MEMORANDUM DECISION
Feb 27 2015, 6:51 am
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 establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Paula M. Sauer Gregory F. Zoeller
Danville, Indiana Attorney General of Indiana
Brian Reitz
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph Singleton, February 27, 2015
Appellant-Defendant, Court of Appeals Case No.
32A01-1407-CR-323
v. Appeal from the Hendricks Superior
Court
The Honorable Karen M. Love,
State of Indiana, Judge
Appellee-Plaintiff Cause No. 32D03-1305-FA-6
Bailey, Judge.
Case Summary
[1] Joseph Singleton (“Singleton”) appeals his convictions and thirty-eight-year
aggregate sentence for Child Molesting, as a Class A felony,1 and Attempted
Child Molesting, as a Class C felony.2 We affirm the convictions but revise the
sentence to twenty years.
Issues
[2] Singleton presents three issues for review:
I. Whether he was entitled to a mistrial after a witness testified that Singleton’s
wife was pregnant at the time of the crimes;
II. Whether his sentence is inappropriate; and
III. Whether Singleton was properly prohibited from contact with his infant
son.
Facts and Procedural History
[3] In 2012, thirty-two-year-old Singleton taught algebra at Plainfield Community
Middle School. Thirteen-year-old M.M. was one of Singleton’s students. Prior
to the winter break, Singleton and M.M. began communicating via a
photograph-sharing social networking website. They later agreed to
1
Ind. Code § 35-42-4-3.
2
Ind. Code §§ 35-42-4-3, 35-41-5-1.
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communicate via texting, eventually sending thousands of texts to one another.
M.M. frequently visited Singleton’s classroom at lunch time, using hall passes
that he had written for M.M. and her friends. M.M. would customarily leave
her book bag in the classroom and Singleton would sometimes place snacks in
it. The teacher and student also exchanged gifts.
[4] Singleton coached a math competition team, which M.M. joined. Practices
were held twice-weekly and Singleton sometimes gave M.M. a ride home
afterward. By April of 2013, Singleton and M.M. had professed love for each
other. On April 5, 2013, Singleton kissed M.M. on her lips. The kisses
continued for about three weeks, typically taking place in a darkened
classroom. In late April, after a math competition practice, M.M. called her
step-father to pick her up because she wasn’t feeling well. She laid down on the
classroom floor to wait for her ride, and Singleton laid down on the floor beside
M.M. They kissed, Singleton unzipped M.M.’s pants, and Singleton placed his
finger in M.M.’s vagina.
[5] During the early morning hours of May 1, 2013, M.M.’s mother noticed that
M.M. had received a text message with the word “love” and a heart symbol in
it. (Tr. 549.) She awakened M.M. and demanded an explanation. Eventually,
M.M. provided her password and text messages from Singleton were
discovered. M.M.’s parents contacted police.
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[6] On May 2, 2013, Singleton was charged with Attempted Child Molestation for
having kissed M.M. on her lips. On May 22, 2013, Singleton was charged with
Child Molestation for having digitally penetrated M.M.’s vagina.
[7] On April 22, 2014, a jury convicted Singleton of both counts. On July 1, 2014,
Singleton received a sentence of thirty-eight years imprisonment, with three
years suspended to probation. As a condition of probation, Singleton was
ordered to have no contact with any person under age eighteen. This appeal
ensued.
Discussion and Decision
Mistrial
[8] Prior to trial, defense counsel requested that Singleton’s statement to police be
redacted to omit any reference to his wife’s pregnancy; the request was granted.
Counsel then sought clarification that his motion in limine “on the pregnancy
issue” was granted. (Tr. 383.) The court indicated that the motion in limine
was granted, subject to the defense not “opening the door.” (Tr. 383.) The
prosecutor responded that the State had no intention of making pregnancy an
issue and further stated: “If it comes out it has not been elicited[.]” (Tr. 384.)
