James B. Studabaker, II v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Dec 11 2013, 9:29 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KIMBERLY A. JACKSON GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JAMES B. STUDABAKER, II, )
)
Appellant-Defendant, )
)
vs. ) No. 90A04-1303-CR-126
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WELLS CIRCUIT COURT
The Honorable James A. Heimann, Special Judge and Senior Judge
Cause No. 90C01-0907-FB-21
December 11, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
James B. Studabaker, II, appeals his convictions by jury of two counts of sexual
misconduct with a minor as class B felonies and the sentence imposed thereon. He argues
that 1) the trial court erred in admitting evidence; 2) the trial court erred in denying his
motion for a mistrial; 3) there is insufficient evidence to support his convictions; and 4) the
trial court erred in sentencing him.
We affirm.
FACTS AND PROCEDURAL HISTORY
Studabaker and M.E. met in March 2009 when Studabaker was twenty-three years old
and M.E. was fifteen years old. M.E. told Studabaker her age and grade in school. One
week later, M.E. told her mother that she was going to spend the night with a friend. Instead,
Studabaker and a friend picked up M.E. at her house in Huntington and drove her to the
friend’s house in Bluffton. Several people gathered at the home to socialize that evening,
and Studabaker told M.E. that his friends all knew how old she was. Later that night,
Studabaker and M.E. engaged in sexual intercourse in the bathroom and on the living room
floor at his friend’s house and later spent the night at Studabaker’s mother’s house. M.E.
told Studabaker’s mother that she was nineteen years old.
The following month, M.E. again told her mother that she was going to spend the
night with a friend. Instead, another of Studabaker’s friends drove M.E. to Bluffton, where
she and Studabaker engaged in sexual intercourse. M.E. eventually told her mother that she
spent the weekend with twenty-three-year-old Studabaker and had sexual intercourse with
him multiple times. M.E.’s mother contacted the police.
Bluffton Police Department Officer Greg Steele interviewed Studabaker on June 5,
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2009. Studabaker initially denied having sexual contact with M.E. After he failed a
polygraph examination, Studabaker admitted he had engaged in a sexual relationship with
M.E. The State charged him with two counts of sexual misconduct with a minor, both as
class B felonies, and with being an habitual offender based upon his prior convictions for
child molesting and failing to register as a sex offender. Officer Steele also interviewed
M.E., who stated that she engaged in sexual intercourse with Studabaker.
At some point after the charges were filed, Studabaker sent M.E. a letter from jail. In
the letter, which referenced how Studabaker and M.E. met and mentioned M.E.’s mother by
name, Studabaker asked M.E. to say that nothing happened between them even though the
State might “threaten [her] with perjury [and she] might get a year probation.” State’s
Exhibit 1. Studabaker also told M.E. if the two were going to communicate, they “need[ed]
to do it smart [with] [n]o return addresses, no full names.” Id. Studabaker signed the letter
and put the jail address on it.
In December 2010, M.E. testified in a deposition that she told Studabaker that she was
fifteen years old when they met. In addition, she testified that Studabaker told her that all of
his friends knew how old she was.
M.E. and Studabaker resumed their relationship in February 2012 when M.E. was
eighteen years old. They had a child together who was born in November 2012.
Studabaker’s trial began in 2013. At that time, M.E. and Studabaker were no longer
romantically involved, but M.E. admitted that she did not want to see Studabaker go to jail
because he is the father of her daughter and helps her raise the child. At trial, M.E. testified
that she could not remember what happened in 2009 because she was using drugs at the time.
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She further testified that she had no recollection of what she had told Studabaker regarding
her age in March and April 2009. The State and Studabaker agreed that M.E. was
“unavailable” for the purposes of Ind. Evidence Rule 804(a)(3). M.E.’s December 2010
deposition was therefore read to the jury during M.E.’s testimony.
During direct examination of M.E.’s mother during the State’s case-in-chief, the court
admitted into evidence over Studabaker’s objection the letter Studabaker sent to M.E. while
he was in jail. At the conclusion of the State’s evidence, Studabaker testified and admitted
that he had engaged in a sexual relationship with M.E. He further explained, however, that
M.E. had told him she was eighteen years old and he had no reason not to believe her.
Studabaker further admitted that he lied to Officer Steele about his relationship with M.E.
and did not know that it was a defense if he reasonably believed that M.E. was of legal age to
consent.
During cross examination, the following exchange occurred between the deputy
prosecutor and Studabaker:
Prosecutor: Now you claim today that you did not ever know that it’s a
defense that you believed that the person was at least 16 years of age, right?
