Opinion
23A-CR-1759
06-21-2024
Jason M. Campbell, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Nancy A. McCaslin McCaslin &McCaslin Elkhart, Indiana ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Elkhart Superior Court The Honorable Teresa L. Cataldo, Judge Trial Court Cause No. 20D03-2006-FA-2
ATTORNEY FOR APPELLANT Nancy A. McCaslin McCaslin &McCaslin Elkhart, Indiana
ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Weissmann, Judge.
[¶1] A jury found Jason Campbell guilty of child molesting, rape, and sexual misconduct with a minor. He appeals, alleging a litany of errors, including wrongly admitted evidence at his trial, insufficient evidence to convict him, improper statements made by the prosecutor during closing arguments, and errors with his 56-year sentence. We affirm but remand to correct a sentencing mistake.
Facts
[¶2] In 2003, Campbell's then-wife, Kathy Williams, began caring for her niece's baby (hereinafter, referred to as Victim). Williams later became Victim's guardian, and in time, Victim came to think of Williams and Campbell as "Mom" and "Dad." Tr. Vol. III, pp. 62-66.
[¶3] Campbell began molesting Victim when she was around eight or nine years old. One night, while Williams was at work, Campbell became angry with Victim for not washing some dishes. As "punishment," Campbell made Victim lay on her bed, pull off her pants, and then he touched and penetrated her vagina with his fingers before ejaculating on the bedsheets. Tr. Vol. IV, p. 60.
[¶4] Similar incidents occurred over the following five or six years. Once, Campbell entered Victim's bedroom by pushing the door open hard enough to knock it off its hinges. Campbell then pulled Victim down onto the bed, pulled down both of their pants, and put his penis inside her vagina. Id. at 65-66. Victim cried for Campbell to stop, saying that she was in pain, but Campbell continued. This happened several more times, although Victim could not remember the exact number. Victim told no one about the molestation because she was "terrified" of Campbell, who threatened that if she revealed the molestations, it would be "worse the next time." Id. at 51, 61-62.
[¶5] The last instance occurred when Victim was in eighth grade. Campbell was angry with Victim because he thought that she had told a friend about the molestation. In apparent retaliation, Campbell had "very aggressive" sexual intercourse with Victim before she left for school. Id. at 73-75. During school, the pain in Victim's genitalia became so great that she went to the school nurse. Victim also took a photograph of her swollen genitalia, which she texted to Williams.
[¶6] The school nurse called Williams, who picked up Victim and took her straight to the emergency room. There, Victim received a gynecological examination, which led a nurse to believe that Victim's injuries stemmed from an allergic reaction. Victim did not reveal the source of her injuries. Although Victim's physical injuries faded, she began to have significant mental health problems. Victim attempted to commit suicide and committed self-harm.
[¶7] In the summer of 2019, Victim went to live with her aunt, Jessica. While there, Victim disclosed the molestation for the first time by confiding in her then-boyfriend. This information eventually reached Williams, who was in disbelief. Without revealing the answer, Williams asked Victim if Campbell had any identifying marks on his genitalia. Victim revealed that she knew about marks under Campbell's testicles that became "very visible" when he had an erection. Tr. Vol. III, pp. 74-77.
[¶8] The State charged Campbell with Class A felony child molesting, Level 3 felony rape, Level 4 felony sexual misconduct with a minor, and Class C felony child molesting. After a jury trial, Campbell was found guilty on all counts.
[¶9] At sentencing, Campbell, the State, and trial court all agreed that Campbell's convictions for rape and sexual misconduct with a minor "merged." Tr. Vol. V, pp. 6-7. The court therefore did not sentence Campbell for sexual misconduct with a minor. For his other convictions, the court issued consecutive sentences as follows: 40 years for Class A felony child molesting; 10 years for Level 3 felony rape, with 4 years suspended; and 6 years for Class C felony child molesting, all suspended. Altogether, Campbell's aggregate sentence amounted to 56 years imprisonment, with 10 years suspended.
We note that, on appeal, the State disclaims this result, but believes itself bound by the position taken before the trial court. See Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005) (applying the invited error doctrine to the State's attempt at reversing its position on appeal about merging the defendant's convictions).
Discussion and Decision
[¶10] Campbell makes four types of claims. First, he asserts that the trial court erred by admitting two exhibits at his trial: pictures from Facebook showing Campbell burning Victim's bedroom furniture and the photograph Victim sent to Williams showing her swollen genitalia. Second, Campbell contends that the State failed to prove his guilt beyond a reasonable doubt. Third, Campbell alleges that the State made improper and prejudicial comments during its closing argument. Lastly, Campbell generally attacks his sentence by arguing that the trial court abused its discretion and by seeking revision under Indiana Appellate Rule 7(B).