[9] M.M. was called as the State’s first witness. After M.M. had testified at length,
and described Singleton’s conduct in detail, the prosecutor asked M.M. “how
did all this come out.” (Tr. 475.) The following exchange then took place:
Prosecutor: when she [your mother] asked you about it what did you tell her?
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M.M.: I said don’t get him in trouble. It’s all my fault.
Prosecutor: Why did you say that?
M.M.: Because he had – his wife was pregnant and I didn’t like for him to get
in trouble because he had a family.
(Tr. 475-76.)
[10] Defense counsel interrupted and the jury was excused. Defense counsel then
requested a mistrial. The prosecutor insisted that the reference to pregnancy
was inadvertent but admitted that she had not advised M.M. to avoid such
reference. The State did not specifically oppose the grant of a mistrial.
However, the trial court opined that evidence of his wife’s pregnancy was not
so detrimental to Singleton as to require a mistrial. With Singleton’s
acquiescence, the trial court instructed the jury: “you are to disregard the
witness’s testimony that Mrs. Singleton may or may not have been pregnant.”
(Tr. 482.) Singleton now argues that the State interjected an evidentiary
harpoon by deliberately eliciting testimony in violation of a motion in limine,
and that he was therefore entitled to a mistrial. According to Singleton, the jury
admonishment was inadequate to preserve his right to a fair trial.
[11] A decision to grant or deny a motion for a mistrial lies within the discretion of
the trial court. Randolph v. State, 755 N.E.2d 572, 575 (Ind. 2001). On appeal,
the trial court’s exercise of discretion is afforded great deference. Mickens v.
State, 742 N.E.2d 927, 929 (Ind. 2001). This is so because the trial judge is in
the best position to gauge the surrounding circumstances of an event and its
impact upon the jury. Id.
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[12] A mistrial is an extreme remedy that is only justified when other remedial
measures are insufficient to rectify the situation. Id. To prevail on appeal from
the denial of a motion for mistrial, the appellant must establish that the
challenged conduct was so prejudicial and inflammatory that he was placed in a
position of grave peril to which he should not have been subjected. Id. The
gravity of the peril is determined by considering the misconduct’s probable
persuasive effect on the jury’s decision, not the impropriety of the conduct. Id.
[13] Here, M.M. was asked why she believed the situation to be her fault. Although
the question concerned M.M.’s state of mind, she replied unresponsively,
instead focusing upon Singleton’s family circumstances. This does not support
a claim that the State deliberately elicited testimony proscribed by an order in
limine.
[14] The trial court instructed the jury to disregard any evidence of a possible
pregnancy. A contemporaneous admonition is presumed to have cured any
error. See Gamble v. State, 831 N.E.2d 178, 184 (Ind. Ct. App. 2005), trans.
denied. We also observe that Singleton did not renew the request for a mistrial
after the admonition. See Washington v. State, 902 N.E.2d 280, 289-90 (Ind. Ct.
App. 2009) (observing that if an admonishment is insufficient to cure the error,
the defendant must request a mistrial), trans. denied. Singleton failed to show
that M.M.’s isolated reference to a pregnancy – after her explicit testimony
relating the details of the crimes – placed Singleton in a position of grave peril
to which he should not have been subjected. The denial of a mistrial did not
constitute an abuse of discretion.
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Sentence
[15] Upon conviction of a Class A felony,3 Singleton was subject to a sentence of
between twenty years and fifty years, with thirty years as the advisory term.
I.C. § 35-50-2-4. Upon conviction of a Class C felony,4 Singleton was subject to
a sentence of between two years and eight years, with four years as the advisory
term. I.C. § 35-50-2-6. Singleton’s thirty-eight-year aggregate sentence is
comprised of a thirty-eight-year sentence for the Class A felony and a
concurrent five-year sentence for the Class C felony. Three years were
suspended to probation. When imposing this sentence, the trial court found
Singleton’s violation of a position of trust and greater than typical harm to the
victim to be aggravators.5 In mitigation, the trial court recognized Singleton’s
lack of criminal history, military service, hardship to his dependents, his
remorse, and the surrender of his teacher’s license.
