Kevin Townsend v. State of Indiana , 26 N.E.3d 619 ( 2015 )

Feb 12 2015, 6:47 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Leeman Gregory F. Zoeller
Leeman Law Offices Attorney General of Indiana
Logansport, Indiana
Brian Reitz
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin Townsend, February 12, 2015
Appellant-Defendant, Court of Appeals Case No.
09A02-1407-CR-464
v. Appeal from the Cass Superior Court
The Honorable Richard A.
State of Indiana, Maughmer, Judge
Cause No. 09D02-0911-FA-12
Appellee-Plaintiff.
Brown, Judge.
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[1] Kevin Townsend appeals his convictions for vicarious sexual gratification as a
class B felony and possession of child pornography as a class D felony.
Townsend raises two issues, which we revise and restate as:
I. Whether the evidence is sufficient to sustain his conviction of
vicarious sexual gratification;1 and
II. Whether his right to compulsory process was violated when the trial
court excluded a witness from testifying.
We affirm.
Facts and Procedural History
[2] The facts favorable to the conviction reveal that, in December 2008, thirteen-
year-old S.W. lived with her grandmother in Tennessee. During her school
Christmas break that year, S.W. traveled to Logansport, Indiana, to visit her
mother. The boyfriend of S.W.’s mother had a sister named Amy Spampinato,
who had two on-again-off-again boyfriends, Townsend and Lawrence Gill.
Townsend worked as a truck driver and drove throughout the country, and he
1
Townsend does not challenge the sufficiency of the evidence for his possession of child pornography
conviction.
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would stay with Spampinato on the weekends when he was in town. Gill also
sometimes stayed with Spampinato.
[3] S.W. met Townsend during her December visit and had seen him with
Spampinato before. Earlier that spring, Spampinato threw a joint birthday
party at Chuck E. Cheese’s for one of her daughters and S.W. and had separate
birthday cakes for each girl, and S.W.’s cake had thirteen candles on it. S.W.
told Townsend during her visit in December that she was thirteen. At that
time, Townsend was twenty-six years old and Spampinato was twenty-eight
years old.
[4] During S.W.’s visit, Townsend became interested in S.W. and told Spampinato
he wanted to have sexual contact with S.W., specifically stating that he
“wanted to eat her pussy.” Transcript at 177. He “repeatedly” asked that
Spampinato approach S.W. to see if S.W. would have sexual contact with him.
Id. When asked, S.W. told Spampinato that “she didn’t want anything like
that.” Id. Also, while Spampinato was in the shower, Townsend asked S.W. to
let him perform oral sex on her and that she should “let [him] do it now while
[Spampinato] is in the shower;” S.W. refused and turned away when Townsend
tried to kiss her. Id. at 36.
[5] On another day that December, Spampinato sent S.W. upstairs to wake
Townsend, and when she did he looked up at her, reached out his arm, lifted
S.W.’s shirt to expose her skin, and began rubbing her side. S.W. walked out of
the room and was “scared” and “nervous,” and she “didn’t know what to
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think.” Id. at 40-41. S.W. told Spampinato about Townsend’s advances, but
“it didn’t matter” to Spampinato. Id. at 41.
[6] On either the 28th or 29th of December 2008, S.W. and her cousin C.S., who
was also visiting Logansport and had turned fourteen years old several days
before Christmas, went to spend the night at Spampinato’s house. Before they
went, S.W. told C.S. about Townsend’s advances, they discussed whether to
stay with Spampinato, and they decided to go to Spampinato’s because
Townsend was not going to be there. After S.W. and C.S. arrived at
Spampinato’s house, the three drove to Dollar General to purchase garbage
bags, and Spampinato received a phone call from Townsend. While they were
talking, C.S. stated that she was bi-sexual, which Townsend heard. He
confirmed with Spampinato what C.S. stated, and told Spampinato to “work
something out.” Id. at 180. Townsend told her specifically that he wanted her
“to set up to have a threesome with the girls and to satisfy them until he got
home,” and to “perform sex acts on them that would make them happy so that
they would stay there until he got there.” Id. at 180-181. Townsend also told
Spampinato that she “better make them happy until he got there or else” and
she “better not mess this up like [she does] everything else.” Id. at 181, 190.
Townsend planned to have sex with S.W. and C.S. when he returned. Id. at
181.
[7] Later that evening, Spampinato, S.W., and C.S. drove to a drugstore, where
Spampinato purchased vodka, and then to a grocery store, where Spampinato
purchased orange juice. They returned home, went upstairs to Spampinato’s
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bedroom, and began mixing orange juice and vodka drinks. S.W. and C.S.
both drank “[a] lot” of alcohol and became intoxicated. Id. at 55, 89.
