Roger Salinas v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Dec 28 2018, 8:11 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven E. Ripstra Curtis T. Hill, Jr.
Ripstra Law Office Attorney General of Indiana
Jasper, Indiana
Monika Prekopa Talbot
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Roger Salinas, December 28, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1331
v. Appeal from the Dubois Circuit
Court
State of Indiana, The Honorable Nathan A.
Appellee-Plaintiff. Verkamp, Judge
Trial Court Cause No.
19C01-1607-F1-624
Najam, Judge.
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Statement of the Case
[1] Roger Salinas appeals his convictions following a jury trial for four counts of
rape, one as a Level 1 felony, one as a Level 3 felony, and two as Class B
felonies; two counts of sexual misconduct with a minor, as Class B felonies; five
counts of criminal confinement, one as a Level 3 felony, one as a Level 5
felony, one as a Level 6 felony, and two as Class D felonies; and battery, as a
Class A misdemeanor. Salinas presents three issues for our review:
1. Whether the trial court abused its discretion and violated
his right to cross-examine witnesses when it prohibited
certain questions regarding his minor victim’s prior sexual
history under the Rape Shield Rule.
2. Whether all but three of his convictions violate the
prohibition against double jeopardy.
3. Whether his sentence is inappropriate in light of the nature
of the offenses and his character.
[2] We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[3] Salinas married S.C. in approximately 2001. S.C. had two young children from
a prior relationship, including her daughter, S.M., who was born November 16,
1998. After their marriage, Salinas and S.C. had two sons together. When
S.M. was fifteen years old, Salinas began touching S.M. in inappropriate ways,
including touching her “butt.” Tr. Vol. II at 111. And one day between March
1, 2014, and April 30, 2014, Salinas took S.M. out of school and drove her to
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an apartment in Jasper. There, Salinas started “touching” S.M. and told her
that “he wanted to be with [her].” Id. at 112. Salinas then “touched [S.M.’s]
private area,” told her to take her clothes off, took his clothes off, and told her
to get on the floor. Id. at 113. Salinas got on top of her and “put his fingers”
and then his penis into S.M.’s vagina. Id. He stopped after about fifteen or
twenty minutes. Salinas went to the bathroom, and S.M. began crying. After
S.M. got her clothes back on, Salinas took her back to school. During the same
time period in the spring of 2014, also in the middle of a school day, Salinas
raped S.M. a second time at the same apartment in Jasper.
[4] From October 1, 2014, through June 1, 2016, Salinas repeatedly forced S.M.
into the basement of the family home and raped her. On several occasions,
Salinas threatened S.M. with implements, including a hammer, a knife, and a
bat. And Salinas once hit S.M. in her abdomen with the bat, and he sometimes
hit and kicked S.M., leaving bruises. On June 2, 2016, Salinas threatened S.M.
with a knife, hit her, and forced her to have intercourse.
[5] On June 14, Salinas forcibly “took S.M. out of the state because he wanted
[her] to leave with him.” Id. at 156. S.M. did not resist because Salinas had
previously threatened to hurt her or her family if she did not do what he told
her to do. Salinas started driving S.M. to Washington, but, after arguing with
S.C. on the telephone, he returned S.M. home the next day. Upon their return,
S.C. told Salinas to leave the family home, which he did. Soon thereafter, S.M.
told S.C. about all of the sexual and physical abuse Salinas had inflicted on her
over the years. Accordingly, S.C. contacted the Department of Child Services
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to report the molestations, and, on June 18, S.M. underwent a sexual assault
examination. That examination did not reveal any physical evidence of the
alleged rapes or any sexual activity. But the nurse observed bruises on S.M.’s
arm and leg. In July, S.M. discovered that she was pregnant, and she aborted
the fetus. DNA analysis of the fetus’ remains revealed that Salinas was the
father.
[6] On July 22, the State charged Salinas with fifteen counts, and on February 8,
2018, the State amended the information and charged Salinas as follows: seven
counts of rape, two as Level 1 felonies, two as Class B felonies, and three as
Level 3 felonies (Counts 1-2 and 10-14); two counts of sexual misconduct with
a minor, as Class B felonies (Counts 3-4); five counts of criminal confinement,
one as a Level 3 felony, one as a Level 5 felony, one as a Level 6 felony, and
two as Class D felonies (Counts 5-9); and battery, as a Class A misdemeanor
(Count 15). Prior to trial, the State filed a motion in limine to bar evidence of
S.M.’s prior sexual conduct, which the trial court granted. During trial, the
nurse who had examined S.M. in June 2016 testified, and defense counsel
wanted to question her about one of her notes stating that S.M. had had a
consensual sexual encounter in April 2016. Outside the presence of the jury,
defense counsel questioned the nurse about the note. Defense counsel hoped to
elicit testimony that S.M. had told the nurse that she had had consensual sex
with Salinas, but the nurse stated that she did not have enough information to
answer that question and doubted that the consensual partner was Salinas. The
State objected to the line of questioning, and the court sustained the objection.