[16] The authority granted to this Court by Article 7, § 6 of the Indiana Constitution
permitting appellate review and revision of criminal sentences is implemented
through Appellate Rule 7(B), which provides: “The 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
3
The offense is now a Level 1 felony.
4
The offense is now a Level 5 felony.
5
Because of publicity surrounding the case, M.M. received social media messages from other students
blaming her for a teacher’s incarceration.
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of the offense and the character of the offender.” In performing our review, we
assess “the culpability of the defendant, the severity of the crime, the damage
done to others, and myriad other factors that come to light in a given case.”
Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of such
review is to attempt to leaven the outliers. Id. at 1225. A defendant ‘“must
persuade the appellate court that his or her sentence has met th[e]
inappropriateness standard of review.”’ Anglemyer v. State, 868 N.E.2d 482, 494
(Ind. 2007) (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).
[17] As to the nature of Singleton’s offenses, he used his position as a teacher to gain
access to M.M. during and after school hours. He professed love for M.M.,
encouraged her to communicate with him, and persuaded her to join an
academic competition team. Singleton repeatedly kissed M.M. Eventually,
Singleton digitally penetrated M.M.’s vagina. The two made plans to meet and
have intercourse at a later time.
[18] As to Singleton’s character, he had historically been a productive citizen.
Singleton had no criminal history; he had assisted his single mother in rearing
his younger siblings; he had served in the military; he had been honored as a
teacher of the year; he provided financial support for his family. While
incarcerated for these offenses, Singleton provided tutoring to other inmates.
[19] Having reviewed the matter, we conclude that the thirty-eight year sentence is
an outlier. It is in excess of that sought by the State and that recommended by
the probation department. M.M.’s step-father was permitted to testify at some
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length that his family had suffered because Singleton had withdrawn from a
plea bargain. Thus, it appears that Singleton may have been penalized for
exercising his Constitutional right to a trial by jury. We conclude that a
sentence of twenty years for a Class A felony – with no portion suspended to
probation – is appropriate. Therefore, because his sentence for the Class C
felony is concurrent, Singleton’s aggregate sentence is twenty years.
No Contact Order
[20] At the conclusion of the sentencing hearing, the trial court advised Singleton of
the terms of his probation. Included was a provision that Singleton not have
contact with a person under age eighteen. Defense counsel interposed: “I’m
wondering if you would consider modifying any of the conditions of probation
relating to minors under the age of 18 to not apply as to his son” and observed
that Singleton could possibly be released before his son turned eighteen. (Tr.
825.) The trial court replied: “These conditions won’t start until he’s released
from custody” and “I’m not going to do that today.” (Tr. 825.)
[21] Singleton interprets the trial court’s deferment of the motion to modify a
probationary term until his release to constitute a prohibition against any form
of contact with his minor son during his incarceration. We do not agree that
this is the import of the trial court’s language.
[22] First, we observe that defense counsel asked the trial court to modify a
probationary term. The request did not concern a no-contact order pursuant to
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Indiana Code section 35-38-1-30 – a statute which provides that a court may
impose a no-contact order as a condition of an executed sentence.
[23] Second, the trial court was not asked to clarify what parental rights, if any,
Singleton would exercise during his incarceration. From the argument
presented at sentencing, it appears that Singleton’s marriage remains intact and
his wife is willing to facilitate Singleton’s contact with his son. Absent a court
order to the contrary, it is within the prerogative of a custodial parent to
determine the extent of his or her child’s contact with other individuals. See In
re K.I., 903 N.E.2d 453, 462 (Ind. 2009) (recognizing that a parent has a
fundamental right to control the upbringing, education, and religious training of
his or her child).
Conclusion
[24] Singleton’s convictions are affirmed. His sentence is revised to twenty years.
[25] Affirmed in part; reversed in part.
Robb, J., and Brown, J., concur.
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