[¶11] In short, we reject these arguments but remand to correct an error in Campbell's sentence.
I. Evidentiary Issues
[¶12] Generally, we review the trial court's ruling on the admission of evidence for an abuse of discretion. Cook v. State, 220 N.E.3d 72, 74 (Ind.Ct.App. 2023). For the trial court's decision to be an abuse of discretion, "it must be clearly against the logic and effect of the facts and circumstances." Id.
A. Exhibit 7 (Facebook Picture)
[¶13] Campbell objected to Exhibit 7 as lacking a proper foundation and for being irrelevant. State's Exhibit 7 contained photographs of a bonfire that Campbell posted on his Facebook page around Christmas 2019 with the caption "Best Christmas present ever burning 2019 moving in into 2020 on a new note loving life." Exhs. Vol. VI, p. 10. The picture was taken in the backyard of the house Campbell had lived in with Williams and Victim. The items burning in the bonfire included the bed and nightstand that had been in Victim's bedroom.
Foundation
[¶14] To lay a foundation for the admission of evidence, the proponent of the evidence must show that it is authenticated. Hape v. State, 903 N.E.2d 977, 989 (Ind.Ct.App. 2009). For proper authentication, the proponent must produce "sufficient evidence to support a finding that the item is what the proponent claims it is." Ind. Evidence Rule 901(a). Absolute proof of authenticity is not required; an item is admissible if the evidence establishes a "reasonable probability that the document is what it is claimed to be." Rogers v. State, 130 N.E.3d 626, 629 (Ind.Ct.App. 2019). Relevant here, a party may authenticate evidence through "[t]estimony that an item is what it is claimed to be, by a witness with knowledge." Evid. R. 901(b)(1).
[¶15] Exhibit 7 was sufficiently authenticated to be admissible. The testimony of Victim and Williams-both witnesses with personal knowledge-established that the picture was a screenshot from Campbell's Facebook page. Both explained that the image showed Victim's furniture being burned in a bonfire a few months after she had disclosed Campbell's sexual abuse. Williams, who had been married to Campbell for about 20 years, was familiar with his Facebook page and had the ability to access it. Williams also recognized the location as the backyard of the house where they had lived together.
[¶16] And both Williams and Victim testified from personal knowledge as to the identity of the objects seen in the bonfire. Indeed, Williams was one "hundred percent" certain that the nightstand was the one that had been in Victim's bedroom. Tr. Vol. III, pp. 85. Although Williams was less certain about the bed's identity, Victim testified both the bed and the nightstand had been in her bedroom. Thus, even if Williams's inability to definitively identify the bed had created an insufficient foundation, it was cured through Victim's testimony.
Relevancy
[¶17] Exhibit 7 was also relevant. Evidence is relevant if it has "any tendency" to make a fact of consequence "more or less probable than it would be without the evidence." Ind. Evidence Rule 401. This is a "liberal standard" that "sets a low bar" for establishing relevancy. Snow v. State, 77 N.E.3d 173, 177 (Ind. 2017). Indeed, trial courts possess "wide discretion" in deciding whether this low bar is cleared Id.
[¶18] A picture showing Campbell burning furniture from Victim's bedroom was relevant evidence. Victim testified that several of Campbell's acts of molestation and rape occurred in her bedroom, on the bed. It is well-settled that the act of destroying evidence may demonstrate "consciousness of guilt." Banks v. State, 276 N.E.2d 155, 159 (Ind. 1971). Thus, the jury could reasonably infer, among other permissible inferences, that Campbell destroyed the bed because he knew it was the scene of his crimes. The act of destroying the crime scene displayed consciousness of guilt and consequently cleared the low bar for relevance. See Whitham v. State, 49 N.E.3d 162, 168 (Ind.Ct.App. 2015) (finding evidence relevant that "tended to show [the defendant's] consciousness of guilt").
B. Exhibit 8 (Genitalia Photograph)
[¶19] The State also introduced Exhibit 8, a photograph of Victim's swollen genitalia taken on the day she went to the hospital in March 2018. To explain the photo, the State presented testimony from Nancy Grant, a Sexual Assault Nurse Examiner. Nurse Examiner Grant testified that there were three possible causes for swelling of the nature depicted in the photograph: trauma, infection, or an allergic reaction. Although she could not conclusively state what caused Victim's swelling by viewing the photograph, she opined that trauma was a more likely explanation than any other. Campbell again objected to Exhibit 8 on the basis of relevance and lack of foundation.
