Thomas Andrew Lybrook v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 04 2020, 8:46 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brian A. Karle Curtis T. Hill, Jr. Ball Eggleston Attorney General of Indiana Lafayette, Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Thomas Andrew Lybrook, November 4, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-537 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Sean M. Persin, Appellee-Plaintiff. Judge Trial Court Cause No. 79C01-1804-F1-4

Riley, Judge. Court of Appeals of Indiana | Memorandum Decision 20A-CR-537 | November 4, 2020 Page 1 of 7

STATEMENT OF THE CASE [1] Appellant-Defendant, Thomas A. Lybrook (Lybrook), appeals his conviction

for two Counts of child molesting, Level 1 felonies, Ind. Code § 35-42-4-3(a). [2] We affirm.

ISSUE [3] Lybrook presents this court with one issue on appeal, which we restate as:

Whether the trial court abused its discretion by excluding character evidence of

the child victim.

FACTS AND PROCEDURAL HISTORY [4] In March of 2015, William Galeener (Galeener) and his girlfriend, Michelle

Phebus got custody of Galeener’s granddaughters, M.B, then approximately

five years old, and C.B. In July 2016, Galeener offered Lybrook, whom he had

known for about thirty years, a job to do some construction work. In the later

part of 2017, Lybrook began babysitting M.B. and C.B., either at Galeener’s

home or at his trailer depending on whether Lybrook’s own child was staying

with him. [5] When Lybrook was babysitting M.B. at his trailer, the two of them would go

into Lybrook’s bedroom and close the door. Lybrook would “pull down his

pants and force [M.B.] to pull down [her] pants.” (Transcript Vol. II, p. 42).

M.B. saw Lybrook’s “private part” and indicated that “he can like make it

where it’s like hard and soft by doing something.” (Tr. Vol. II, p. 43). M.B.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-537 | November 4, 2020 Page 2 of 7

described that Lybrook touched “[d]own where my private was, my front one”

with his penis “inside” and that it “hurt really bad.” (Tr. Vol. II, p. 43). While

M.B. was unable to recall how many times these incidents happened, she

affirmed that it happened more than once. M.B. also recalled a time when

Lybrook “took his private part, his private part that he goes number one with

and he took it and put in where I go number two.” (Tr. Vol. II, p. 60). She

described Lybrook’s penis penetrating her anus and the subsequent pain. M.B.

related that Lybook touched the “top” of her vagina with a “pink oval toy

thingy.” (Tr. Vol. II, p. 44). She described the toy as having three buttons that

made it vibrate at different speeds and that “it ma[de] like a bee sound.” (Tr.

Vol. II, p. 45). Lybrook’s son remembered that M.B. and Lybrook had

conversations in Lybrook’s bedroom with the door closed on approximately

five different times. [6] On April 10, 2018, Galeener was contacted by M.B.’s elementary school. A

sexual assault examination revealed a detectable amount of male DNA present,

but not enough to identify the source of the DNA. DNA deposited via touch or

in the anus remains viable for 24 hours, while DNA deposited in the vagina

remains viable for up to 72 hours. Lybrook had last babysat M.B. between

April 6 and April 8, 2018. [7] On April 17, 2018, the State filed an Information, charging Lybrook with five

Counts of Level 1 felony child molesting. On January 13, 2020, Lybrook

waived his right to a jury trial. Two days later, on January 15, 2020, the trial

court conducted a bench trial. During the bench trial, Lybrook called Galeener

Court of Appeals of Indiana | Memorandum Decision 20A-CR-537 | November 4, 2020 Page 3 of 7

during his case-in-chief. Lybrook inquired whether Galeener had “any

concerns about the credibility of the accusations.” (Tr. Vol. II, p. 205). The

State objected and Lybrook’s counsel explained that she was attempting to

question Galeener about his prior statements. The trial court allowed her to

rephrase the question. Upon rephrasing, Lybrook’s counsel asked, “Did you

ever report to law enforcement that you had concerns about the credibility of

the statements made by M.B.?” (Tr. Vol. II, p. 206). The State renewed its

objection because of its improper character as it called for a specific instance of

dishonesty. Again, the trial court found the question to be impermissible but

allowed Lybrook’s counsel to rephrase. Lybrook then questioned whether

Galeener, during the time M.B. had lived with him, had ever caught M.B. in a

lie. The State again objected on the same grounds. Finding that Lybrook was

not conducting cross-examination of Galeener, the trial court concluded that

the question was impermissible under the purview of Indiana Evidence Rule

608(b). [8] At the conclusion of the evidence, the trial court found Lybrook guilty of two

