Sobolewski v. State

• Citation: 889 N.E.2d 849
• Decision Date: 08 July 2008
• Docket Number: No. 63A01-0802-CR-58.,63A01-0802-CR-58.
• Parties: Victor T. SOBOLEWSKI, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

889 N.E.2d 849

Victor T. SOBOLEWSKI, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 63A01-0802-CR-58.

Court of Appeals of Indiana.

July 8, 2008.

Steven E. Ripstra, Jasper, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BROWN, Judge.

Victor Sobolewski appeals his conviction and sentence for child exploitation as a class C felony¹ enhanced by his status as an habitual offender.² Sobolewski raises four issues, which we revise and restate as:

I. Whether the trial court abused its discretion by denying his requests for a continuance;

II. Whether the prosecutor committed prosecutorial misconduct;

III. Whether he was denied a fair trial as a result of certain remarks made by the prosecutor; and

IV. Whether his sentence is inappropriate in light of the nature of the offense and the character of the offender.

We affirm.

The relevant facts follow. S.H. was born on January 30, 1991. In August 2006, S.H. began working at a fast food restaurant, where she met Sobolewski, born on February 13, 1970, and also employed there. They later had sex. On February 7, 2007, Sobolewski called the police because he was afraid that "two gentlemen ... were going to start a fight with him at his residence." Transcript at 66. Petersburg Police Department Officer Steve Nash, responding to the call, found S.H. with Sobolewski at his residence, although it was a "school day." Id. at 62. S.H. seemed "giddy," and a breath test administered to her came back positive for alcohol. Id. at 63. She was sent to a juvenile detention center for one week and then placed on house arrest. Sobolewski was arrested, but a friend bonded him out of jail.

Shortly thereafter, Sobolewski was arrested for an unrelated offense, and S.H. spent $3,500 of her own money bonding him out of jail. Without her father's knowledge, she then let Sobolewski in through the back door of her father's house, and he stayed in her bedroom for several days. Using S.H.'s digital camera, Sobolewski took some pictures, including a picture of S.H. performing fellatio on him. On March 25, 2007, the police received information that Sobolewski was violating a court order by being with S.H. Petersburg Sheriff's Deputy Brad Jenkins and other officers went to the house of S.H.'s father and informed him that he had an intruder. They then found Sobolewski and S.H. in bed together with marijuana and alcohol in plain view.

On March 28, 2007, the State charged Sobolewski with: (1) Count I, child exploitation as a class C felony; (2) Count II, criminal trespass as a class A misdemeanor; (3) Count III, possession of marijuana as a class A misdemeanor; and (4) Count IV, possession of paraphernalia as a class A misdemeanor. The State also filed an habitual offender enhancement.

On October 22, 2007, the first day of the jury trial, the State filed a motion in limine to exclude any reference to a previous trial of Sobolewski under a different cause number, and the trial court granted the motion. The trial court granted the State's motion to dismiss Counts II, III, and IV with prejudice.

The next day, S.H. testified that Sobolewski had two tattoos, one on his chest and another on his leg. The prosecutor displayed some of the pictures found on S.H.'s digital camera, and S.H. testified that they had been taken over several days while Sobolewski was staying in her bedroom.³ When S.H. was shown the picture of herself performing fellatio on a male, she testified that the picture had been taken in her room on the night Sobolewski was arrested, that she was performing fellatio on Sobolewski in the picture, and that Sobolewski had taken the picture himself.

On direct examination, Sobolewski denied that he was the male in that picture and further denied having ever used S.H.'s camera. Sobolewski stated that he had five tattoos, including a tattoo on his penis of an `X', which, he asserted, had been given to him one and one-half years earlier by a former girlfriend using a sewing needle and "Indian ink." Id. at 281. He claimed that the penis in the photograph could not be his because it did not bear a tattoo of an `X.'.