Foundation
[¶20] Campbell contends that Exhibit 8 lacked a proper foundation because the State never proved that the photos related to the alleged crimes. In essence, Campbell tries to hang his hat on Victim's initial reluctance to tell her Mother and the health care workers the cause of her pain. This gambit fails.
[¶21] Contrary to Campbell's assertion, the State showed that the photograph was directly related to Campbell's crimes. On the day that the photo was taken, Victim testified that Campbell raped her. She described the event as "worse than the last time" and that it caused her to scream and yell. Tr. Vol. IV, p. 75. Victim testified she personally took the photograph and texted it to Williams. In turn, Williams testified she personally received Victim's photograph from Victim. Thus, the State provided sufficient evidence to establish a foundation for Exhibit 8.
Relevance
[¶22] For similar reasons, Exhibit 8 was plainly relevant. Again, Campbell asserts that no direct evidence proves that he caused the trauma shown in Exhibit 8, but this argument misses the point. The State used Exhibit 8 to demonstrate the severe pain and trauma Victim suffered. To that end, the State had Victim personally testify as to what caused the trauma and elicited testimony from Nurse Examiner Grant that corroborated Victim's testimony as plausible, if not likely. Exhibit 8 was thus plainly relevant.
II. Sufficiency
[¶23] Moving past these individual evidentiary issues, Campbell contends that the State did not present sufficient evidence to prove his guilt beyond a reasonable doubt. We disagree.
[¶24] When reviewing the sufficiency of the evidence, we consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We affirm unless no reasonable factfinder could find all elements of the crime proven beyond a reasonable doubt. Id. We do not reassess witness credibility or reweigh evidence. Id.
[¶25] Campbell generally asserts that the evidence supporting his convictions is insufficient because there "was no direct evidence presented at [his] trial" and the "circumstantial evidence that was presented conflicted with and was inconsistent with [Victim's] testimony." Appellant's Br., p. 45. In making his case, Campbell offers a smorgasbord of various pieces of evidence and claims that each piece was deficient in some way.
[¶26] But as the State aptly points out, Campbell's argument here misunderstands direct evidence. Direct evidence is "evidence that is based on personal knowledge or observation and that, if true, proves a fact without presumption or inference." Hawkins v. State, 100 N.E.3d 313, 317 (Ind.Ct.App. 2018) (quoting Black's Law Dictionary 675 (10th ed. 2014)). By contrast, circumstantial evidence is evidence "based on inference and not on personal knowledge or observation." Id.
[¶27] Victim's testimony was direct evidence. She testified in detail about Campbell's crimes from her vantage as his victim. Her testimony that-at multiple moments-Campbell touched her inappropriately in a sexual manner, and forcefully raped her, established Campbell's crimes. Ind. Code § 35-42-4-3(a)(1) (sexual conduct with a child under the age of 14 years old); Ind. Code § 35-42-4-3(a)(1) (rape); Ind. Code § 35-42-4-3(b) (child molestation).
[¶28] Campbell's effort at attacking Victim's credibility in his briefs are unavailing. First, it is a bedrock principle of sufficiency review that we do not reweigh the evidence or reassess witness credibility. Drane, 867 N.E.2d at 146. For instance, Campbell points out that Williams and Victim disagreed on whether Campbell had ever kicked Victim's bedroom door hard enough to break the door's hinges. Setting aside the relevance of whether the hinges broke, the fact of the matter is that nothing prevented the jury from crediting Victim's testimony. As the State notes, if Campbell wished to attack Victim's testimony on appeal as the central witness to his crimes, he was free to invoke the "incredible dubiosity" rule, which allows reviewing courts to re-assess testimony that "no reasonable person could believe." Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001). In the absence of this argument, we find no basis for rejecting Victim's testimony, which wholly proves Campbell's guilt.
We note that even if Campbell had challenged Victim's testimony under the incredible dubiosity rule, his argument would still fail. In brief, the incredible dubiosity rule is "limited to cases where a sole witness presents inherently contradictory testimony which is equivocal or the result of coercion and there is a complete lack of circumstantial evidence of the defendant's guilt." Majors v. State, 748 N.E.2d 365, 367 (Ind. 2001). Plenty of circumstantial evidence exists here. As just one example, Victim accurately described distinguishing marks on Campbell's genitalia.