[8] At one point, Spampinato gave C.S. black lingerie to try on and began taking
pictures of C.S. in the lingerie with the camera on her cell phone. S.W. also
tried on the lingerie, and Spampinato took pictures of her. Townsend requested
that Spampinato send the pictures to his cell phone, and Spampinato did so.
“[R]ight after” the photographs were taken, Townsend, who had pulled his
semitrailer truck into a parking lot in Kentucky for the night, began speaking on
the phone with Spampinato, and he continued to speak on the phone with
Spampinato, S.W., and C.S. during the remaining events that night. Id. at 109.
Townsend told S.W. and C.S. that he wished he could be there with them, and
he told C.S. that “he wanted to eat [her] out.” Id. at 90. While on the phone
with Spampinato, Townsend told Spampinato “exactly what he wanted [her] to
do” to the girls, including performing oral sex on the girls and to use a vibrator
on them that Townsend had recently purchased for her. Id. at 190.
[9] The girls began trying on more of Spampinato’s clothes, and they were
“drinking and drinking, laughing, you know, just hanging out,” and then things
“switched up” and S.W. “ended up lying on the bed and her pants were off . . .
.” Id. at 57-58. At one point, a pornographic video started playing on
Spampinato’s television. Spampinato began taking pictures of S.W.’s and
C.S.’s vaginas and sent them to Townsend. Spampinato made a video on her
cell phone and attempted to send it to Townsend, but he did not receive it.
After the cell phone video failed to send, Townsend told Spampinato to use a
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camcorder she had in her bedroom “to record what was going on so that he
could see it when he got home.” Id. at 185.
[10] Spampinato touched S.W.’s vagina and inserted her fingers into S.W.’s vagina.
She also put her fingers inside C.S.’s vagina. Spampinato then retrieved a
vibrator Townsend had given her days earlier and used it on C.S. by placing it
in C.S.’s vagina. At one point while C.S. was speaking to Townsend on the
phone, S.W. asked C.S. to hang up with Townsend and Spampinato stated:
“no, he’ll like that.” Exhibit 2b at 4:10. Soon after, S.W. inserted the vibrator
into C.S.’s vagina, and while this was occurring Spampinato was speaking to
Townsend and stated: “Right now she’s playing. Yea she’s using my toy on
[C.S.].” Id. at 7:05-7:15. Afterward, S.W. was speaking to Townsend on the
phone and laughed and told him “I’m friggin’ scared,” and she told C.S. not to
“record it and send it to [Townsend] because I’m talking to him right now.” Id.
at 9:00-9:15. Spampinato used the vibrator on S.W. and asked her “does it feel
good,” but she stopped because she was afraid she would hurt S.W. Transcript
at 66. S.W. then told Spampinato “this is done,” stood up, and went into the
bathroom. Id. at 65. Spampinato then hung up the phone with Townsend and
went to bed. S.W. became sick and threw up for the rest of the night, and she
woke up on the floor “laying face down in some puke” the next morning. Id.
[11] S.W. and C.S. left Spampinato’s house the next day, and Townsend returned
after they had left. Townsend asked Spampinato for the camcorder and also
why the girls were not there. When Spampinato told him the girls had gone
back to stay with S.W.’s brother, Townsend became angry and told her that she
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“didn’t do something right. That is was [her] fault they weren’t there.” Id. at
191-192. Townsend then took the camcorder to the bathroom and began
masturbating while he watched the video. After he finished watching the video,
Townsend called Spampinato upstairs and began yelling at her for not doing
“exactly what he told [her] to do” and told her that she “was a f--- up and
couldn’t do nothing right and he should have put a bullet in [her] head a long
time ago.” Id. at 193.
[12] On March 6, 2009, Spampinato’s other boyfriend, Gill, found the video made
with the camcorder and turned it over to Logansport Police Detective Brad
Miller. Detective Miller obtained a search warrant for Spampinato’s residence
on March 9, 2009, and during the search he located the vibrator used in the
video, as well as the receipt showing its purchase on December 22, 2008, and he
arrested Spampinato. About a week after Spampinato was arrested, Townsend
called one of his friends, William Ryan, and told Ryan about the video and that
he had “told the stupid b---- to get rid of the tape.” Id. at 152. Townsend also
stated he was concerned because S.W. could identify him.