Studabaker: True.
Prosecutor: And yet in your written statement you stressed that, you talk
quite a bit about the fact you thought she was 18. Why stress all that if you
didn’t think it was a defense?
Studabaker: Again, if I answer that would contaminate the jury and I would
be more than happy to answer that if you ask the jury to leave.
Prosecutor: Judge, I’m not sure how to respond to that.
Court: Ask him to answer the question and see if he is obligated to answer.
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Prosecutor: I’d like you to answer the question . . .
Studabaker: Well it was because I was on probation at the time, parole,
scratch that, parole.
Studabaker’s counsel immediately moved for a mistrial, which the trial court denied.
Specifically, the court explained that the deputy prosecutor did not intentionally elicit
Studabaker’s response. In addition, Studabaker’s counsel admitted that he knew what
Studabaker’s answer would be but did not object or ask for a sidebar. The court offered to
give the jury a curative instruction to disregard the evidence, which Studabaker declined.
The jury convicted Studabaker of both counts of sexual misconduct, and Studabaker
stipulated to his status as an habitual offender. At the sentencing hearing, the court identified
several aggravating factors, including Studabaker’s criminal history, which included five
convictions for class C felony child molesting and two felony convictions for failure to
register as a sex offender as well as repeated probation and parole violations. The victims of
the child molesting convictions were children enrolled in Studabaker’s mother’s daycare.
M.E.’s mother completed a victim’s impact statement, which was included in Studabaker’s
Presentence Investigation Report. According to M.E.’s mother, M.E.’s behavior changed
drastically as a result of these offenses. Specifically, M.E.’s mother explained as follows:
[M.E.] became angry, attitude was that of whatever. She began having sex
with anyone anywhere even those she didn’t know. She refused counseling,
refused to talk to anyone. I believe this incident brought her to the situation
she is in now, juvenile home with further sentencing ahead.
Appellant’s Appendix at 221.
The court sentenced Studabaker to twenty years for each of the two class B felony
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convictions, sentences to run concurrent with each other, and to an additional fixed term of
thirty years for the habitual offender enhancement, for a total sentence of fifty years.
Studabaker appeals his convictions and sentence.
DISCUSSION
I. Admission of Evidence
Studabaker raises two issues regarding the admission of evidence. Specifically, he
contends that the trial court erred in admitting into evidence the letter he sent to M.E. from
prison as well as Officer Steele’s testimony that M.E. told him that she engaged in sexual
intercourse with Studabaker.
Admission of evidence is within the sound discretion of the trial court. Davis v. State,
907 N.E.2d 1043, 1053 (Ind. Ct. App. 2009). We will reverse a trial court’s decision to
admit evidence only if there is an abuse of discretion. Id. An abuse of discretion occurs if
the trial court’s decision is against the logic and effect of the facts and circumstances before
the court. Id.As to the letter, Studabaker argues that it was not properly authenticated. Indiana
Evidence Rule 901 governs authentication or identification of exhibits and provides in
relevant part as follows: “The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.” Evidence demonstrating a reasonable
probability that the exhibit is what it is claimed to be and that its condition is substantially
unchanged as to any material feature is sufficient to establish the condition precedent to
admissibility. Taylor v. State, 943 N.E.2d 414, 418 (Ind. Ct. App. 2011), trans. denied.
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Thomas v. State, 734 N.E.2d 572 (Ind. 2000), is instructive regarding the
authentication of letters. There, Thomas argued that the trial court erred by admitting into
evidence a letter he had written to the trial court accepting responsibility for the murder with
which he had been charged. Thomas argued that the letter lacked authentication. The
Indiana Supreme Court noted that Thomas’s name was on the return address, and the return
address was the Arizona State Prison. Thomas was incarcerated at the Arizona State Prison
at the time the letter was written. Further, in the letter, Thomas demonstrated a knowledge of
witnesses and events related to the crime that were not likely known by anyone in that prison
except Thomas. Based on this evidence, the Indiana Supreme Court concluded that the State
laid an adequate foundation to authenticate the letter. 734 N.E.2d at 574.
Here, as in Thomas, Studabaker’s name and the address of the Wells County jail were
on the letter. Studabaker was incarcerated at the Wells County jail when the letter was
written, and his cellmate’s name was on the return address of the envelope with an Illinois
address. In the letter, Studabaker wrote details and demonstrated a knowledge of the victim
and the crimes that were not likely known by anyone in the jail except Studabaker. The letter
was properly authenticated, and the trial court did not err in admitting it into evidence.
