Where all or some of the issues in a case tried before a jury or an advisory
        jury are not supported by sufficient evidence or a verdict thereon is clearly
        erroneous as contrary to the evidence because the evidence is insufficient to
        support it, the court shall withdraw such issues from the jury and enter
        judgment thereon or shall enter judgment thereon notwithstanding a verdict.

The trial court properly withdrew Count V (child molesting) from the jury. 5 Count V

then, in effect, did not exist to be amended. That would mean the State’s amended Count

V (sexual misconduct with a minor) was actually a new charge (with a duplicative count

number), not the revision of an existing charge, since the once-existing charge had

already been dismissed.6




        5
          The record is silent as to if the court actually entered a judgment of acquittal for Spinks on Count V -
child molesting after granting his motion.
        6
           We do not reach the question of whether the amendment would have been one of form or substance had
the trial court not entered judgment on the evidence in the defendant’s favor on Count V before attempting to
modify the charge.
                                                       11
        Our first step then is to determine whether the amendment was of substance, or

one of form or immaterial defect. Fajardo v. State, 859 N.E.2d 1201, 1207 (Ind. 2007).

“[A]n amendment is one of form, not substance, if both (a) a defense under the original

information would be equally available after the amendment, and (b) the accused’s

evidence would apply equally to the information in either form. And an amendment is

one of substance only if it is essential to making a valid charge of the crime.” Id. The

original charging information accused Spinks of three counts of Class A felony child

molesting and one count of Class C felony child molesting with regards to Am.B. and

Class A felony child molesting against An.B.                  The amended charging information

accused Spinks of the aforementioned conduct and added the new charge of Class B

sexual misconduct with a minor.               Our supreme court has stated, “[B]ecause the

amendment charges the commission of a separate crime, it also is unquestionably

essential to making a valid charge of the crime, and thus it is not disqualified from being

considered an amendment to a matter of substance.” Id. at 1208.7

        Under the circumstances of this case, we consider the addition of an entirely new

charge, comprised of distinct elements from which Spinks was originally charged, to be

an amendment of substance. This amendment then was required to be made before trial,

and in writing. Ind. Code § 35-34-1-5(b). Here, the amendment was not sought until

after the conclusion of the State’s case-in-chief. Using this analysis, the conviction and

sentence for Count V, sexual misconduct with a minor, also must be vacated.




        7
          Our reasoning from Section II-A, supra, establishes that sexual misconduct with a minor and child
molesting are separate crimes.
                                                    12
                               III. Inappropriate Sentence

                                 A. Standard of Review

       Indiana Appellate Rule 7(B) gives reviewing courts the authority to revise a

defendant’s sentence “if, after due consideration of the trial court’s decision, the Court

finds that the sentence is inappropriate in light of the nature of the offense and the

character of the offender.” Our main purpose in reviewing a sentence is to “leaven the

outliers[] and identify some guiding principles for trial courts . . . but not to achieve a

perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

2008). The advisory sentence is our starting point for considering the nature of the

offense, and the aggravating and mitigating factors, along with other considerations, are

part of our review of the character of the offender. Clara v. State, 899 N.E.2d 733, 736

(Ind. Ct. App. 2009). It is the defendant’s burden to persuade the reviewing court that the

sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

                                  B. Spinks’s Sentence

       We first note that, because we have determined Spinks’s Class B felony sexual

misconduct with a minor conviction cannot stand, we will evaluate his sentence only with

regard to the remaining four convictions. Spinks was sentenced to an aggregate of forty-

five years executed in the Department of Correction; forty-five years for each of the three

Class A felonies and seven years for the Class C felony, all to run concurrently. A Class

A felony ranges in sentence from twenty to fifty years, with thirty years as the advisory

sentence. Ind. Code § 35-50-2-4. A Class C felony ranges from two to eight years, with

four years as the advisory sentence. Ind. Code § 35-50-2-6. The trial court found

Spinks’s mental health history as a mitigating circumstance. It found as aggravators his
                                            13
position of care and control over the sisters, the nature and circumstances of the crimes,

and his criminal history.

       Spinks argues that the nature of his offense was no worse than what is inherently

done in commission of the crime and that there was no evidence of brutality or violence.

He further argues that Am.B. was at the threshold-age of thirteen at the time some of the

crimes occurred and that should result in a sentence at the lower end. In Spinks’s

commission of his crimes, he asked Am.B. several times to participate in sexual activities

and repeated his requests until she would acquiesce, starting when she was just eleven

years old. He also gradually increased the type of sexual contact until he persuaded her

to have intercourse. Even after he was physically unsuccessful in having intercourse with

her, he tried repeatedly until he was successful. Spinks was in such a position of care and

trust as a family friend that both sisters felt as if he was a big brother to them. Spinks has

not carried his burden to persuade us that his sentence is inappropriate in light of the

nature of the offenses.

       Regarding his character, Spinks argues that despite his ten prior felony convictions

(burglary, theft, escape, residential entry, and six acts of auto theft), and one

misdemeanor conviction (driving while suspended), none of his crimes were crimes of

violence. In his pre-sentence investigation report, Spinks was assessed at a high risk to

reoffend. He has been in trouble with the authorities since he was a juvenile and still

continues this pattern of illegal conduct. While the trial court found that Spinks has

mental health issues as a mitigating factor, there is little in the record to convince us that,

based on his character, he is deserving of a reduced sentence. For these reasons, the


                                              14
sentence is not inappropriate in light of the nature of the offense and the character of the

offender.

                                         Conclusion

        We conclude that any error in admitting the allegedly vouching testimony was

invited, but that Spinks was erroneously convicted under Count V regardless if the charge

was treated as a lesser included offense or an amendment to the charging information.

Nonetheless, we find that the sentence on the remaining four convictions is not

inappropriate under Appellate Rule 7(B). Therefore, we affirm in part and reverse in

part.

        Affirmed in part, reversed in part.


BARNES, J., and BROWN, J., concur.




                                              15
