Michael S. Washington v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jan 28 2016, 8:25 am
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 ATTORNEYS FOR APPELLEE
Stacy R. Uliana Gregory F. Zoeller
Bargersville, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael S. Washington, January 28, 2016
Appellant-Defendant, Court of Appeals Case No.
84A01-1504-CR-140
v. Appeal from the Vigo Superior
Court
The Honorable Michael J. Lewis,
State of Indiana, Judge
Appellee-Plaintiff. Trial Court Cause No. 84D06-0702-
FA-385
Bradford, Judge.
Case Summary
[1] When Appellant-Defendant Michael Washington married Jackie Washington,
Jackie’s daughter A.F. was two years old. When A.F. was four, Washington
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began fondling her breasts and vagina, and, when she was ten, he began
performing oral sex on her. Several years later, after A.F. went to the
authorities and reported what Washington had done to her, Appellee-Plaintiff
the State ultimately charged him with five counts of child molesting, three of
which were based on his molestation of A.F. and covered three non-
overlapping time periods.
[2] During jury deliberations at Washington’s trial, the jury asked the trial court if
it was required to find Washington guilty of all three counts if it found him
guilty of one. The trial court replied that it was for the jury to determine. The
jury then indicated that it was deadlocked, and the trial court clarified that each
count was separate and that it could find Washington guilty of all three, not
guilty of all three, or guilty on some and not guilty on others. The jury found
Washington guilty of one count of Class A felony child molesting, and the trial
court sentenced him to twenty years of incarceration. Washington contends
that the State produced insufficient evidence to sustain his conviction and that
the trial court abused its discretion in responding to the jury’s inquiries.
Because we disagree, we affirm.
Facts and Procedural History
[3] A.F. was born August 4, 1982, to Jackie and her first husband. Jackie
subsequently married Washington when A.F. was approximately two years old.
Washington, who cared for A.F. while Jackie worked, began fondling A.F.’s
breasts and vagina when A.F. was four. When A.F. was ten, Washington
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began performing oral sex on her, which continued until A.F. was nineteen.
A.F. testified that Washington fondled her daily and performed oral sex on her
twelve to thirteen times a week throughout this period.
[4] In 2005, A.F. (by this time twenty-two or twenty-three years old), along with
her sister and Jackie’s niece, gave statements to police in which they alleged
that Washington had molested them. When Jackie’s mother confronted
Washington, he admitted that he had molested “them[,]” apologized, and gave
no reasons for doing so “[e]xcept for the beer.” Tr. pp. 201, 202. Washington
also admitted to A.F.’s ex-husband that he had molested “the girls [and] that he
was sorry and that he was gonna get help.” Tr. p. 224. On February 1, 2007,
the State charged Washington with three counts of Class A felony child
molesting. On September 5, 2013, in an amended charging information, the
State charged Washington with four counts of Class B felony child molesting
and one count of Class A felony child molesting. Counts III, IV, and V
involved the alleged molestation of A.F., alleging sexual intercourse or deviate
sexual conduct that occurred in Count III between August 4, 1992, and June
30, 1994; in Count IV between July 1, 1994, and June 30, 1996; and in Count V
between July 1, 1996, and August 3, 1996.
[5] Washington’s jury trial began on February 18, 2015. During jury deliberations,
the jury asked the trial court, “on counts 3, 4 & 5, if we find him guilty of one,
does that make him guilty of all three?” Appellant’s App. p. 218. The trial
court replied, “That is for you as the jury to determine.” Appellant’s App. p.
218. Later, the jury sent the following to the trial court: “We are ‘stuck’ with a
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final tally of 9-3. Where do we go from here?” Appellant’s App. p. 219. In
response, the trial court called the jury into court and the following exchange
occurred:
THE COURT: Okay we’re back on the record, State of
Indiana versus Michael Washington[.] Have
a question from the jury. Um, we are stuck
with a final tally of, final tally of nine to three
where do we go from here? Well is there
anything else the Court could do or the
attorney’s [sic] could do to assist you? Do we
have a foreperson?