Studabaker also argues that the trial court erred in admitting into evidence Officer
Steele’s testimony that M.E. told him that she engaged in sexual intercourse with Studabaker.
Specifically, Studabaker claims that this evidence is inadmissible hearsay. However, error,
if any, caused by the admission of evidence is harmless error for which we will not reverse a
conviction if the erroneously admitted evidence was cumulative of other evidence properly
admitted. Payne v. State, 854 N.E.2d 7, 17 (Ind. Ct. App. 2006). Here, Officer Steele’s
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testimony that M.E. told him she had engaged in sexual intercourse with Studabaker was
merely cumulative of other testimony. Specifically, M.E.’s mother testified M.E. told her she
had sexual intercourse with Studabaker, M.E. testified that she had sexual intercourse with
Studabaker, and Studabaker even admitted that he had sexual intercourse with M.E. Because
Officer Steele’s testimony was merely cumulative of this other properly admitted evidence,
we find no reversible error. See id.Further, even if the trial court erred in admitting this evidence, we disregard error in
the admission of evidence unless it affects the substantial rights of a party. Simmons v. State,
760 N.E.2d 1154, 1161 (Ind. Ct. App. 2002). An error will be found harmless if its probable
impact on the jury, in light of all of the evidence in the case, is sufficiently minor that it did
not affect the substantial rights of a party. Id. In determining whether error in the admission
of evidence affected the defendant’s substantial rights, this Court must assess the probable
impact of that evidence upon the jury. Craig v. State, 630 N.E.2d 207, 211 (Ind. 1994).
Here, Studabaker admitted he had sexual intercourse with M.E. The sole contested issue at
trial was whether Studabaker reasonably believed that M.E. was at least sixteen years old
when they had sexual intercourse. Therefore, the State is correct that M.E.’s statements to
Officer Steele were not relevant to Studabaker’s mistaken belief defense, and therefore
would not have affected his substantial rights.
II. Mistrial
Studabaker also argues that the trial court erred in denying his motion for a mistrial.
A mistrial is an extreme remedy and should be used only where no other curative measure
will rectify a situation. Shriner v. State, 829 N.E.2d 612, 618 (Ind. Ct. App. 2005). A
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mistrial should be granted where the accused, under all the circumstances, has been placed in
a position of grave peril to which he should not have been subjected. Id. We afford great
deference to a trial court’s decision whether to grant a mistrial because the trial judge is in
the best position to gauge the surrounding circumstances of an event and its impact on the
jury. Id. We therefore review a trial court’s decision whether to grant a mistrial for an abuse
of discretion. Id.Studabaker’s argument fails for two reasons. First, a timely and accurate admonition
is presumed to cure any error in the admission of evidence. Gamble v. State, 831 N.E.2d
178, 184 (Ind. Ct. App. 2005), trans. denied. Here, the trial court offered to give a curative
instruction, but Studabaker refused it. Had Studabaker accepted the instruction, the trial
court would have had the opportunity to admonish the jury and presumably cure any error.
See id. By not accepting the admonishment when he had the opportunity, Studabaker
essentially invited the error. See id. A party may not invite the error, and then later argue
that the error supports reversal because error invited by the complaining party is not
reversible error. Id. Because invited errors are not subject to appellate review, this issue is
waived. See id. (waiving the issue where defense counsel failed to request an
admonishment).
Second, we have previously stated that a defendant who creates his own cause for a
mistrial presents no error. Id. Here, Studabaker’s counsel admitted that he knew Studabaker
would answer that he was on parole but failed to object to the deputy prosecutor’s question or
request a sidebar. Because he created his own cause for mistrial when he failed to object or
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request a sidebar, Studabaker presents no error. We find no error in the trial court denying
Studabaker’s motion for a mistrial.
III. Sufficiency of the Evidence
Studabaker next argues that there is insufficient evidence to support his convictions of
sexual misconduct as class B felonies. Our standard of review when the sufficiency of the
evidence is challenged is well settled. Warren v. State, 701 N.E.2d 902, 906 (Ind. Ct. App.
