Appeal from the Marion Superior Court, Criminal Division Room 4. No. 49G04-1205-FB-031784. The Honorable Lisa Borges, Judge. The Honorable Anne Flannelly, Commissioner. On Petition To Transfer from the Indiana Court of Appeals, No. 49A04-1304-CR-183.
ATTORNEY FOR APPELLANT: David Becsey, Zeigler Cohen & Koch, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Brian Reitz, Deputy Attorney General, Indianapolis, Indiana.
Rucker, Justice. Rush, C.J., and Dickson, David and Massa, JJ., concur.
After a bench trial Frank Jacobs was convicted of criminal deviate conduct and criminal confinement. On appeal Jacobs argued, among other things, the trial court
erred in limiting his cross-examination of a witness concerning the credibility for truthfulness of the alleged victim. Finding no error we affirm the judgment of the trial court.
Facts and Procedural History
Sixteen-year-old G.L. lived down the street from fifty-five-year-old Frank Jacobs, Sr. (" Jacobs" ) and his son, thirty-two-year-old Frank Jacobs, Jr. (" Frank Junior" ). Jacobs resided in one side of a duplex; the other side was shared by family members including Frank Junior, Jacobs' sister, and Jacobs' other son Justin. See Tr. at 21, 157-58. G.L. and Frank Junior shared an interest in playing guitar and sometimes " hung out" together at the duplex. Tr. at 20-21. On May 11, 2012, G.L. and Frank Junior spent several hours together painting a neighboring house and playing guitar. In the evening, Frank Junior asked Jacobs to drive him over to a friend's house, and G.L. rode along. After dropping Frank Junior at his friend's house, Jacobs stopped at a gas station and purchased doughnuts and a pack of cigarettes, and then drove G.L. back to the duplex. Jacobs and G.L. went inside to watch TV and eat doughnuts. At this point, the facts are contested. But according to G.L.'s testimony, which represents the facts most favorable to the verdict, Jacobs lay across G.L.'s lap, pulled G.L.'s shorts down, and squeezed G.L.'s penis. Jacobs then attempted to fellate G.L. and in the process Jacobs' teeth scraped G.L.'s penis. Tr. at 29-33. After a short period of time Jacobs stopped, G.L. ran towards the door to leave, Jacobs threw a pack of cigarettes and a five-dollar bill at G.L. and told him not to tell anybody. G.L. went home and told his mother what had happened but begged her not to call the police because he was embarrassed. Tr. at 35. The next day she called the police and G.L. underwent a sexual assault examination at a local hospital. The forensic nurse who examined G.L. observed " quite a bit of crusting and broken skin" on G.L.'s penis, and determined the injuries were bite marks. Tr. at 121, 123.
The State charged Jacobs with Count I, criminal deviate conduct as a Class B felony; Count II, criminal confinement as a Class C felony; Count III, Battery as a Class A misdemeanor; and Count IV, battery as a Class C felony. After a bench trial, the trial court found Jacobs guilty of all four counts. Because of double jeopardy concerns the trial court entered judgment on Counts I and II only. Thereafter the trial court sentenced Jacobs to ten years on Count I and four years on Count II to run concurrently for a total executed term of ten years in the Department of Correction.
Jacobs appealed raising the following restated issues: (1) whether the trial court erred when it excluded testimony regarding G.L.'s truthfulness; (2) whether the trial court erred when it denied Jacobs' request to present his son as a sur-rebuttal witness; and (3) whether Jacobs' convictions subjected him to double jeopardy. Agreeing with the State's concession on the point, the Court of Appeals granted Jacob relief with respect to his third issue and remanded this cause to the trial court with instructions to vacate Jacobs' conviction for Class C felony criminal confinement. See Jacobs v. State, 2 N.E.3d 116, 123 (Ind.Ct.App. 2014), vacated. Concerning issues two and three, the Court of Appeals concluded the trial court erred but the error was harmless. Having previously granted transfer we address whether the trial court erred when it excluded testimony regarding G.L.'s truthfulness. In all other respects, we summarily affirm the opinion of the Court of Appeals. Additional facts are provided below.