Juror: Yes.
THE COURT: Is there anything else we could do to assist
you?
Juror: Yeah, um…
THE COURT: I, I gave you that answer. We can’t answer
any further other than if you find guilty on
number three does that mean automatic four
and five, those are all, as the prosecutor
explained to you, those are all separate
counts. So they could be count 1, everything
could be not guilty, everything could be
guilty, you could have not guilty on some,
guilty on others. That’s how…
Juror: Okay.
THE COURT: Is there anything else we can do? Other than
that question?
Juror: I can’t think of anything else, anyone else?
We can not [sic] think of anything.
THE COURT: Nothing that will help this issue come to a
decision?
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Juror: We were about there.
Tr. pp. 426-27.
[6] After completing deliberations, the jury found Washington guilty of Count V
and not guilty of the other four counts. On March 20, 2015, the trial court
sentenced Washington to twenty years of incarceration.
Discussion and Decision
I. Whether the State Produced Sufficient Evidence to
Sustain Washington’s Conviction
[7] Washington contends that the State produced insufficient evidence to sustain
his conviction for Class A felony child molesting. When reviewing the
sufficiency of the evidence, we neither reweigh the evidence nor resolve
questions of credibility. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995). We
look only to the evidence of probative value and the reasonable inferences to be
drawn therefrom which support the verdict. Id. If from that viewpoint there is
evidence of probative value from which a reasonable trier of fact could conclude
that the defendant was guilty beyond a reasonable doubt, we will affirm the
conviction. Spangler v. State, 607 N.E.2d 720, 724 (Ind. 1993).
[8] Washington argues, essentially, that A.F.’s testimony that she was molested
twelve to thirteen times per week from around 1992 to around 2001 is too
vague to establish that she was molested at least once between July 1 and
August 3, 1996. The jury, however, was free to believe all, none, or any part of
A.F.’s testimony, as it saw fit. Put another way, the jury’s apparent refusal to
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credit A.F.’s testimony that she was molested before July 1, 1996, or after
August 3, 1996, does not require it to discredit all of her testimony. The jury
was within its prerogative to conclude that A.F.’s testimony established that she
was molested at least one time between July 1 and August 3, 1996, and not
anytime else. Washington’s argument amounts to nothing more than an
invitation to reweigh the evidence, which we will not do.
[9] Washington also contends that the incredible dubiosity rule mandates reversal
of his conviction. “Appellate courts may, however, apply the ‘incredible
dubiosity’ rule to impinge upon a jury’s function to judge the credibility of a
witness.” Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007) (citing Love v.
State, 761 N.E.2d 806, 810 (Ind. 2002)).
If a sole witness presents inherently improbable testimony and
there is a complete lack of circumstantial evidence, a defendant’s
conviction may be reversed. This is appropriate only where the
court has confronted inherently improbable testimony or coerced,
equivocal, wholly uncorroborated testimony of incredible
dubiosity. Application of this rule is rare and the standard to be
applied is whether the testimony is so incredibly dubious or
inherently improbable that no reasonable person could believe it.
Love, 761 N.E.2d at 810 (citations omitted).
[10] At the very least, the incredible dubiosity rule does not apply in this case
because A.F. was not the sole witness to present evidence that Washington
molested her. Jackie’s mother and A.F.’s ex-husband both testified that
Washington, after being formally accused of molestation, admitted to molesting
“them” or “the girls,” respectively. Because A.F. was not the sole witness
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whose testimony tended to support Washington’s conviction, the incredibly
dubiosity rule does not apply, and we need not address his argument in this
regard further.1
II. Whether the Trial Court’s Response to the Jury’s
Impasse was Improper
[11] Washington contends that the trial court’s response to the jury’s questions
regarding their impasse was erroneous, necessitating reversal. The State argues,
inter alia, that Washington has waived this claim for appellate review. In order
to preserve a claimed error in the trial court’s response to a jury question, at the
very least the party must object, which Washington did not do. See Foster v.
