Forbes v. State

Ian Forbes, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.

No. 22A-CR-1060

Court of Appeals of Indiana

February 20, 2023

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Marion Superior Court The Honorable Angela Dow Davis, Judge Trial Court Cause No. 49D27-2003-F3-12742

ATTORNEYS FOR APPELLANT Valerie K. Boots Kelly Starling Megan Shipley Marion County Public Defender Agency

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Daylon L. Welliver Deputy Attorney General

MEMORANDUM DECISION

Brown Judge.

[¶1] Ian Forbes appeals his convictions and sentence for rape as a level 3 felony and criminal confinement as a level 5 felony. On cross-appeal, the State asserts Count II, rape by other sexual conduct, should be reinstated because the trial court erroneously merged it with Count I, rape by sexual intercourse. We affirm and remand.

Facts and Procedural History

[¶2] In 2012, Forbes and S.H. began a relationship which resulted in two children. On March 9, 2019, S.H. rented an Airbnb in Broad Ripple. At some point, Forbes and S.H. talked with a woman "by the name of Emily to meet up and possibly have a threesome." Transcript Volume III at 121. Forbes and S.H. arrived at the Airbnb, unpacked, and went to a bar to meet Emily. S.H. expected just to meet Emily and possibly have "sexual intercourse with her later that evening." Id. at 123. S.H. "didn't want to do it other than the fact that [she] wanted to save [her] relationship." Id. at 124.

[¶3] At the bar, the mood was "[v]ery jovial," and Forbes and S.H. were "getting to know" Emily. Id. Forbes's demeanor was "pretty good" and he "was expecting everything to happen." Id. After they had one or two drinks Forbes, S.H., and Emily went to the Airbnb and chatted. Emily eventually said that she was not comfortable "doing anything further that evening but that she would like to meet again" and left between 11:00 p.m. and midnight. Id. at 126.

[¶4] Forbes became upset "about things not going the way . he wanted them to go." Id. at 127. He acted frustrated and angry and asked S.H. "to text [Emily] and see if she would be willing to come back." Id. at 128. S.H. was nervous, knew Forbes was angry, and thought "if I . . . don't get this to happen, it's not going to be good." Id. S.H. told Forbes that Emily was unable to return but that she would love to meet the following weekend. Forbes grew angrier, yelled, and his faced turned red. S.H. became scared.

[¶5] S.H. told Forbes "it's not going to happen." Id. at 129. Forbes lunged at S.H. and began hitting her face, and S.H. felt a sharp pain. S.H. attempted to back away, but Forbes pulled her by her hair and dragged her towards him while her "hair was being ripped out." Id. at 131. She "tried to get away and kind of push away from him," and Forbes bent her fingers back "to get control." Id. After he gained control, he struck her "at least one more time" in her face and said: "If the threesome doesn't happen, then I'm still getting sex." Id. at 132. He then dragged her by her hair into a bedroom. S.H. thought: "I need to do this even though I don't want to otherwise he's going to hurt me worse." Id. at 133.

[¶6] S.H. removed her clothes. Forbes pushed her down onto the bed, removed his pants, and placed his hands on her shoulders so S.H. could not move and was "pushed out facedown into the mattress." Id. at 135. S.H. was still crying, and Forbes angrily mumbled and forced his penis into her vagina. He then penetrated her anus with his penis and forced her to give him oral sex. He then penetrated her either anally or vaginally and ejaculated inside of her.

[¶7] S.H. put on her leggings and coat and asked Forbes for permission to go have a cigarette. Forbes said he did not care, and S.H. opened the back door, stood in the doorway, and smoked a cigarette. While she was smoking, Forbes started angrily yelling for her. S.H. thought about running outside but "it was super late at night" and she "had nothing on." Id. at 142. S.H. observed a basement door directly behind the backdoor, went down the stairs, and covered herself with "a bunch of stuff . . . so it looked like [she] was a pile of laundry and hid." Id. S.H. heard Forbes upstairs stomping, yelling, and pacing through the house. She fell asleep in the basement.

[¶8] Around 3:00 or 3:30 a.m., S.H. awoke and went upstairs to see if Forbes had left or calmed down. Forbes was asleep on the sofa in the living room. S.H. looked for her shirt, shoes, and bra, so she could become fully clothed, but could not find her belongings. She tiptoed through the house, found her phone on the floor right next to the sofa, grabbed it, and went into the bedroom. She closed the bedroom door, which did not have a lock, and took the bookshelf "and kind of shimmied it up underneath it so he couldn't get in or turn the doorknob." Id. at 145. She also unlocked the window in the bedroom because it would be her only other exit.