III. Closing Arguments
[¶29] Campbell next challenges the following statement from the State's closing argument, made in reference to the photo of Victim's genitalia:
Prosecutor: . . . ladies and gentlemen, I hate to be crass, and I don't really want this shown on camera, but this is not normal, this is not what a normal child looks like. I submit to you this is not an allergic reaction either. In fact, don't support that. They don't support that at all. Campbell's attorney didn't even identify the anatomy properly. She said it was the labia majora that was swollen, that's not what it is. Our witness identified the anatomy here for you after she explained what's in the diagram of what the anatomy looks like. This is not normal, and this is a trauma -this is caused by trauma.
Campbell: Judge, can we approach?
The Court: Yes, you may.
Campbell: I move to have that last remark stricken. The Prosecutor is testifying. I understand it's closing, and I understand it's argument, but her own witness indicated that she cannot conclusively say what caused, what was depicted in the picture, I don't remember the exact exhibit. She said that it could be an allergic reaction, or it could be a reaction that resulted from penetration. She never conclusively said this is trauma and, so, for the Prosecutor to assert that this is trauma, this is not an allergic reaction, that is not based on any of the evidence that's been presented to this jury.
Prosecutor: It's my argument, I could argue that it was trauma, the witness said-said it could be trauma.
Campbell: There has to be the actual support for whatever an attorney is arguing, and her own witness is saying that it could be, she cannot conclusively state that as an absolute.
***
The Court: I'm going to allow it because it is argument, and the jury will be instructed that you take or reject an argumentative statement. So, I'm going to overrule that objection.Tr. Vol. IV, pp. 205-07 (cleaned up).
[¶30] Determining the proper scope of closing argument is within the trial court's sound discretion. Thevenot v. State, 121 N.E.3d 679, 687 (Ind.Ct.App. 2019). The trial court abuses its discretion only if its decision was "clearly against the logic and effect of the facts and circumstances before it." Id. And beyond showing that the trial court erred, Campbell must also prove the error prejudiced him. Id.
[¶31] "In closing argument, a 'prosecutor may argue both law and facts and propound conclusions based upon his or her analysis of the evidence.'" Id. (quoting Lambert v. State, 743 N.E.2d 719, 734 (Ind. 2001)). In other words, "[a]rgument to the jury that seeks to explain the evidence and urges reasonable inferences is not improper." Davis v. State, 658 N.E.2d 896, 898 (Ind. 1995). That is what happened here.
[¶32] The prosecutor's assertion that Victim's genital swelling in March 2018 was caused by trauma was supported by evidence or reasonable inferences from the evidence. First, we do not view the prosecutor as misrepresenting the evidence. The prosecutor did not state that the evidence definitively showed trauma. Instead, she presented her own conclusion about the cause of the swelling. The crux of the challenged statement boiled down to the prosecutor stating, "I submit to you this is not [a photo of] an allergic reaction." Tr. Vol. IV, p. 206 (emphasis added).
[¶33] That Victim's injury had characteristics more consistent with trauma than an allergic reaction was evidence already before the jury. As Nurse Examiner Grant explained: "So, once again I don't know what caused [the injury,] but if it was going to be something that caused [swelling to the internal structures of Victim's genitalia,] it would probably be something that was inserted, or hit, onto the internal portion of the genitalia." Tr. Vol. III, p. 240. The prosecutor's statement about this evidence was a permissible interpretation of Nurse Examiner Grant's testimony and provided a reasonable interpretation of it to the jury. See generally Davis, 658 N.E.2d at 898 (finding the prosecutor's statements proper because the challenged statements amounted to "explain[ing] the evidence and "urg[ing] reasonable inferences").
[¶34] Because the closing argument was proper, the trial court did not abuse its discretion in refusing to strike the statements.
IV. Sentencing
[¶35] Lastly, Campbell makes three arguments about his sentence. He contends that the trial court abused its discretion in sentencing him by relying on improper aggravators. He also asks us to revise his sentence under Indiana Appellate Rule 7(B). He further requests, with the State's agreement, that we remand to the trial court to vacate his conviction for sexual misconduct with a minor. We address each argument in turn.
A. Abuse of Discretion
[¶36] Because sentencing is a discretionary function of the trial court, we generally review alleged errors for an abuse of that discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007). A trial court abuses its discretion if the decision is "clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom." Id. (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). To facilitate our review, the trial court must detail its rationale in a sentencing statement. Id. A trial court abuses its discretion by omitting from this statement reasons supported by the record and advanced for consideration. Id. at 491.
