Erick W. Mack v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 25 2019, 9:43 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
K. Aaron Heifner Curtis T. Hill, Jr.
HEIFNER LAW INC. Attorney General of Indiana
Anderson, Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Erick W. Mack, April 25, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1528
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Thomas Newman, Jr.,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C03-1702-FA-381
Bailey, Judge.
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Case Summary
[1] Erick W. Mack (“Mack”) appeals his convictions of two counts of Child
Molesting, one as a Class A felony and one as a Level 1 felony.1 We affirm.
Issues
[2] Mack presents three consolidated and restated issues for our review:
I. Whether sufficient evidence supports his convictions;
II. Whether the trial court abused its discretion in granting the
jury’s request to have the victim’s testimony replayed; and
III. Whether Mack was entitled to a mistrial.
Facts and Procedural History
[3] On February 10, 2017, Mack was charged with molesting M.A., the teenage
daughter of one of Mack’s closest friends. The State alleged that Mack had
engaged M.A. in sexual activity several years earlier, when she was age
thirteen. Mack was tried before a jury on May 1, 2018 and convicted as
charged. On May 18, 2018, Mack was sentenced to two concurrent terms of
twenty years imprisonment. He now appeals.
1
Ind. Code § 35-42-4-3(a)(1).
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Discussion and Decision
Sufficiency of the Evidence
[4] To convict Mack of Child Molesting, as charged, the State had to prove beyond
a reasonable doubt that he, being twenty-one years of age or older, knowingly
or intentionally performed or submitted to sexual intercourse or other sexual
conduct with M.A., a child under fourteen years of age.2 I.C. § 35-42-4-3; App.
Vol. II, pg. 75. The State presented no evidence of sexual intercourse between
Mack and M.A. Pursuant to Indiana Code Section 35-31.5-2-221.5, “other
sexual conduct” is an act involving a sex organ of one person and the mouth or
anus of another person or penetration of the sex organ or anus of a person by an
object.
[5] Upon a challenge to the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
verdict. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We do not reweigh
the evidence or judge the credibility of witnesses. Id. An appellate court must
affirm “if the probative evidence and reasonable inferences drawn from the
2
The State alleged that Mack committed an offense on or between August 26, 2013 and June 13, 2014 and
committed an offense on or between July 1, 2014 and August 25, 2014, apparently to reflect the change of
category of offense, effective July 1, 2014, from a Class A felony to a Level 1 felony. Generally, time is not
of the essence in the crime of child molesting. Gaby v. State, 949 N.E.2d 870, 876 (Ind. Ct. App. 2011). The
exact date becomes important only in limited circumstances, including when the victim’s age at the time of
the offense falls at or near the dividing line between classes of felonies. Id. M.A. turned fourteen on August
26, 2014. It was incumbent upon the State to prove that the offenses occurred before she reached age
fourteen.
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evidence could have allowed a reasonable trier of fact to find the defendant
guilty beyond a reasonable doubt.” Id.
[6] M.A. testified regarding the allegations as follows. She and Mack were at a
family bonfire and were left alone after her parents went to bed. Mack, who
had been acting “flirty” and “touchy” with her, told her “he’s ready to see it
now.” (Tr. Vol. II, pgs. 63, 68). M.A. took down her pants and underwear and
Mack “touch[ed] between [her] legs with his finger … for a little bit” before
they walked around the corner of the house and Mack “did oral on [her].” Id.
at 68-69. M.A. specified that this meant Mack “put his tongue between [her]
legs.” Id. at 70. They proceeded into the house and sat on a love seat, where
M.A. “performed a hand job on [Mack].” Id. At a separate time, Mack was
driving his vehicle and M.A. was a passenger when Mack suggested that M.A.
could get naked. M.A. took down her jeans and Mack placed his “finger into
[her] vagina multiple times.” Id. at 74. M.A. testified that she was thirteen
years old when these events occurred.
[7] M.A.’s mother also testified that M.A. had been thirteen when she confronted
Mack about her suspicions as to his interest in her daughter and Mack stopped
visiting the family. M.A.’s mother further testified that, after the police
investigation began, Mack had called her to say he was “sorry that it happened”
and “sorry for the whole mess that happened to our family.” Id. at 139.
[8] Mack asks that we discard M.A.’s testimony under the incredible dubiosity rule
because of perceived discrepancies between her investigative interview, pretrial
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deposition, and trial testimony. The “incredible dubiosity rule,” which
impinges on the jury’s responsibility to judge the credibility of witnesses, is of
limited scope. Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015). “First, the
application of this rule has been restricted to cases where there is a single
testifying witness.” Id. at 757. “The second factor is whether the witness’
testimony is inherently improbable, contradictory, or coerced, resulting in the
testimony being incredibly dubious.” Id. at 758. Finally, “[i]n a case where
there is circumstantial evidence of an individual’s guilt, reliance on the
incredible dubiosity rule is misplaced.” Id. at 759.
