Greenboam v. State

• Decision Date: 30 April 2002
• Docket Number: No. 46A03-0103-CR-79.,46A03-0103-CR-79.
• Citation: 766 N.E.2d 1247
• Parties: Robert W. GREENBOAM, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

766 N.E.2d 1247

Robert W. GREENBOAM, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 46A03-0103-CR-79.

Court of Appeals of Indiana.

April 30, 2002.

Peter L. Boyles, Martz & Boyles, Valparaiso, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SHARPNACK, Judge.

Robert W. Greenboam appeals his convictions for four counts of child molesting as class A felonies.¹ Greenboam raises three issues, which we restate as:

1. Whether the trial court abused its discretion by admitting testimony regarding Greenboam's prior molestation of the current victim and another child;

2. Whether the evidence is sufficient to sustain his convictions for child molesting; and

3. Whether the sentence imposed by the trial court was manifestly unreasonable.

We reverse and remand.

The facts most favorable to the convictions follow. On December 8, 1998, Greenboam was charged with four counts of child molesting as class A felonies and six counts of child molesting as class C felonies² for the molestation of his thirteen-year-old daughter, C.G. The charges relate to incidents of molestations that occurred between August 1997 and November 1998 at the family's residence or in the cab of Greenboam's semi-truck which was parked outside the family's residence.

On one occasion, Greenboam woke C.G., grabbed her by the arm, and dragged her to the bathroom. Greenboam told C.G. to lick her hand and then forced C.G. to touch his penis. Greenboam also forced C.G. to place her mouth on his penis, and he ejaculated in her mouth. C.G. then vomited on him. Greenboam told C.G. not to tell anyone about the incident.

On another occasion, Greenboam woke C.G. and took her downstairs to the hallway near the bathroom. Greenboam told C.G. to lick her hand and forced her to touch his penis. Greenboam also touched C.G.'s chest during the incident. After Greenboam ejaculated, he made C.G. get down on her hands and knees. He then "put his penis in [her] butt" and moved "back and forth." Transcript at 430-431. C.G. said that it hurt and she cried. Greenboam threatened to kill C.G. during this incident.

On a third occasion, Greenboam woke C.G. and told her to go outside to the cab of his semi-truck. In the truck, Greenboam instructed C.G. to remove her clothing. Greenboam removed his clothing, made C.G. lick her hand, and made C.G. touch his penis. During this incident, Greenboam touched C.G.'s chest and inserted his finger into her vagina. Greenboam warned C.G. not to tell or she would go to foster care. He also told C.G. that she looked like her mother and that C.G. should not cry because "it should feel good."

On a fourth occasion, C.G. again went outside to the cab of the semi-truck. Greenboam entered the truck and removed his clothing. He told C.G. to remove her clothing, lick her hand, and touch his penis. Greenboam also made C.G. put her mouth on his penis. On a fifth occasion, while the family was seated at the dinner table, Greenboam touched C.G.'s chest and crotch through her clothing.

When questioned by Captain George Ritter of the LaPorte County Sheriff's Department in November 1998, Greenboam stated that "he did not touch [C.G.]'s breasts or crotch since the last time he did it in the past." Transcript at 399. Greenboam was evidently referring to two counts of child molesting as class C felonies to which he had pleaded guilty in August 1996 for molesting C.G. and his step-daughter, S.H.

On November 2, 2000, a jury found Greenboam guilty of four counts of child molesting as class A felonies and six counts of child molesting as class C felonies. The trial court merged the class C felony convictions with the class A felony convictions. The trial court then sentenced Greenboam to fifty years in the Department of Correction for each count of child molesting as a class A felony. The trial court ordered the four sentences to be served consecutively. Thus, Greenboam was sentenced to an aggregate 200 year sentence.

I.