[¶37] Campbell alleges that the trial court abused its discretion by relying on two improper aggravators: his criminal record and history of illegal drug use. The presentence report showed prior convictions for check deception (2005), driving while suspended (2007), and domestic battery (2010). And in the presentence report, Campbell admitted to drug use affecting his financial situation and personal relationships. Campbell denied any current use of illegal substances.
[¶38] There was nothing improper about the trial court's reliance on these aggravators. Courts regularly consider criminal history and drug use in sentencing. See, e.g., McCray v. State, 823 N.E.2d 740, 744-45 (Ind.Ct.App. 2005) (criminal history); Roney v. State, 872 N.E.2d 192, 199 (Ind.Ct.App. 2007) (drug use). Because of this, Campbell only asserts that "these aggravators were insignificant as they related to the current offense and should not have been considered." Appellant's Br., p. 53. But it is a bedrock principle of sentencing that weight given to an aggravating or mitigating factor is not a basis for appellate review. Anglemyer, 868 N.E.2d at 491. Thus, the trial court did not abuse its discretion in sentencing Campbell.
B. Appropriateness
[¶39] Campbell also asks us to revise his sentence under Indiana Appellate Rule 7(B). Under this rule, we may revise a 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." Ind. Appellate Rule 7(B). Our aim in reviewing sentence appropriateness is to "attempt to leaven the outliers" and "not to achieve a perceived 'correct' sentence." Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014). We therefore defer substantially to the trial court's sentencing decision, which prevails unless "overcome by compelling evidence portraying in a positive light the nature of the offense . . . and the defendant's character." Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[¶40] As a starting point, Campbell was convicted of Class A felony child molesting, Level 3 felony rape, and Class C felony child molesting. The sentencing range for a Class A felony is 20 to 50 years, with an advisory sentence of 30 years. Ind. Code § 35-50-2-4(a). The sentencing range for a Level 3 felony is 3 to 16 years, with an advisory sentence of 9 years. Ind. Code § 35-50-2-5(b). And the sentencing range for a Class C felony is 2 to 8 years, with an advisory sentence of 4 years. Ind. Code § 35-50-2-6(a).
[¶41] Campbell received a sentence of 40 years for his Class A felony conviction, 10 years with 4 years suspended for his Level 3 felony conviction, and 6 years entirely suspended for his Class C felony conviction, resulting in an aggregate sentence of 56 years with 10 years suspended. We note that this was below the maximum sentence of 74 years that Campbell faced.
[¶42] The nature of Campbell's offenses weighs strongly against revision. On multiple occasions, Campbell engaged in sexual intercourse, digital penetration, and fondling of a child. See Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011) (finding the victim's young age a relevant consideration). Further, Campbell had a position of trust and responsibility over Victim, helping raise her and being called "Dad." Tr. Vol. III, pp. 65-66; see Hamilton, 955 N.E.2d at 727 (holding that a "harsher sentence is also more appropriate when the defendant has violated a position of trust").
[¶43] Campbell's only argument here is that "the evidence used to convict him was circumstantial because [he] was charged in 2020 for acts that were reported to have been committed" several years ago. Appellant's Br., p. 52. Aside from being a non-sequitur, this argument is inaccurate. As shown above, the State presented direct evidence to support Campbell's conviction. Supra, ¶ 26.
[¶44] Campbell's character does not warrant revision either. Here, our focus is on the presence of any "substantial virtuous traits or persistent examples of good character." Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Campbell fails to demonstrate this.
[¶45] Campbell points to character references given to the trial court which generally paint him in a positive light. Yet this evidence does not demonstrate that Campbell's sentence is inappropriate. The present offenses, as well as Campbell's prior convictions, reveal Campbell's significant character flaws. "Even a minor criminal record reflects poorly on a defendant's character." Reis v. State, 88 N.E.3d 1099, 1105 (Ind.Ct.App. 2017).
[¶46] We thus do not find Campbell's sentence inappropriate in light of the nature of his offense and his character.
C. Remand
[¶47] Lastly, the parties agree that the trial court inadvertently erred by "merging" Campbell's convictions for rape and sexual misconduct with a minor over substantive due process concerns. Because merging the convictions together does not alone fix the alleged substantive due process concern, we remand for the trial court to vacate Count III. See Owens v. State, 206 N.E.3d 1187, 1190-91 (Ind.Ct.App. 2023) (remanding where the trial court merged without vacating the offending conviction).
Conclusion
[¶48] Finding no errors, we affirm Campbell's convictions. We remand, however, for the trial court to vacate Campbell's conviction for sexual misconduct with a minor.
Mathias, J., and Tavitas, J., concur.