[13] The State filed initial charges against Townsend on November 12, 2009, and on
January 24, 2011, the State filed an amended information charging Townsend
with Count I, conspiracy to commit child molestation as a class A felony;
Count II, conspiracy to commit sexual misconduct with a minor as a class B
felony; Count III, vicarious sexual gratification as a class B felony; Count IV,
conspiracy to commit child exploitation as a class C felony; Count V,
possession of child pornography as a class D felony; and Count VI, child
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solicitation as a class D felony. On January 26, 2011, the court commenced a
jury trial at which Townsend requested a separation of witnesses, and the court
granted his request and informed all in the courtroom that anyone present as a
possible witness was required to wait outside the courtroom until he or she was
called to testify.
[14] In its case in chief the State presented the testimony of S.W., C.S., Spampinato,
Detective Miller, Gill, and Ryan, each of whom testified consistent with the
foregoing. The court also admitted into evidence the video Spampinato made
using the camcorder. After the State had finished calling its witnesses,
Townsend requested that Ashley Jackson, who had been present in the
courtroom for almost the entire trial and was sitting on “the side [of] the
defendant,” be added to the witness list and be permitted to testify. Id. at 229.
The trial court denied the request because Jackson had violated the separation
of witnesses order and because she was not on a witness list, stating specifically
that “[t]ypically what would happen is I think I would allow you to do that
after a [sic] State an opportunity to continue its---to prepare for her, you know
take a recess or whatever, but I can’t under this circumstance.” Id. The court
then allowed Townsend to make an offer to prove what Jackson would state if
allowed to testify. Jackson testified that she was in jail with Spampinato and
that, between January 23 and March 18 of 2010, Spampinato told her on more
than one occasion that “in order to have her plea reduced . . . she would have to
bring [Townsend] down to make herself look better.” Id. at 231. Jackson
indicated that this was the first time she had told anyone involved in the case
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about this conversation. She also admitted she was attending the trial in
support of Townsend. The court again denied Townsend’s request to permit
Jackson to testify.
[15] On January 27, 2011, the jury found Townsend guilty of Count III, vicarious
sexual gratification as a Class B felony, and Count V, possession of child
pornography as a class D felony, and not guilty of the remaining charges. On
February 28, 2011, the court held a sentencing hearing and sentenced
Townsend to concurrent sentences of ten years on Count III and eighteen
months on Count V. On June 20, 2014, the court granted Townsend’s verified
motion for permission to file a belated notice of appeal, and this appeal ensued.
Discussion
I.
[16] The first issue is whether the evidence is sufficient to sustain Townsend’s
conviction of vicarious sexual gratification. When reviewing claims of
insufficiency of the evidence, we do not reweigh the evidence or judge the
credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g
denied. Rather, we look to the evidence and the reasonable inferences therefrom
that support the verdict. Id. We will affirm the conviction if there exists
evidence of probative value from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. Id.
[17] Ind. Code § 35-42-4-5 governs the crime of vicarious sexual gratification and
provided in part at the time of the offense as follows:
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A person eighteen (18) years of age or older who knowingly or
intentionally directs, aids, induces, or causes a child under the age of
sixteen (16) to:
*****
(3) engage in deviate sexual conduct with another person;
with intent to arouse or satisfy the sexual desires of a child or the older
person commits vicarious sexual gratification, a Class C felony.
However, the offense is a Class B felony if any child involved in the
offense is less than fourteen (14) years of age . . . .
Ind. Code § 35-42-4-5(b) (Supp. 2003) (subsequently amended by Pub. L. No.
158-2013, § 441 (eff. July 1, 2014)). The State alleged, under Count III, that
between December 24, 2008 and December 31, 2008 . . . Townsend, a
person of at least eighteen (18) years of age, did knowingly or
intentionally direct, aid, induce or cause S.W. (DOB 3/05/1995) a
child under the age of fourteen (14) to engage in deviate sexual
conduct with Amy Spampinato and C.S[.], with the intent to arouse or
satisfy the sexual desires of [] Townsend or the child . . . .
Appellant’s Appendix at 99. Ind. Code § 35-31.5-2-94 provides that “[d]eviate
sexual conduct means an act involving: (1) a sex organ of one (1) person and
the mouth or anus of another person; or (2) the penetration of the sex organ or
anus of a person by an object.” Thus, to convict Townsend of vicarious sexual
conduct as a class B felony, the State needed to prove that he knowingly or
intentionally directed, aided, induced, or caused S.W. to engage in deviate
sexual conduct with Spampinato or C.S. with the intent to arouse either his or
S.W.’s sexual desires.