The first issue is whether the trial court abused its discretion by admitting testimony regarding Greenboam's prior molestations of C.G. and S.H. The admission or exclusion of evidence is a matter left to the sound discretion of the trial court, and we will reverse only upon an abuse of that discretion. Sundling v. State, 679 N.E.2d 988, 992 (Ind.Ct.App. 1997), reh'g denied. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances. Smith v. State, 754 N.E.2d 502, 504 (Ind.2001). We must first address the State's argument that Greenboam waived any objection to the testimony regarding his prior bad acts by failing to object contemporaneously when the evidence was presented at trial. On appeal, a party may not assert that the trial court erred by overruling a motion seeking the exclusion of evidence unless the party objected to the evidence at the time it was offered. Sisk v. State, 736 N.E.2d 250, 251 (Ind. 2000). However, we have approved the use of continuing objections where "the record demonstrates that the continuing objection fully and clearly advised the trial court of the specific grounds for the objection." Sullivan v. State, 748 N.E.2d 861, 864 (Ind.Ct.App.2001).

In this case, Greenboam filed a motion in limine seeking to exclude any evidence of prior molestations by Greenboam. After jury selection but prior to opening statements by counsel, the trial court heard argument on the issue. The trial court permitted the testimony under Ind. Evidence Rule 404(b) to show Greenboam's common plan or scheme to molest C.G.

Evidence of Greenboam's prior molestations of C.G. and S.H. was presented through the testimony of Captain Ritter, C.G., and S.H. Greenboam did not object at the time Captain Ritter testified regarding Greenboam's prior molestation of C.G. However, before Captain Ritter's challenged testimony, the following colloquy occurred regarding the prior molestations:

Court: For the record, the language that [prosecutor] prepared, [defense counsel] cleared it with his client and [defense counsel] just said that it was okay, but that is in no way waiving any of his objections that he made to this at the very beginning, right?

Defense Counsel: That's correct, those objections stand by giving your ruling, then the language as, as proposed the alterations in the language would be acceptable given your ruling.

The Court: Right, not waiving any of the objections—

Defense Counsel: Exactly.

The Court:—he had previously raised.

Transcript at 389-390. Although certainly not a model of clarity, this discussion was sufficient to advise the trial court of Greenboam's continuing objections. See, e.g., Sullivan, 748 N.E.2d at 864.

Greenboam also did not object to C.G.'s testimony of the prior molestation. However, prior to C.G.'s testimony, while discussing the trial court's limiting instruction regarding Greenboam's prior molestations, the following comments were made:

Defense Counsel: So my objection still stands it [is] not a waiver.

The Court: Of course not, we'll show you're making a continuing objection to that entire line of testimony, and that the Court is overruling the objection for the record.

Transcript at 411. Greenboam's objection was sufficient to preserve the issue for our review. See, e.g., Sundling, 679 N.E.2d at 992 n. 3 (holding that defendant's objections were sufficient to preserve the issue for appellate consideration where defendant objected to the testimony of each witness at issue and the trial court overruled each objection and noted a continuing objection in each instance).

Similarly, immediately before the State's cross-examination of S.H., the trial court heard lengthy argument on the admission of Greenboam's prior molestation of S.H. and C.G. Although Greenboam did not object during the cross-examination of S.H., the lengthy argument prior to the State's cross-examination sufficiently apprised the trial court of Greenboam's objection and preserved the issue for our review. See, e.g., Martin v. State, 622 N.E.2d 185, 187 (Ind.1993) (holding that error was preserved for purposes of review where on two separate occasions during the trial before the evidence was admitted, the defendant brought the issue to the trial court's attention and the trial court informed him that the error was preserved), reh'g denied.

Because Greenboam preserved his objection to the evidence of his prior molestations, we must address whether the evidence is admissible under Ind. Evidence Rule 404(b). Ind. Evidence Rule 404(b) provides that:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

The rule is "designed to prevent the jury from assessing a defendant's present guilt on the basis of his past propensities." Hicks v. State, 690 N.E.2d 215, 218 (Ind. 1997). In determining whether to admit evidence under Ind. Evidence Rule 404(b), the trial court must: (1) determine whether the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act; and (2) balance the probative value of the evidence against its prejudicial effect pursuant to Ind. Evidence Rule 403.³ Id. at 221.

In 1996, Greenboam pleaded guilty to one count of child molesting as a class C felony for the molestation of C.G. and one count of child molesting as a class C...