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[7] At the conclusion of trial, the jury found Salinas guilty of all charges but three
of the rape charges (Counts 10, 12, and 14). At sentencing, the State informed
the court that the two counts of sexual misconduct with a minor, Counts 3 and
4, should be “merged” with the two rape counts covering the same dates,
Counts 1 and 2. Tr. Vol. IV at 94. Nonetheless, the trial court entered
judgment of conviction as follows: four counts of rape, one as a Level 1 felony,
one as a Level 3 felony, and two as Class B felonies; two counts of sexual
misconduct with a minor, as Class B felonies; five counts of criminal
confinement, one as a Level 3 felony, one as a Level 5 felony, one as a Level 6
felony, and two as Class D felonies; and battery, as a Class A misdemeanor.
And the trial court imposed sentence as follows: ten years each for Counts 1
through 4; one and one-half years each for Counts 5 and 6; nine years for Count
7; three years for Count 8; one year for Count 9; thirty years for Count 11; nine
years for Count 13; and one year for Count 15. The trial court stated that,
“[f]or sentencing purposes, the Court orders Count 3 shall be merged with
Count 1, and Count 4 shall be merged with Count 2.” Appellant’s App. Vol.
III at 25. The trial court ordered some of the sentences to run concurrently and
some to run consecutively for an aggregate term of fifty-two years executed.
This appeal ensued.
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Discussion and Decision
Issue One: Rape Shield Rule
[8] Salinas contends that the trial court abused its discretion when it precluded him
from questioning S.M. about her prior sexual conduct. As the Indiana Supreme
Court has stated:
Generally, a trial court’s ruling on the admission of evidence is
accorded “a great deal of deference” on appeal. Tynes v. State,
650 N.E.2d 685, 687 (Ind. 1995). “Because the trial court is best
able to weigh the evidence and assess witness credibility, we
review its rulings on admissibility for abuse of discretion” and
only reverse “if a ruling is ‘clearly against the logic and effect of
the facts and circumstances and the error affects a party’s
substantial rights.’” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind.
2014) (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind.2013)).
Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015). But a trial court’s interpretation of
a Rule of Evidence or a statute presents an issue of law that we review de novo.
See Tyler v. State, 903 N.E.2d 463, 467 n.4 (Ind. 2009).
[9] Indiana Evidence Rule 412, the Rape Shield Rule, incorporates the basic
principles of Indiana Code Section 35-37-4-4 (2015), Indiana’s Rape Shield Act,
and provides in relevant part as follows:
(a) Prohibited Uses. The following evidence is not admissible in a
civil or criminal proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim or witness
engaged in other sexual behavior; or
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(2) evidence offered to prove a victim’s or witness’s
sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the
following evidence in a criminal case:
(A) evidence of specific instances of a
victim’s or witness’s sexual behavior, if
offered to prove that someone other
than the defendant was the source of
semen, injury, or other physical
evidence;
(B) evidence of specific instances of a
victim’s or witness’s sexual behavior
with respect to the person accused of the
sexual misconduct, if offered by the
defendant to prove consent or if offered
by the prosecutor; and
(C) evidence whose exclusion would
violate the defendant’s constitutional
rights.
[10] On appeal, Salinas appears to suggest that, under Evidence Rule 412(b)(1)(B),
he should have been permitted to question S.M. about her single episode of
consensual sex with an unknown partner in approximately April 2016. Salinas
maintains that S.M.’s “admitted history was relevant to the elements of consent
and confinement” and that he “should have been allowed to question [S.M.]
about her admission.” Appellant’s Br. at 26. However, Salinas did not make
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an offer of proof to show that S.M. would have testified that she had had
consensual sex with Salinas.
[11] An offer of proof allows the trial and appellate courts to determine the
admissibility of the testimony and the potential for prejudice if it is excluded.