[9] Here, M.A. testified unequivocally that, when she was thirteen years old, Mack
had used his mouth and fingers to touch her vagina. M.A.’s mother provided
some corroborative testimony that she voiced suspicion and Mack never visited
the family thereafter (although they had been extremely close in the past) and
Mack called to offer an apology of sorts. This was not a case of a sole witness
offering dubious testimony; M.A.’s earlier lack of specificity or some
discrepancy between pretrial statements and trial testimony is not a basis for
application of the incredible dubiosity rule. See Corbett v. State, 764 N.E.2d 622,
626 (Ind. 2002) (recognizing that inconsistencies between a police statement
and trial testimony does not equate to uncorroborated “testimony inherently
contradictory as a result of coercion”). Sufficient evidence supports Mack’s
convictions.
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Replay of M.A.’s Testimony to the Jury
[10] During deliberations, the jury foreman advised the trial court that the jury
needed clarification regarding M.A.’s testimony and the time frame of the
offenses. The trial court advised that, if the jury was requesting to rehear
M.A.’s testimony, it would be replayed in its entirety and the foreman
responded that the replay “will help us.” (Tr. Vol. II. Pg. 232.) Mack now
argues that the replay of testimony was prejudicial to him because the replay
included bench conferences and the jury was unable to examine M.A.’s
demeanor.
[11] The State responds – and our examination of the transcript leads us to agree –
that the record does not support Mack’s assertion that bench conferences were
included in the replay. As for the contention that the jurors were unable to
assess M.A.’s demeanor during the replay, we agree with Mack that an audio
replay is not equivalent to live testimony. Nonetheless, Indiana Code Section
34-36-1-6 requires a trial court to replay testimony when the jury expresses
disagreement as to any part of the testimony and, even when the statute is not
triggered, a court has discretion to replay testimony. Parks v. State, 921 N.E.2d
826, 831 (Ind. Ct. App. 2010), trans. denied. Mack’s cursory claim of prejudice
falls short of demonstrating that the trial court abused its discretion.
Mistrial
[12] A mistrial is an extreme remedy appropriate only when other remedial
measures are insufficient to rectify the situation. Mickens v. State, 742 N.E.2d
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927, 929 (Ind. 2001). A trial judge has discretion in determining whether to
grant a mistrial and his or her decision is afforded great deference because the
trial judge ‘“is in the best position to gauge the surrounding circumstances of an
event and its impact on the jury.”’ Id. (quoting Gregory v. State, 540 N.E.2d 585,
589 (Ind. 1989)). To prevail on appeal from the denial of a motion for mistrial,
an appellant must establish that the questioned 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
consideration of the misconduct’s probable persuasive effect on the jury’s
decision, rather than the impropriety of the conduct. Id.
[13] Mack first moved for a mistrial before trial commenced, when he learned that
the State would be introducing photographs relevant to establishing a timeline.
His second motion for a mistrial was made during testimony by Detective Brett
Wright (“Det. Wright”), with Mack claiming that the State had violated a
motion in limine. We examine each incident in turn.
[14] Photographs. Immediately prior to the commencement of trial, the State
provided Mack with copies of photographs that the State had obtained from
M.A.’s mother a few days earlier. The photographs were from April 26, 2014,
purportedly representing the last time that M.A.’s mother saw Mack. Mack
asked the trial court to exclude the photographs because it was “too late for
discovery.” (Tr. Vol. II., pg. 20.) The trial court declined to exclude the
evidence and denied Mack’s motion for a continuance. However, the trial
court permitted Mack to conduct a pretrial deposition of M.A.’s mother.
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[15] M.A.’s mother explained that she formerly believed the photographs had been
deleted and was under this impression when deposed by Mack. However, she
had recently found a camera with a “sim card.” Id. at 37. At some point, she
had told a deputy prosecutor about finding the camera, but she did not
immediately produce photographs from the camera memory card. Ultimately,
M.A.’s mother had “gone to the CVS on Sunday [before trial]” and printed
photographs. Id. at 39. When she acknowledged that she had, on the Thursday
before trial, tried to produce photographs “at the courthouse” without success,
Mack moved for a mistrial. Id. at 40. The State argued that Mack was not
unduly prejudiced, having known of the possibility the photographs existed
because it was mentioned in the probable cause affidavit. Mack responded that
there was a “potential Brady violation.” Id. at 46. The trial court denied the
motion for a mistrial.
