Timothy Samples v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Mar 01 2018, 5:26 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Thomas Lowe Curtis T. Hill, Jr.
Jeffersonville, Indiana Attorney General of Indiana
Justin F. Roebel
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy Samples, March 1, 2018
Appellant-Defendant, Court of Appeals Case No.
10A01-1702-CR-425
v. Appeal from the Clark Circuit
Court
State of Indiana, The Honorable Andrew Adams,
Appellee-Plaintiff Judge
Trial Court Cause No.
10C01-1410-FB-219
Altice, Judge.
Case Summary
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[1] Timothy P. D. Samples appeals following his convictions for two counts of
sexual misconduct with a minor, one as a Class B felony and one as a Level 4
felony.1 Samples raises the following issues on appeal:
1. Did the State commit prosecutorial misconduct rising to the
level of fundamental error?
2. Did the State present sufficient evidence to support Samples’s
convictions?
3. Did the trial court abuse its discretion in calculating credit
time?
[2] We affirm.
Facts & Procedural History
[3] Samples and T.M. have been friends since both men were eighteen years old.
In early 2014, Samples and T.M. worked together, and T.M. often brought
S.M., his then-fourteen-year-old daughter, into the office. In April 2014,
Samples, who was thirty-five years old at the time, began exchanging sexually
explicit Facebook messages with S.M. T.M. discovered the messages and
confronted Samples, telling him, “she’s fucking fourteen.” Transcript at 12. At
the time, Samples appeared remorseful and blamed his actions on his drinking
1
The charges were based on two separate incidents, one occurring shortly before and the other occurring
shortly after the effective date of the statutory amendments replacing the former Class A through D felony
classification system with the current Level 1 through 6 system.
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and drug use. T.M. took away S.M.’s smartphone and deleted her Facebook
account, and believed that the relationship between S.M. and Samples had
come to an end.
[4] To the contrary, Samples continued to pursue a relationship with S.M., albeit
by more secretive means. Around the end of April 2014, Samples contacted
S.M. through a classmate and provided her with a fake Facebook account they
used to communicate. The sexually explicit messaging continued, and shortly
after S.M.’s fifteenth birthday in late June 2014, Samples picked S.M. up near
her home, drove her to a nearby parking lot, and had sexual intercourse with
her in the back of his SUV. Afterwards, Samples dropped S.M. off near her
home and left.
[5] Samples’s next encounter with S.M. occurred on July 20, 2014. Samples again
picked S.M. up and drove her to a different parking lot, and the two engaged in
oral sex and sexual intercourse in the back of Samples’s SUV. A police officer
noticed the SUV and pulled in to investigate because it matched the description
of a stolen vehicle. When the officer pulled up behind the SUV, he saw that it
was rocking side to side. Samples and S.M. were engaged in sexual intercourse
at that point, and when Samples looked up and saw the police car, he said, “I’m
caught.” Id. at 53.
[6] Samples quickly got into the driver’s seat and drove off with the police officer in
pursuit. Samples told S.M. to get dressed and when he got close to her
apartment complex, he told her to get out and run. S.M. did so, and when the
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officer shouted at her to stop, she did not comply. The officer then stopped
Samples’s SUV and ordered him out of the vehicle. Samples claimed that the
girl who had run from the vehicle was a nineteen-year-old named Misty whom
he had met on a dating website, but a resident of the apartment complex
identified her as S.M.
[7] On July 22, 2014, Samples consented to a police interview, in which he
admitted to having oral sex with S.M. on July 20, but denied that sexual
intercourse had occurred on that date. Samples also admitted that he had
engaged in sexual intercourse with S.M. on another occasion. Samples stated
further that S.M. claimed to be sixteen years old, which he believed was the age
of consent.
[8] As a result of these events, the State charged Samples with two counts of sexual
misconduct with a minor. A two-day jury trial commenced on November 16,
2016, at the conclusion of which Samples was found guilty as charged. On
January 26, 2017, Samples was sentenced to concurrent terms of fifteen years
with five years suspended for the Class B felony and twelve years with six years
suspended for the Level 4 felony. Samples now appeals.
1. Prosecutorial Misconduct
[9] Samples first argues that the State committed prosecutorial misconduct by
eliciting testimony concerning Samples’s invocation of his right to counsel and
by making certain comments during closing argument. Conceding that he
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failed to properly preserve this issue, Samples argues that the allegedly improper
conduct resulted in fundamental error.
In reviewing a claim of prosecutorial misconduct properly raised
in the trial court, we determine (1) whether misconduct occurred,
and if so, (2) “whether the misconduct, under all of the
circumstances, placed the defendant in a position of grave peril to
which he or she would not have been subjected” otherwise. . . .
To preserve a claim of prosecutorial misconduct, the defendant
must—at the time the alleged misconduct occurs—request an
admonishment to the jury, and if further relief is desired, move
for a mistrial.