Barnett v. State, 916 N.E.2d 280, 287 (Ind. Ct. App. 2009), trans. denied. “‘It is
well settled that an offer of proof is required to preserve an error in the
exclusion of a witness’ testimony.’” Id. (quoting Dowdell v. State, 720 N.E.2d
1146, 1150 (Ind. 1999)). Accordingly, Salinas has waived review of this issue
on appeal. See, e.g., id.
[12] To the extent Salinas contends that he should have been allowed to question
Sharon Livingston, the sexual assault nurse examiner (“SANE”), about S.M.’s
history of consensual sex, he did make an offer of proof. But, in the offer of
proof, Salinas asked Livingston whether S.M. had told her that she had had
consensual sex with Salinas in April 2016. Livingston replied, “I honestly don’t
think that that is what she—I can’t answer that with certainty at all. I really
can’t.” Tr. Vol. III at 13. On redirect examination, Livingston clarified that
she “believe[d]” that S.M. had had consensual sex with someone other than
Salinas in approximately April 2016. Id. at 14. Accordingly, Salinas cannot
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show that the trial court abused its discretion when it excluded this line of
questioning of Livingston at trial.1
[13] Finally, to the extent Salinas contends that exclusion of the evidence of S.M.’s
prior sexual history violated his right to confront witnesses under both the state
and federal constitutions, which is an exception to the Rape Shield Rule under
Evidence Rule 412(b)(1)(C), his contention is, again, without merit. In
particular, Salinas asserts that,
without permitting Salinas to introduce exculpatory evidence—
that S.M. had engaged in consensual sex during the relevant
periods charged in the Information—the only reasonable
inference that the jury could have drawn from the evidence
presented was that Salinas was the perpetrator in every Count
and that S.M.’s accusations were true, because reasonable jurors
would not think it typical that a young teenager was sexually
active, after undergoing the trauma inflicted by her stepfather.
Appellant’s Br. at 33-34. In support of this contention, Salinas cites to this
court’s opinions in Davis v. State, 749 N.E.2d 552 (Ind. Ct. App. 2001), trans.
denied, and Steward v. State, 636 N.E.2d 143 (Ind. Ct. App. 1994), aff’d, 652
N.E.2d 490 (Ind. 1995).
1
We note that Salinas asserts that S.M.’s self-reported incident of consensual sex occurred “within the range
of Counts 7, 8, 11, and 15.” Appellant’s Br. at 31. But the offenses underlying Counts 7, 8, and 11 took
place in June 2016, and the one instance of consensual sex reported by S.M. occurred two months prior to
the June 18, 2016, examination, or in approximately April 2016. Further, the offense underlying Count 15,
which occurred between November 16, 2015, and June 1, 2016, was a battery, and Salinas does not explain
how S.M.’s consensual sexual activity would be relevant to that offense.
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[14] In Steward, we observed that application of the Rape Shield Statute “‘complies
with the dictates of the Confrontation and Due Process Clauses only if it does
not actually impinge upon [the defendant’s right to] cross-examination.’” 636
N.E.2d at 148 (quoting Saylor v. State, 559 N.E.2d 332, 335. (Ind. Ct. App.
1990)). Thus, the trial court’s exclusion of evidence must not prevent the
defendant from conducting a full, adequate, and effective cross-examination.
Id.
[15] But our holdings in Davis and Steward, that the trial courts violated the
defendants’ right to cross-examine witnesses, are inapposite here. In Steward,
we addressed the risk of mistaken identification of a child molester through
“partial corroboration.” 636 N.E.2d at 149 (quoting Saylor, 559 N.E.2d at 334).
“In partial corroboration, once there is evidence that sexual contact did occur,
the witness’s credibility is automatically ‘bolstered.’” Id. (quoting Tague v.
Richards, 3 F.3d 1133, 1138 (7th Cir. 1993)). “This bolstering evidence invites
the inference that because the victim was accurate in stating that sexual contact
occurred, the victim must be accurate in stating that the defendant was the
perpetrator.” Id. Therefore, in such cases, the defendant must be allowed to
rebut this inference by adducing evidence that another person was the
perpetrator. See id.
[16] In Steward,
the State introduced expert testimony that [the victim’s] behavior
was consistent with that of other victims of child sexual abuse
syndrome. More importantly, the State produced evidence that
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[the victim’s] manifestations of child sexual abuse syndrome
improved once she reported that Steward had molested her and
that a victim of child sexual abuse often improves after
identifying the molester.