[16] “To prevail on a Brady claim, a defendant must establish: (1) that the
prosecution suppressed evidence; (2) that the evidence was favorable to the
defense; and (3) that the evidence was material to an issue at trial.” Minnick v.
State, 698 N.E.2d 745, 755 (Ind. 1998) (citing Brady v. Maryland, 373 U.S. 87
(1963)). Brady deals with suppression of material evidence favorable to the
defense. Mack does not make a claim that material evidence favorable to him
was suppressed. Rather, he claims that the State was obligated to produce the
photographs to him “about a week or more prior to trial, at which time, the
Defense could have reviewed the images and determined if they needed a
continuance due to the newly acquired evidence” and he asserts that he was
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required to “alter [his] trial strategy on the day of trial.” Appellant’s Brief at 27.
At bottom, Mack voiced a discovery complaint. The better practice would have
been for the State to supplement its discovery responses immediately upon
learning that photographic images would be available. But Mack does not
explain how a continuance would have benefited him. He conducted an in-
court, pretrial deposition of M.A.’s mother, and this revealed no grounds upon
which to exclude the photographs. Mack was not placed in grave peril by the
delay in disclosure to merit a mistrial.
[17] Motion in Limine. Prior to the State’s elicitation of testimony from Det. Wright,
Mack’s counsel stated that he wished to make an oral motion in limine.
Defense counsel advised the court that he believed Det. Wright would offer
testimony about his three attempts to contact Mack for an interview. On the
first two occasions, Mack spoke with Det. Wright and stated that he was busy
with work and travel plans. At the third attempted contact, defense counsel
answered the call and told Det. Wright “[Mack]’s not going to talk to you.”
(Tr. Vol. II, pg. 127.) The deputy prosecutor agreed with defense counsel that
there should be no reference to Mack obtaining legal representation or to a
refusal to talk. She described her intent to elicit questions to establish: Det.
Wright called Mack (without telling him the reason for the call), Mack
responded that he was very busy and “on the road,” on a third call, Det. Wright
left a voicemail, and, ultimately, he was not able to make contact. The trial
court granted the oral motion in limine “as to the third one.” Id. at 129.
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[18] Subsequently, Det. Wright testified that he spoke with Mack on two occasions
but Mack “had a busy work schedule” and it “wasn’t convenient at that time”
to conduct an interview. Id. at 160. Det. Wright further testified that he told
Mack “give me a call” when his schedule became less hectic. Id. Then the
following exchange took place:
State: Did he reach out to you with some availability?
Det. Wright: He didn’t.
State: Ultimately were you able to sit down and speak with the
defendant?
Defense: Objection.
Id. at 161. During the ensuing bench conference, Mack argued that the State
had deployed an evidentiary harpoon by making reference to a third contact,
and he requested a mistrial. An “evidentiary harpoon” occurs when a
prosecutor places inadmissible evidence before the jury for the deliberate
purpose of prejudicing the jurors against a defendant. Evans v. State, 643
N.E.2d 877, 879 (Ind. 1994). To prevail, the defendant must show both that the
prosecutor acted deliberately and that the evidence was inadmissible. Id. The
trial court concluded that the State had not deployed an evidentiary harpoon
and denied the motion for a mistrial. We agree with the trial court. The State
did not propound questions to elicit testimony either that Mack had an attorney
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take Det. Wright’s call or that Mack refused to speak. The record shows
neither a violation of the motion in limine or an evidentiary harpoon.
[19] Alternatively, Mack argues that the prosecutor committed a Doyle violation. See
Doyle v. Ohio, 426 U.S. 610 (1976). “In Doyle, the Court held that under the
Fourteenth Amendment a prosecutor may not use the silence of a defendant
who’s been arrested and Mirandized to impeach the defendant.” Trice v. State,
766 N.E.2d 1180, 1182 (Ind. 2002). Doyle rests on the fundamental unfairness
of implicitly assuring a suspect that his silence will not be used against him and
then using his silence to impeach an explanation subsequently offered at trial.
Teague v. State, 891 N.E.2d 1121, 1124 (Ind. Ct. App. 2008) (citing Wainwright
v. Greenfield, 474 U.S. 284, 291 (1986)). Here, however, Doyle has no
application. Mack was not under arrest and had not received Miranda3
warnings when Det. Wright attempted to contact him. And Mack did not
testify and offer an explanation subject to impeachment. Doyle provides Mack
with no grounds for a mistrial.
Conclusion
[20] Sufficient evidence supports Mack’s convictions. He did not demonstrate an
abuse of discretion by the trial court in replaying victim testimony. He did not
demonstrate his entitlement to a mistrial.
3
384 U.S. 436 (1966).
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[21] Affirmed.
Riley, J., and Pyle, J., concur.
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