Our standard of review is different where a claim of prosecutorial
misconduct has been procedurally defaulted for failure to
properly raise the claim in the trial court, that is, waived for
failure to preserve the claim of error. The defendant must
establish not only the grounds for prosecutorial misconduct but
must also establish that the prosecutorial misconduct constituted
fundamental error. Fundamental error is an extremely narrow
exception to the waiver rule where the defendant faces the heavy
burden of showing that the alleged errors are so prejudicial to the
defendant’s rights as to “make a fair trial impossible.” In other
words, to establish fundamental error, the defendant must show
that, under the circumstances, the trial judge erred in not sua
sponte raising the issue because alleged errors (a) “constitute
clearly blatant violations of basic and elementary principles of
due process” and (b) “present an undeniable and substantial
potential for harm.” . . . Fundamental error is meant to permit
appellate courts a means to correct the most egregious and
blatant trial errors that otherwise would have been procedurally
barred, not to provide a second bite at the apple for defense
counsel who ignorantly, carelessly, or strategically fail to preserve
an error.
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Ryan v. State, 9 N.E.3d 663, 667-69 (Ind. 2014) (citations, footnotes, and
emphasis omitted).
[10] Samples first argues that the State committed prosecutorial misconduct when it
elicited testimony from the investigating detective that Samples invoked his
right to counsel during his police interview. It is well settled that the use of a
defendant’s assertion of his right to remain silent and/or his right to counsel,
either to impeach or as substantive evidence, violates the Fourteenth
Amendment due process clause. Willsey v. State, 698 N.E.2d 784, 791-92 (Ind.
1998) (citing, inter alia, Doyle v. Ohio, 426 U.S. 610 (1976), and Wainwright v.
Greenfield, 474 U.S. 284 (1986)). This rule does not, however, bar any mention
whatsoever of a defendant’s decision to invoke his rights—the central question
is the particular use to which such evidence is put. Id. at 793. That is, the
prosecution may not use a defendant’s decision to remain silent or seek the
advice of counsel in order to create an inference of guilt. Id. at 792.
[11] In this case, the investigating detective testified that he was unable to complete
his interview of Samples because Samples invoked his right to counsel. But
nothing in the record suggests that the State intentionally elicited this
testimony. More importantly, the State did not comment on or otherwise “use”
the testimony for any reason, let alone to create an inference of guilt or lack of
credibility.2 To the contrary, it was Samples himself who made use of the
2
We also note that the jury was instructed that it was not to consider Samples’s decision to remain silent in
any way in determining his guilt or innocence.
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testimony: he emphasized that he invoked his right to counsel after the
detective said that S.M. was only fifteen, hoping that the jury would infer that
up to that point he believed that she was sixteen, that his sexual contact with
her was therefore legal, and that he had no need for a lawyer. Transcript at 170-
76, 216-17. Accordingly, the State did not commit misconduct in relation to
the detective’s testimony that Samples invoked his right to counsel.
[12] Samples next argues that the State committed misconduct in closing argument
by once referring to a statement Samples made during his police interview as
testimony. It is apparent to us that the prosecutor merely misspoke, and
Samples makes no attempt to explain how this one passing misstatement could
have harmed him, particularly given that the jury was well aware that Samples
had not testified. The prosecutor’s statement did not place Samples in grave
peril, and it certainly did not rise to the level of fundamental error.
[13] Finally, Samples takes issue with the prosecutor’s statements in closing
argument that the onus was on Samples to know S.M.’s age. Samples argues
that this was a misstatement of the applicable law, and in support, he directs
our attention to Ind. Code § 35-42-4-9(c), which provides that “[i]t is a defense
that the accused person reasonably believed that the child was at least sixteen
(16) years of age at the time of the conduct.”
[14] As this court has explained, knowledge of the victim’s age is not an element of
the crime of sexual misconduct with a minor. Wilson v. State, 4 N.E.3d 670, 676
(Ind. Ct. App. 2014), trans. denied. Rather, it is an affirmative defense that that
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a defendant reasonably believed that the victim was at least sixteen years old.
Id. at 677. Accordingly, the defendant bears the initial burden of establishing
his reasonably mistaken belief as to the victim’s age by a preponderance of the
evidence. Id. at 676-77. Once the defendant has sufficiently raised such a
defense, the prosecution bears the ultimate burden of negating it beyond a
reasonable doubt. Id. at 676.
[15] In closing argument, the State discussed the affirmative defense set forth in I.C.
§ 35-42-4-9(c) and accurately stated that Samples bore the burden of establishing
his reasonable belief that S.M. was sixteen or older by a preponderance of the
evidence. It was in discussing this affirmative defense that the State asserted
that the onus was on Samples to know S.M.’s age. When viewed in this
context, we believe the prosecutor’s statements in this regard were a fair
statement of the law. Moreover, to the extent that these statements might be
viewed as an imprecise statement of the law, we note that the jury received
clear instructions on the affirmative defense set forth in I.C. § 35-42-4-9(c).
Under these circumstances, we cannot conclude that the prosecutor’s
statements placed Samples in grave peril, and they certainly did not rise to the
level of fundamental error.
2. Sufficiency of the Evidence
[16] Samples next argues that the State presented insufficient evidence to support his
convictions. In reviewing a challenge to the sufficiency of the evidence, we
neither reweigh the evidence nor judge the credibility of witnesses. Atteberry v.