636 N.E.2d at 149-50. And in Davis,
the State commented on L.P.’s prior sexual activity in its opening
statement. L.P.’s grandmother testified that the doctor informed
her on the night of the examination that L.P. had been sexually
active. During the offer of proof, L.P. admitted having sex with
another individual sometime in 1996. She acknowledged that
this incident occurred before the hospital examination had been
performed. Thus, while L.P. accused Davis of having sex with
her, the jury was precluded from hearing that L.P. was having
sex with others at age twelve. Such exclusion unfairly bolstered
her testimony, inasmuch as the inference arises that, because L.P.
was accurate in stating that sexual contact had occurred, as
disclosed by the physical examination, she also must have been
accurate in stating that Davis was the perpetrator of the charged
offenses.
749 N.E.2d at 555-56.
[17] In contrast, here, Salinas does not direct us to any evidence presented at trial
that “unfairly bolstered” S.M.’s testimony. Id. He does not contend that the
State presented evidence of S.M.’s psychological condition to prove that the
rapes had occurred. And, further, S.M. was seventeen years old when she had
consensual sex with an unknown person in April 2016. Unlike the victim in
Davis, who was sexually active at twelve years old, there is nothing unusual
about a seventeen-year-old being conversant in details about sexual activity.
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Salinas’ bare assertion that S.M.’s testimony was bolstered by partial
corroboration is entirely unsupported and without merit. We hold that the trial
court did not violate Salinas’ right to confront witnesses under either the state
or federal constitution.
Issue Two: Double Jeopardy
[18] Salinas next contends that all but three of his convictions violate his right to be
free from double jeopardy under Indiana law. Article 1, Section 14 of the
Indiana Constitution provides that “[n]o person shall be put in jeopardy twice
for the same offense.” Our Supreme Court has interpreted that clause to
prohibit multiple convictions based on the same “actual evidence used to
convict.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). To determine the
actual evidence used to establish a conviction, we look to the “evidentiary
facts” as they relate to “all” of the elements of both offenses. Spivey v. State, 761
N.E.2d 831, 833 (Ind. 2002). In other words, the actual evidence test requires
“the evidentiary footprint for all the elements required to prove one offense” to
be “the same evidentiary footprint as that required to prove all the elements of
another offense.” Thrash v. State, 88 N.E.3d 198, 208 (Ind. Ct. App. 2017)
(quoting Berg v. State, 45 N.E.3d 506, 510 (Ind. Ct. App. 2015)).
[19] The Indiana Supreme Court has also “long adhered to a series of rules of
statutory construction and common law that are often described as double
jeopardy[] but are not governed by the constitutional test set forth in
Richardson.” Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quotation
marks omitted). One such rule prohibits “[c]onviction and punishment for a
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crime which consists of the very same act as another crime for which the
defendant has been convicted and punished.” Id. In Taylor v. State, we
acknowledged that the “very same act test” is different than the actual evidence
test, and we held that the very same act test applies when the defendant’s
“behavior” underlying one offense is “coextensive with the
behavior . . . necessary to establish an element of” another offense. 101 N.E.3d
865, 972 (Ind. Ct. App. 2018).
[20] We first address Salinas’ two convictions for sexual misconduct with a minor,
as Class B felonies, under Counts 3 and 4. The State concedes that those
convictions are “duplicates” of the rape convictions under Counts 1 and 2, in
that the exact same acts alleged to constitute two instances of sexual
misconduct with a minor were also alleged to constitute two instances of rape.
Appellee’s Br. at 16; see Taylor, 101 N.E.3d 865 at 972. Indeed, in an attempt to
avoid violating double jeopardy principles, the trial court “merged” the
convictions for Counts 3 and 4 with Counts 1 and 2, respectively, “[f]or
sentencing purposes.” Appellant’s App. Vol. II at 25. But it is well settled that,
where, as here, a trial court enters judgment of conviction on a guilty verdict,
“simply merging the offenses is insufficient [to avoid a double jeopardy
violation] and vacation of the offense is required.” Kovats v. State, 982 N.E.2d
409, 415 (Ind. Ct. App. 2013). Accordingly, we reverse and remand with
instructions to vacate Salinas’ convictions under Counts 3 and 4 for sexual
misconduct with a minor.
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[21] Next, Salinas contends that his convictions under Counts 1 and 2 violate double
jeopardy because there is no evidence that he raped S.M. during the applicable
time period other than one time, on April 7, 2014. But Salinas ignores S.M.’s
unequivocal testimony that Salinas raped her on two separate days during the
time period of March 1, 2014, to April 30, 2014. Salinas’ contention is without
merit.