At one point, Sobolewski testified in narrative form about his previous criminal convictions and complained that he had "lost everything" and been "slandered in the paper" since his incarceration. Id. at 293. When he mentioned his "last trial," the prosecutor objected that this testimony violated the trial court's order excluding any reference to an earlier trial of Sobolewski under a different cause number, addressing the trial court as follows:

Look, I've tried to give [Sobolewski's attorney] all the leeway in the world. Alright. I have tried for two ... days. He has done nothing but ask clearly objectionable questions, trying to harass witnesses, make objections without knowing the rules, be totally amateurish and then he puts his client up to violate the Court's order. Id. at 294-295. The trial court sustained the objection and, after a sidebar conference off the record, admonished the jury. The jury then left the courtroom, and Sobolewski's attorney moved for a mistrial "on the basis that the State ... challenged the abilities of defense counsel." Id. at 296. The trial court denied the motion but instructed the parties to "refrain from making any direct comments as to other counsel." Id. When the jury returned, the trial court admonished the jury that it was to disregard any statement made by Sobolewski about a prior jury trial. The parties agreed to have pictures taken of Sobolewski's `X' tattoo.

On the third day of the trial, three pictures of Sobolewski's penis with the `X' tattoo were admitted into evidence. On cross examination, the prosecutor asked Sobolewski whether he had told the police about the tattoo during the seven months between his arrest and trial, and Sobolewski responded that he had not. The prosecutor asked, "[Y]ou're saying for seven [] months, you could have proved your innocence but you decided to wait till now?" Id. at 346. Sobolewski agreed. The prosecutor moved to admit into evidence Sobolewski's pretrial proof of compliance with discovery order stating that he did not intend to present any defenses at the time of trial. Sobolewski objected, arguing that the document was hearsay, unfairly prejudicial, and that admission of the document would violate his constitutional "protection to ... refuse to take the stand if he wants to do so." Id. at 329. Overruling Sobolewski's objection, the trial court admitted the document.

When asked whether he knew he had a defense when he submitted the proof of compliance, Sobolewski claimed that, even though he "knew that [he] had a defense to whether or not the penis in th[e] picture was [his]," he "didn't know that until [he] got the picture" the week before the trial. Id. at 332. The prosecutor then asked the trial court to take judicial notice of the fact that, on April 2, 2007, Sobolewski "was arraigned ... and [the charge against him] was read to him from the bench." Id. at 332. Sobolewski then agreed that he was "told that at issue was a photograph that [the State was] claiming [Sobolewski] had made of [S.H.] giving a male subject oral sex." Id. at 333.

The State then called Pike County Jail Commander Ronnie J. Collins to the stand, and Collins testified that he had found a pencil with a needle attached to it and a piece of paper with ink inside of it in Sobolewski's jail cell that morning. Collins testified that the device, or "tattoo pick," "was consistent with other tattooing devices" he had seen. Id. at 404, 430. The tattoo pick was admitted into evidence. Collins further testified that, although the jail makes a record of scars, marks, and tattoos, the Pike County Jail records of Sobolewski's tattoos did not indicate that he had one on his penis when he was booked into the jail. Sobolewski moved for a continuance to test the tattoo pick for DNA, but the trial court denied the motion.

The State then called William C. Jackson, one of Sobolewski's cellmates, to the stand. Sobolewski objected because the witness was undisclosed and asked for a continuance to depose Jackson, but the trial court overruled the objection. After viewing a picture of the tattoo pick found in Sobolewski's cell, Jackson testified that he had used it to help Sobolewski finish a tattoo of an `X' on Sobolewski's penis ten or eleven days before the trial.

During closing arguments, the prosecutor noted Sobolewski's failure to mention the `X' tattoo during his seven months in jail awaiting trial, to which Sobolewski made no objection. The jury found Sobolewski guilty of child exploitation as a class C felony and also found him to be an habitual offender. At sentencing, the trial court found the following aggravating factors: (1) Sobolewski's lengthy criminal history; (2) the fact that he was on probation when he committed the offense; and (3) the fact that prior probations and suspended sentences had been unsuccessful. The trial court found the undue hardship of Sobolewski's incarceration on his child as a mitigating factor. Finding that the aggravators outweighed the mitigators, the trial court sentenced Sobolewski to eight years for the child exploitation conviction enhanced by twelve years for his status as an habitual offender. Thus, Sobolewski received a total sentence of twenty years in the Indiana Department of Correction.

I.

The first issue is whether the trial court abused its discretion by denying Sobolewski's requests for a continuance. Indiana Code § 35-36-7-1 provides for a continuance upon a proper showing by affidavit of an absence of evidence or the illness or absence of the defendant or a witness. See Maxey v. State, 730 N.E.2d 158, 160 (Ind.2000). Rulings on a non-statutory motion for continuance, such as Sobolewski's, lie within the discretion of the trial court and will be...