State, 698 N.E.2d 1166, 1169 (Ind. 1998) (concluding that claim regarding
response to jury question was waived where defendant did not object to trial
court’s decision not to answer jury question and did not propose a response or
supplemental jury instructions). Although Washington contends that he was
denied the opportunity to object outside the presence of the jury to the trial
court’s proposed responses, there is nothing in the record to indicate that this
occurred. “The appellant has the burden of establishing the record necessary to
his claim.” Id. at 852. Because the record is devoid of any indication of an
1
Finally, relying only on a case from Iowa, Washington contends that we should subject the jury’s allegedly
inconsistent verdicts to heightened scrutiny. Even if we assume that the jury’s verdicts were, in fact,
inconsistent, such a claim is not a viable issue on appeal in Indiana, see Beattie v. State, 924 N.E.2d 643, 649
(Ind. 2010), as Washington himself acknowledges.
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objection by Washington, we conclude that the issue is waived for appellate
consideration.
[12] Washington, however, argues that even if he waived the issue below, the trial
court’s responses to the jury’s questions amounted to fundamental error.
A claim that has been waived by a defendant’s failure to raise a
contemporaneous objection can be reviewed on appeal if the
reviewing court determines that a fundamental error occurred.
See, e.g., Trice v. State, 766 N.E.2d 1180, 1182 (Ind. 2002);
Hayworth v. State, 904 N.E.2d 684, 694 (Ind. Ct. App. 2009). The
fundamental error exception is “extremely narrow, and applies
only when the error constitutes a blatant violation of basic
principles, the harm or potential for harm is substantial, and the
resulting error denies the defendant fundamental due process.”
Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). The error
claimed must either “make a fair trial impossible” or constitute
“clearly blatant violations of basic and elementary principles of
due process.” Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009).
This exception is available only in “egregious circumstances.”
Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003).
Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010).
A “finding of fundamental error essentially means that the trial
judge erred ... by not acting when he or she should have,” even
without being spurred to action by a timely objection. Whiting v.
State, 969 N.E.2d 24, 34 (Ind. 2012). An error blatant enough to
require a judge to take action sua sponte is necessarily blatant
enough to draw any competent attorney’s objection. But the
reverse is also true: if the judge could recognize a viable reason
why an effective attorney might not object, the error is not
blatant enough to constitute fundamental error.
Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014).
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[13] Indiana Jury Rule 28 provides as follows:
If the jury advises the court that it has reached an impasse in its
deliberations, the court may, but only in the presence of counsel,
and, in a criminal case the parties, inquire of the jurors to
determine whether and how the court and counsel can assist
them in their deliberative process. After receiving the jurors’
response, if any, the court, after consultation with counsel, may
direct that further proceedings occur as appropriate.
[14] According to Washington, the jury’s questions about Counts III, IV, and V
related to legality of inconsistent verdicts, and the trial court’s response that the
jury could find Washington guilty or not guilty of any or all of the charges
against him amounted to improper encouragement to deliver inconsistent
verdicts. Washington’s basic premise, however, is false. Quite simply, there is
no logical inconsistency in finding him guilty of only one of the three charges
against him. As explained previously, the three charges against Washington
arose from his alleged molestation of A.F. during three, non-overlapping time
periods. The jury was free to find that Washington molested A.F. during only
one of those three time periods (or none, two, or all three, for that matter) if it
saw fit, and it did. Contrary to Washington’s contention, there is no logical
inconsistency between the jury’s verdicts in this case. Consequently, the trial
court’s response to the jury’s questions, even if it had encouraged a split verdict,
did not amount to fundamental error.
[15] The judgment of the trial court is affirmed.
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Baker, J., and Pyle, J., concur.
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