[22] Salinas also suggests that his convictions under Counts 5 and 6, which alleged
criminal confinement of S.M. on two occasions between March 1, 2014, and
April 30, 2014, violate double jeopardy principles. Salinas avers that
“[c]ompelling S.M. to submit ‘by force or imminent threat of force’ [relevant to
his rape convictions for that date range] is the same as Confinement’s
‘nonconsensual substantial interference with [S.M.]’s liberty.’” Appellant’s Br.
at 24. But, as the State correctly points out, “[a]ny confinement of a victim
beyond that inherent in the force used to effectuate [a] rape constitutes a
violation of the confinement statute apart from the violation inherent in the
offense of forcible rape.” Parks v. State, 734 N.E.2d 694, 701 (Ind. Ct. App.
2000), trans. denied. S.M. testified that Salinas took her to the apartment in
Jasper against her will and kept her there against her will. Because the evidence
shows that Salinas confined S.M. beyond that inherent in the force used to rape
her, Salinas cannot show a double jeopardy violation on this ground. See id.
For the same reasons, Salinas’ contention that Counts 7 (criminal confinement)
and 11 (rape) violate double jeopardy is without merit.
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[23] Salinas next contends that his convictions under Counts 11 (rape) and 15
(battery) cannot stand because the battery is a lesser included offense of the
rape. However, as the State correctly points out, the evidence shows that the
rape in Count 11 occurred on June 2, 2016, and the battery in Count 15
occurred between November 16, 2015, and June 1, 2016. There is no double
jeopardy violation.
[24] Finally, Salinas makes a bare contention that his conviction under Count 13
(rape) cannot stand because “[t]here is no evidence in the record supporting a
rape during the charged time period [October 1, 2014, and November 15,
2015].” Appellant’s Br. at 26. Thus, he asserts, without citation to authority,
that “this further subjects [him] to prosecution for other rape allegations that
may fall within this range.” Id. But Salinas ignores S.M.’s testimony that
Salinas penetrated her anus with his penis during the relevant date range.
Salinas’ contention is without merit.
Issue Three: Sentence
[25] Finally, Salinas contends that his sentence is “unreasonable.” Appellant’s Br.
at 34. As the State points out, Salinas sets out the standard of review applicable
to an abuse of discretion in sentencing, but he makes no cogent argument in
support of an abuse of discretion. Rather, Salinas appears to argue that his
sentence is inappropriate under Indiana Appellate Rule 7(B), which provides
that “[t]he Court may revise a sentence authorized by statute 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
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offender.” This court has recently held that “[t]he advisory sentence is the
starting point the legislature has selected as an appropriate sentence for the
crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017).
And the Indiana Supreme Court has recently explained that:
The principal role of appellate review should be to attempt to
leaven the outliers . . . but not achieve a perceived “correct”
result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). Defendant has the burden to persuade us that the
sentence imposed by the trial court is inappropriate. [Anglemyer,
868 N.E.2d at 494].
Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[26] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we
regard a sentence as inappropriate at the end of the day turns on “our sense of
the culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other facts that come to light in a given case.” Id. at 1224.
The question is not whether another sentence is more appropriate, but rather
whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
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[27] With respect to the nature of the offenses, Salinas maintains that, “[t]he
multiple charges, though heinous, do not allege facts in excess of those
necessary to prove the crimes; nor does the evidence contain extraordinary
circumstances beyond the number of charges.” Appellant’s Br. at 41. And with
respect to his character, Salinas emphasizes his lack of a criminal history, his
religious faith, and his history of “be[ing] good to and with his family.” Id. at
39.
[28] We cannot say that Salinas’ aggregate sentence of fifty-two years executed is
inappropriate in light of the nature of the offenses and his character. Salinas, a
father-figure to S.M. since she was a small child, brutally raped and/or beat her
repeatedly over the course of two years, kidnapped her and left the state, and
impregnated her. As for his character, Salinas’ gross abuse of his position of
trust with S.M., without more, supports his sentence. We decline Salinas’
invitation to revise his sentence.
Conclusion
[29] The trial court did not abuse its discretion or violate Salinas’ right to confront
witnesses when it prohibited him from questioning either S.M. or Livingston
regarding S.M.’s prior sexual history. Two of Salinas’ convictions violate the
prohibition against double jeopardy, so we remand with instructions to the trial
court to vacate his convictions on Counts 3 and 4 for sexual misconduct with a
minor. And Salinas’ sentence is not inappropriate in light of the nature of the
offenses or his character.
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[30] Affirmed in part, reversed in part, and remanded with instructions.
Pyle, J., and Altice, J., concur.
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