Counts of Level 1 child molesting. On February 21, 2020, the trial court

conducted a sentencing hearing, at the close of which, it sentenced Lybrook to

an aggregate term of forty years. [9] Lybrook now appeals. Additional facts will be provided if necessary.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-537 | November 4, 2020 Page 4 of 7

DISCUSSION AND DECISION [10] Lybrook contends that the trial court abused its discretion when it prevented

him from inquiring into M.B.’s credibility and reputation for truthfulness

pursuant to Indiana Evidence Rule 608. The trial court has inherent

discretionary power over the admission of evidence, and its decisions are

reviewed only for an abuse of that discretion. Bowman v. State, 73 N.E.3d 731,

734 (Ind. Ct. App. 2017), trans. denied. Accordingly, we will reverse the trial

court’s decision only when it is clearly against the facts and circumstances

before the court. Id. A trial court’s decision will be affirmed on any basis

apparent in the record, whether or not relied on by the trial court. Jeter v. State,

888 N.E.2d 1257, 1267 (Ind. 2008). [11] While three specific Rules of Evidence address character evidence in trial

proceedings—Evidence Rule 404(a), 405(a), and 608—Lybrook’s argument

solely focuses on the application of Indiana Rule of Evidence 608, which

provides that:

(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in

Court of Appeals of Indiana | Memorandum Decision 20A-CR-537 | November 4, 2020 Page 5 of 7

order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of another witness whose character the witness being cross-examined has testified about.

[12] In Jacobs v. State, 22 N.E.3d 1286 (Ind. 2015), our supreme court was faced with

the cross-examination of a witness concerning the credibility for truthfulness of

the child victim of criminal deviate conduct. On at least three occasions during

cross-examination, defense counsel attempted to elicit from the child’s mother

testimony about specific instances of the child not being truthful. Id. at 1288.

One instance involved alleged behavioral problems the child was experiencing

which resulted in him no longer living with his father, another involved

whether the child told his mother that he was attending school when allegedly

he was not, and in a third instance counsel sought additional “specific

examples” of lies that the child may have told his mother. Id. Our supreme

court noted that because Jacobs attempted to delve into specific instances of the

child’s truthfulness, the testimony was prohibited under Evidence Rule 608. See

also Beaty v. State, 856 N.E.2d 1264, 1269 (Ind. Ct. App. 2006) (“Indiana cases

have consistently held that Evidence Rule 608(b) prohibits the introduction of

evidence regarding specific instances of misconduct.”), trans. denied [13] Likewise, here, Lybrook attempted to inquire about specific instances of M.B.’s

truthfulness when he questioned whether Galeener had informed law

enforcement about the credibility of the statements. Although not explicitly

Court of Appeals of Indiana | Memorandum Decision 20A-CR-537 | November 4, 2020 Page 6 of 7

connected to the instances of child molest, by referring to law enforcement,

Lybrook clearly focused on M.B.’s truthfulness about her specific accusations,

which is prohibited under Evidence Rule 608. We reach a similar result with

regards to Lybrook’s question if Galeener had ever caught M.B. in a lie, as it

asked for specific examples of untruthfulness. [14] Even if we characterize Lybrook’s questioning of Galeener as to whether he

had ever caught M.B. in a lie during the time M.B. had lived with him as a

general question without eliciting specific examples, we must conclude that the

testimony is prohibited pursuant to Evidence Rule 608(b) as Galeener was

called in Lybrook’s case-in-chief and was not testifying on cross-examination.

Accordingly, the trial court did not abuse its discretion in excluding the

improper character evidence.

CONCLUSION [15] Based on the foregoing, we conclude that the trial court properly excluded

testimony about the child victim’s reputation for truthfulness. [16] Affirmed. [17] May, J. and Altice, J. concur

Court of Appeals of Indiana | Memorandum Decision 20A-CR-537 | November 4, 2020 Page 7 of 7