[¶9] In the morning, S.H. shook Forbes to wake him up and said: "Hey, we've got to get up for the kids. We have to go pick them up it's time to make [sic] up." Id. at 147. Forbes woke up groggily and looked at her with "blank anger." Id. S.H. ran into the bedroom, closed the door, and placed the bookshelf behind it. She told Forbes to calm down and: "We've got to go get the kids. Just chill out, please." Id. at 148. He yelled and started beating on the door so hard that it cracked the frame of the door. S.H. lifted the screen in the window, jumped out, ran, hid at a school behind some stairs, and called her mother. While she waited, she heard Forbes's car, which had a muffler leak, passing on the roads near the school and Forbes yelling her name. S.H.'s mother picked her up, and S.H. picked up her children and went to her parents' home. S.H. received voicemails and text messages from Forbes that were "very mean, threatening, [and] calling [her] names like b---- again." Id. at 160. S.H. debated whether to report the case because Forbes had "basically threatened [her] life . . . and the life of [her] family." Id. The following day, S.H. called law enforcement.

[¶10] On March 30, 2020, the State charged Forbes with: Count I, rape as a level 3 felony; Count II, rape as a level 3 felony; Count III, criminal confinement as a level 5 felony; Count IV, strangulation as a level 6 felony; and Count V, battery resulting in bodily injury as a class A misdemeanor. Count I alleged that Forbes "did knowingly or intentionally have sexual intercourse with [S.H.] when [S.H.] was compelled by force or the imminent threat of force." Appellant's Appendix Volume II at 41. Count II alleged that Forbes "did knowingly or intentionally have other sexual conduct (as defined in I.C. 3531.5-2-221.5) with [S.H.] when [S.H.] was compelled by force or the imminent threat of force." Id.

[¶11] On March 15, 2022, the court held a jury trial. The State presented the testimony of multiple witnesses including S.H., S.H.'s mother, and the sexual assault nurse examiner. After the State rested, Forbes testified that he had six or seven beers that evening and was "[i]nebriated but in control." Transcript Volume IV at 116. He stated that he and S.H. had vaginal, anal, and oral sex. He also stated that S.H. did not try to force him away and he did not hear her express that she did not want to continue. He testified that he told S.H. he wanted to break up, she started crying, screaming, and slapping him, and he shoved her away. He also stated they argued in the morning. He testified that he became concerned when S.H. went into the room and he tried to break down the door and discovered she was not in the room and the window was open. He stated he started looking for her because she had been "talking kind of crazy." Id. at 132. He indicated he filed a paternity suit on January 27, 2020, to gain "access to the kids through the courts." Id. at 135. He also testified that he was desperate to see his children.

[¶12] The jury found Forbes guilty of Counts I, II, III, and V, and not guilty of Count IV. The court stated: "I will enter judgment of conviction for Count I, II, III and V. I and II may have to merge. And so we'll talk about that at the time of sentencing. If they do, I will vacate one of the counts." Id. at 188. The prosecutor said: "That's fine Your Honor. And I just want to double-check everything and - before the Court does that." Id. The court stated: "I won't do anything. I'm entering judgment of conviction right now. And then we will come back for sentencing." Id. at 189. The prosecutor said: "Not to say that we have an argument on that, Your Honor. I just want to double-check it." Id.

[¶13] On April 18, 2022, the court held a sentencing hearing at which the prosecutor referenced cause number 34D03-2104-CM-1249 ("Cause No. 1249") and indicated it was providing copies to the court for the pretrial violations. Forbes's counsel stated "these . . . appear to be allegations from a case that's pending" and objected "to this being used for purposes of this sentencing hearing." Id. at 198. The prosecutor stated: "Your Honor, we're asking the Court to consider as far as being penalized twice for the same offense, but I'm asking the Court to consider it regarding his ability to comply with the conditions of pretrial release for this case." Id. After some discussion, the court stated: "Just for the limited purpose that he was on pretrial release. I'm not going to use it - obviously he hasn't been convicted of that. And so the Court will only consider it in terms of that he was on pretrial...