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State, 911 N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead, we consider only the
evidence supporting the conviction and the reasonable inferences flowing
therefrom. Id. If there is substantial evidence of probative value from which a
reasonable trier of fact could have drawn the conclusion that the defendant was
guilty of the crime charged beyond a reasonable doubt, the judgment will not be
disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008). It
is not necessary that the evidence overcome every reasonable hypothesis of
innocence; rather, the evidence is sufficient if an inference may reasonably be
drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144, 147
(Ind. 2007). Further, the uncorroborated testimony of a single witness is
sufficient to support a conviction, even where the witness in question is the
victim. Ferrell v. State, 565 N.E.2d 1070, 1072-73 (Ind. 1991).
[17] In order to convict Samples of sexual misconduct with a minor as a Class
B/Level 4 felony, the State was required to prove that Samples, while over the
age of twenty-one, engaged in sexual intercourse or other sexual conduct with
S.M., a child at least fourteen years of age but less than sixteen years of age. See
I.C. § 35-42-4-9. Samples does not dispute that he engaged in sexual
intercourse and other sexual conduct with S.M. while she was fifteen years old,
and he concedes that he was well past the age of twenty-one when he did so.
Instead, he invokes the affirmative defense that he reasonably believed that
S.M. was at least sixteen years of age at the time of the conduct. See I.C. § 35-
42-4-9(c). In making this argument, Samples asks us to disregard the testimony
of S.M. and T.M. as incredibly dubious.
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[18] The doctrine of incredible dubiosity allows a reviewing court to reevaluate the
credibility of a witness when “a sole witness presents inherently improbable
testimony and there is a complete lack of circumstantial evidence.” Fajardo v.
State, 859 N.E.2d 1201, 1208 (Ind. 2007). “Application of this rule is rare and
the standard to be applied is whether the testimony is so incredibly dubious or
inherently improbable that no reasonable person could believe it.” Id. The rule
does not apply when testimony is corroborated by additional witnesses or
circumstantial evidence. Thompson v. State, 765 N.E.2d 1273, 1274 (Ind. 2002).
[19] The incredible dubiosity rule has no application here. S.M. testified that she
and Samples talked about her age “over and over” because they were afraid of
being caught and knew that Samples would go to jail if that happened.
Transcript at 40, 49. Moreover, when T.M. confronted Samples about the
sexually explicit messages he discovered in April 2014, just a few months before
the offenses in this case took place, he told Samples, “she’s fucking fourteen.”
Id. at 12. S.M. corroborated her father’s testimony in this regard. Further,
Samples had known T.M. for many years and they worked together at the time
of the offenses. S.M. had accompanied her father to work on multiple
occasions. Moreover, Samples went so far as to create fake Facebook profiles
to allow him to pursue a relationship with S.M. in secret, and he lied about
S.M.’s name and age to the officer who stopped him after the July 20, 2014
offense. In short, neither S.M. nor T.M. was a sole witness, there is nothing
inherently improbable or incredibly dubious about their testimony, and their
testimony is not uncorroborated. Samples’s incredible dubiosity argument is a
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thinly veiled request to reweigh the evidence and judge the credibility of
witnesses, which we will not indulge.
3. Credit Time
[20] Finally, Samples argues that the trial court erred in calculating the amount of
credit time to which he was entitled for time spent on community corrections
day reporting and work release prior to trial. Presentence jail time credit is a
matter of statutory right rather than judicial discretion. Weaver v. State, 725
N.E.2d 945, 948 (Ind. Ct. App. 2000). “Matters of statutory interpretation,
which inherently present a pure question of law, are reviewed de novo.” Shepard
v. State, 84 N.E.3d 1171, 1172 (Ind. 2017).
[21] Samples claims, without citation to the record, that he is entitled to credit for
703 days served on community corrections day reporting and work release, as
well as one additional day served in jail. Because Samples has provided no
evidentiary support for this assertion, it is waived. See Legacy Healthcare, Inc. v.
Barnes & Thornburg, 837 N.E.2d 619, 639 n. 29 (Ind. Ct. App. 2005) (declining
to “scour the record in search of evidence in support of [a litigant’s] claims”),
trans. denied; Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct. App. 2005)
(explaining that “[a] party waives an issue where the party fails to develop a
cogent argument or provide adequate citation to authority and portions of the
record”), trans. denied.
[22] Waiver notwithstanding, we note that during the sentencing hearing, the State
and defense counsel seemed to be in agreement that Samples was entitled to
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more credit time than the amount reflected in the Pre-Sentence Investigation
Report (PSI). Neither side, however, provided the trial court with an alternate
calculation. Accordingly, the trial court explained that defense counsel could
“submit for additional days for that period that was not outlined in the [PSI].”
Transcript at 243. Samples has not yet filed a motion for additional credit time,
but he remains free to do so. Remand is not necessary because the trial court
must address the merits of a motion for jail time credit at any time, so long as
the motion identifies a sufficient factual basis for an award of additional credit
time. Weaver, 725 N.E.2d at 948.
[23] Judgment affirmed.
[24] May, J. and Vaidik, C.J., concur.
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