1998), trans. denied. When reviewing a claim of sufficiency of the evidence, we do not
reweigh the evidence or judge the credibility of witnesses. Id. Rather, we look to the
evidence and reasonable inferences therefrom that support the verdict. Id. We will affirm
the conviction if a reasonable trier of fact could conclude the defendant was guilty beyond a
reasonable doubt. Id.To convict Studabaker of sexual misconduct with M.E., the State had to prove that
Studabaker performed sexual intercourse with M.E. when Studabaker was at least eighteen
years of age, and when M.E. was at least fourteen years of age, but less than sixteen years of
age. See id. It is a defense that the accused person reasonably believed the child was at least
sixteen years at the time of the conduct. Ind. Code § 35-42-4-9(c). Pursuant to this
“mistaken belief” defense, the accused admits all elements of the offense but proves
circumstances that excuse the defendant from culpability. Warren, 845 N.E.2d at 1069.
Here, Studabaker claims that he has proved by a preponderance of the evidence his
reasonable belief that M.E. was at least sixteen years old. Specifically, he points out that he
testified that M.E. told him that she was eighteen years old, and he had no reason to
disbelieve her. He also points out that M.E. appeared to be at least sixteen years old when
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they engaged in sexual intercourse, and that she was allowed to spend the weekend with him,
which suggested she was an adult. M.E., however, testified in her deposition that she told
Studabaker that she was fifteen years old before they engaged in sexual intercourse.
Studabaker’s argument is nothing more than an invitation for us to reweigh the evidence,
which we cannot do. See id. There is sufficient evidence to support Studabaker’s
convictions.
IV. Sentence
Lastly, Studabaker argues that the trial court erred in sentencing him. Specifically, he
argues that his fifty-year aggregate sentence is inappropriate, and that the trial court failed to
specifically assign the habitual offender enhancement to one of his two convictions. We
address each of his contentions in turn.
Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, we find that the sentence is
inappropriate in light of the nature of the offense and the character of the offender. The
burden is on the defendant to persuade the appellate court that his sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Here, our review of the nature of the offense reveals that twenty-three-year-old
Studabaker had a sexual relationship with the victim that he knew was only fifteen years old.
He picked her up at her home on two separate occasions, transported her to another county
where he kept her for the weekend, and engaged in sexual intercourse with her. Studabaker
encouraged M.E. to be dishonest by requesting that she tell his mother she was nineteen years
old so they could stay at her house. Even after the charges were filed, Studabaker continued
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to manipulate M.E. by urging her to commit perjury and risk prosecution herself. Finally,
although M.E. did not suffer physical injuries as a result of the offenses, her behavior
changed dramatically, she became promiscuous, and she refused to talk to anyone.
In addition, we agree with the State that Studabaker’s character is revealed by his
significant criminal history at the young age of twenty-three. At the time he committed these
offenses, he was a seven-time convicted felon with five prior felony convictions for child
molesting and two prior felony convictions for failing to register as a sex offender. The child
molesting convictions relate to Studabaker’s conduct with children in his mother’s day care.
Although he was a juvenile when he committed these offenses, he was waived to adult court
and pleaded guilty to five counts of class C child molesting. While on probation for those
offenses, he was twice-charged with failure of a sex offender to register. He had been
discharged on parole less than a month when he committed the offenses in this case. He also
had a pending theft charge. His former contacts with the law have not caused him to reform
himself. See Jenkins v. State, 909 N.E.2d 1080, 1086 (Ind. Ct. App. 2009), trans. denied.
Under these circumstances and after due consideration of the trial court’s decision and
of the record, we conclude that Studabaker has not sustained the burden of establishing that
his sentence is inappropriate in light of the nature of the offense and his character.
Studabaker also argues that the trial court failed to specifically assign the habitual
offender enhancement to one of his two convictions. In the event of simultaneous multiple
felony convictions and a finding of habitual offender status, trial courts must impose the
resulting penalty enhancement upon only one of the convictions and must specify the
conviction to be so enhanced. Greer v. State, 680 N.E.2d 526, 527 (Ind. 1997). However, in
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Carter v. State, 686 N.E.2d 834, 839 (Ind. 1997), where the Indiana Supreme Court affirmed
both class A felony convictions in the case and the trial court ordered the forty-five year
sentences to run concurrently, the Indiana Supreme Court declined to remand the case to the
trial court for resentencing to apply the thirty-year habitual offender enhancement to only one
of the two class A felony convictions. Here, as in Carter, Studabaker was convicted of two
class B felony convictions, and the trial court ordered the two twenty-year sentences to run
concurrently. We therefore decline to remand the case to the trial court for resentencing to
apply the thirty-year habitual offender enhancement to only one of the two class B felony
convictions. See Carter. The trial court did not err in sentencing Studabaker.
CONCLUSION
For the foregoing reasons, we affirm Studabaker’s convictions and sentence.
Affirmed.
NAJAM, J., and MATHIAS, J., concur.
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