Jacob v. State Of Ind.
| Decision Date | 28 February 2011 |
| Docket Number | No. 29A02-1004-CR-584,29A02-1004-CR-584 |
| Parties | GREGORY JACOB, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
ATTORNEY FOR APPELLANT:
JOHN (JACK) F. CRAWFORD Crawford & Devane Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER Attorney General of Indiana.
ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana.
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.
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Daniel J. Pfleging, Judge
Gregory Jacob appeals his convictions for criminal deviate conduct, as a Class A felony; sexual battery, as a Class C felony; intimidation, as a Class C felony; and criminal confinement, as a Class B felony, following a jury trial, as well as the sentences imposed. Jacob presents the following issues for review:
We affirm in part and reverse and remand in part.
On November 26, 2007, H.P. was working in a model home in Hamilton County as an area manager for a residential development company. The model home contained a presentation area and an office in what would have been the garage of the home. Regular entry doors from the exterior into the presentation area replaced the garage door. At 7:20 in the evening, H.P. began locking the model home doors in preparation to leave for home when she heard the door to the presentation area swing open. She turned around to "greet whoever it was and a man was running at [her] with a hooded sweatshirt on, overhis head like that, and a gun up in the air." Transcript at 114. The hood of the dark, oversized sweatshirt hung over and "completely shadowed" the man's face. Id. at 115. Three weeks after the event, H.P. identified the man as Jacob.
H.P. screamed, and Jacob yelled, "shut up, bitch." Id. H.P. asked Jacob not to kill her. Jacob grabbed her right arm and, with the gun in her back, moved her to the office in the back of the garage area. From there, he moved H.P. up two steps into the model home. Jacob asked about a door off the kitchen, and H.P. replied that it led to the basement. Still holding H.P.'s arm, Jacob directed her to the finished portion of the basement and then asked about a door there. H.P. told him that the door led to the unfinished part of the basement. Still armed, Jacob moved her into the unfinished room.
While standing behind H.P., Jacob ordered her to her knees. She asked him not to kill her. With his zipper open, he rubbed his penis against H.P.'s bottom over her pants. He then told her to "undo" her pants, and she complied. Jacob said, "Suck my dick," but H.P. replied, "I can't." Id. at 122-23. Jacob "moved [her] from that kneeling position, facing away from him, down onto her stomach flat[.]" Id. at 119. While H.P. was lying down, Jacob inserted his fingers in her anus. H.P. said "ouch" and he stopped, and then did it again, this time putting his fingers from one hand in her anus and fingers from his other hand in her mouth. H.P. again said "ouch." Id. at 125. Jacob also rubbed his penis against H.P. while she was lying down.
Still behind H.P., the two stood up. Jacob lifted her shirt and bra and felt her breasts. He then told her to get down, and she lay down on her back with her knees up. Jacob then straddled H.P.'s head and bent over so his head was at her feet, leaving hisgenital area closest to her face. H.P. then moved to sit on the couch that was in the room. Jacob showed H.P. the gun and told her that if she moved he would "blow [her] fucking head off." Id. at 127. Jacob left the room.
H.P. waited, listened, and called "Sir" several times before she exited the basement. When she went up to the office, she picked up her keys and salad bowl and "got into [her] car as fast as [she] possibly could." Id. at 129. She telephoned her home, which was only two minutes from the model home. H.P.'s mother answered, and H.P. asked her to tell H.P.'s husband to meet H.P. outside when she got home. Once home, H.P. told her husband what had happened. The two then went inside, where they called the police.
When police arrived, she described the perpetrator as an African American or Hispanic male, definitely "ethnic" based on the darkness of the skin she had seen on his jaw under the hood. Id. at 131. She noted that "when he said 'shut up, bitch, ' the word 'bitch' didn't sound like a white person saying 'bitch.' " Id. She also told police that she felt that she knew the perpetrator. Later she realized that his voice had sounded familiar. She also described her attacker as five feet eight inches tall and of slender build, though she later conceded that he had seemed huge to her as he ran at her at the beginning of the attack.
H.P. had met Jacob on at least four occasions when he and his girlfriend, Venus Loy, were shopping for a house. They first met in the spring of 2007, and Loy purchased a home that summer. Jacob had also brought his parents and Loy's mother to purchase homes. And Jacob and another man had been in the model home where H.P. workedsometime in October. On December 17, H.P. contacted police and told her that Jacob may have been her attacker.
On April 22, 2008, police executed a search warrant for "biological evidence for an Indiana State Police rape suspect kit." Id. at 438. In execution of the warrant, paramedics drew Jacob's blood at the Carmel Police Department. Jacob was at the Department at least two hours. While there, Jacob said he had not tried to rape anyone, but he also asked "did she see me do something to her." Id. at 440. When asked, Jacob acknowledged that he had been at several model homes in the area. Seminal material found on H.P.'s pants from the night of the attack matched Jacob's DNA profile.
Jacob has an identical twin brother, Jeff Jacob ("Jacob's twin"). H.P. had never met or talked to Jacob's twin and was unaware that Jacob had a brother. Jacob and his twin do not have identical appearances. Jacob is five feet three inches tall and weighs approximately 140 pounds. The twin is two inches taller, approximately twenty pounds heavier, and has a rounder face. In November 2007, Jacob and his twin both worked for Damar Services, which is south of Indianapolis. Jacob's supervisor was Cindy Hodge, the twin's live-in girlfriend. Jacob and his brother had the same type of cell phone but separate phone numbers.
Jacob was scheduled to work on the date of the attack, but Hodge clocked him in and out on that date. Co-workers had frequently complained that Jacob did not show up for work when scheduled, disappeared for long periods during his shift, or left work before his shift had ended. Loy's home, where Jacob also lived, was a couple of minutes from the model home where H.P. was attacked.
The State charged Jacob with criminal deviate conduct, as a Class A felony; sexual battery, as a Class C felony; battery, as a Class C felony; intimidation, as a Class C felony; and criminal confinement, as a Class B felony. At the start of trial, the court granted Jacob's motion for separation of witnesses and admonished the witnesses present accordingly. Loy, a defense witness, was not in the courtroom at the time, but she learned from Jacob's lawyer that she could not be in the courtroom while testimony was being given. Loy's mother was in the courtroom on the first day of trial.
After the first day of trial, Jacob and Loy talked over the prison phone about the witnesses' testimony and the objections that had been lodged. In particular, Jacob and Loy discussed details about H.P.'s testimony. As a result, the State moved to bar Loy from testifying due to violation of the separation of witnesses order. The trial court listened to tapes of the telephone conversations. Over Jacob's objection and proffer of evidence, the trial court granted the motion and barred Loy's testimony.
At the close of evidence and following deliberations, the jury found Jacob guilty of all charges. The court entered judgment of conviction for criminal deviate conduct, as a Class A felony; sexual battery, as a Class C felony; intimidation, as a Class C felony; and criminal confinement, as a Class B felony.1 The court sentenced Jacob to forty-five years for criminal deviate conduct, seven years for sexual battery, seven years for intimidation, and eighteen years for criminal confinement, to be served consecutively.
Jacob filed a motion to correct error. Following an evidentiary hearing, the court denied the motion. Jacob now appeals.
Jacob contends that the trial court abused its discretion when it excluded Loy's testimony for violating the separation of witnesses order. Specifically, he argues that there was no violation of the separation order and, even if a violation occurred, the sanction of excluding Loy's testimony was an abuse of discretion. We address each contention in turn.
Indiana Rule of Evidence 615, which governs separation orders, provides:
At the request of a party, the court shall order witnesses excluded so...
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