Yarbrough v. State
| Docket Number | 23A-CR-2188 |
| Decision Date | 24 April 2024 |
| Parties | James L. Yarbrough, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court Trial Court Cause No 49D32-2009-FA-28896 The Honorable Mark D. Stoner, Judge The Honorable Jane S. Craney, Senior Judge
ATTORNEY FOR APPELLANT Victoria Bailey Casanova Casanova Legal Services, LLC Indianapolis, Indiana
ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
[¶1] Following a bench trial, James Yarbrough was convicted on seven counts of child molesting against several girls. He appeals only his conviction related to an act of sexual intercourse with a 13-year-old victim (Victim 1). During trial, the State used a transcript of Victim 1's prior interview with police to refresh her memory. On appeal, Yarbrough tries to frame this act as improper impeachment, claiming the trial court erred in using it as substantive evidence of his guilt. We reject his arguments and affirm.
[¶2] Between 2006 and 2014, Yarbrough repeatedly molested his girlfriend's five daughters. He engaged in sexual intercourse, performed oral sex on the girls, and directed them to do the same to him. After Yarbrough's actions were reported in 2020, the State charged Yarbrough with five counts of Class A felony child molesting, two counts of Class C felony child molesting, and one count of Class D child solicitation.
[¶3] At trial, Victim 1 testified about Yarbrough's crimes against her. During her testimony, Victim 1 forgot whether Yarbrough actually had sexual intercourse with her, or just attempted to do so. The State then showed the victim a transcript of her interview with a detective two years earlier. After Victim 1 reviewed the relevant portion of the transcript, the State again asked Victim 1 whether Yarbough had "full blown sex" with her, to which Victim 1 replied, "Yes." Tr. Vol. II, p. 153.
[¶4] The trial court found Yarbrough guilty of the child molesting charges but acquitted him of child solicitation. Yarbrough appeals only his child molesting conviction related to Victim 1.
[¶5] Yarbrough argues that sufficient evidence does not support the finding that he had sexual intercourse with Victim 1. He claims the State introduced Victim 1's prior statements as impeachment evidence, which the trial court improperly considered as substantive evidence. If true, and Victim 1's testimony cannot be considered, Yarbrough contends that the State failed to prove the sexual intercourse element of his charged crime beyond a reasonable doubt.
[¶6] As has long been the rule in Indiana, "evidence that was introduced to impeach the credibility of a witness" at trial cannot be considered as substantive evidence of the defendant's guilt. Humphrey v. State, 73 N.E.3d 677, 686 (Ind. 2017) (quoting Webster v. State, 413 N.E.2d 898, 901 (Ind. 1980)). Hoping to find shelter under this rule, Yarbrough attempts to classify the State's proffering of Victim 1's prior statement as impeachment evidence. He is mistaken.
[¶7] The State used the prior statement to refresh Victim 1's memory-not as an impeachment device. Our rules of evidence allow for a "writing or object to refresh the witness's memory." Ind. Evidence Rule 612(a)(1). The basic process requires the witness to "first state that [they do] not recall the information sought," then the questioner may use writings or other methods to refresh the witness's memory. Thompson v. State, 728 N.E.2d 155, 160 (Ind. 2000). A "simple colloquy" establishing the witness's forgotten memory "is all that is required under Rule 612." Id. (quoting 13 Robert Lowell Miller, Jr., Indiana Practice § 612.101, at 225 (2d ed.1995)). The following exchange during Victim 1's testimony reflects exactly that:
Tr. Vol. II, pp. 149-53 (cleaned...
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