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[18] Townsend argues that that State did not present evidence that S.W. engaged in
deviate sexual conduct, asserting that “[t]here was no evidence of oral sex or
actual penetration of S.W. by an object.” Appellant’s Brief at 12. He maintains
that assuming S.W. did engage in deviate sexual conduct, “Townsend’s
conduct was not the cause of S.W.’s deviate acts.” Id. He argues specifically
that if his “conduct caused S.W. to engage in deviate sexual conduct, he
committed the crime; if someone else’s conduct causes the sexual acts, he is not
guilty,” and cites to Micinski v. State, 487 N.E.2d 150, 154 (Ind. 1986), which
concerned a driver under the influence of alcohol who left the scene of an
accident resulting in bodily injury. Id. He asserts that “Spampinato directed
and caused the sexual activity on the evening of December 29, 2008 – not
[him],” and that although he “may have listened to Spampinato, S.W., and
C.S. engage in sexual acts by phone, [] listening to sexual acts with an
unfulfilled desire to participate is not the same as ‘directing, aiding, inducing, or
causing’ sexual acts.” Id. at 12-13. Townsend also argues that “there was no
evidence that [he] actually knew that S.W. was personally engaging in deviate
sexual acts rather than just observing the sex acts of C.S. and Spampinato.” Id.
at 13. He further asserts that the rule of lenity compels this court to construe
Ind. Code § 35-42-4-5(b)(3) against the State, and that Spampinato’s testimony
is incredibly dubious.
[19] The State argues that “[a] finger is within the meaning of ‘an object’ for the
purposes of deviate sexual conduct.” Appellee’s Brief at 14 (citing Harwood v.
State, 555 N.E.2d 513, 515 (Ind. Ct. App. 1990), aff’d, 582 N.E.2d 359 (Ind.
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1991), reh’g denied). The State asserts that Spampinato’s testimony is not
incredibly dubious, noting that it was corroborated by both S.W. and C.S., as
well as the video which was admitted at trial. The State asserts that to the
extent Townsend suggests “he was not the cause of S.W.’s deviate sexual
conduct because he was not present when the conduct took place,” he “was
convicted of vicarious sexual gratification” and “did not need to personally
participate or even be present . . . to be guilty of directing, aiding, inducing, or
causing it to happen.” Id. at 15. The State also argues that, as the video
recording demonstrates, “Townsend talked with S.W. on the phone several
times during the night” and that his suggestion on appeal that he did not know
that S.W. engaged in deviate sexual conduct is an invitation for this court to
reweigh the evidence. Id. at 16.
[20] To the extent Townsend asserts that the incredible dubiosity rule requires
reversal of his convictions, we note that the rule applies only in very narrow
circumstances. See Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). The rule is
expressed as follows:
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.
Id.
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[21] Townsend suggests that Spampinato “gave conflicting answers on whether
Townsend knew the ages [sic] of S.W.” between her prior statement and her
testimony at trial and that her testimony is incredibly dubious because her
testimony was the result of a negotiated plea. Such arguments, however, are
issues of witness credibility. The function of weighing witness credibility lies
with the trier of fact, not this court. Whited v. State, 645 N.E.2d 1138, 1141
(Ind. Ct. App. 1995). We cannot reweigh the evidence or judge the credibility
of the witnesses. See Jordan, 656 N.E.2d at 817. We also observe that in
addition to the testimony of Spampinato, the State presented the testimony of
S.W. and C.S., as well as the testimony of Spampinato’s ex-boyfriend Lawrence
Gill, Townsend’s friend William Ryan, and Detective Miller. Further, the State
admitted into evidence a video depicting the sexual acts and testimony that
Townsend was on the phone while such acts occurred. During his testimony,
Townsend did not deny that he was on the phone during the filming of the
video. We cannot say that the incredible dubiosity rule applies to his case.
[22] Moreover, the State presented evidence that Townsend, after overhearing on
the phone that C.S. was bi-sexual, told Spampinato to “work something out,”
specifically directing her “to set up to have a threesome with the girls and to
satisfy them until he got home,” and to “perform sex acts on them that would
make them happy so that they would stay there until he got there.” Transcript
at 180-181. He specifically ordered Spampinato to do what she could to keep
the girls at her house “or else,” and he spoke with both S.W. and C.S. while the
sexual acts were occurring. Id. at 181. Townsend told S.W. that he wished he
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could be there with them, and he told Spampinato “exactly what he wanted
[her] to do” to the girls, including performing oral sex on the girls and to use the
vibrator he had recently purchased for her on them. Id. at 190.
[23] Also, the video admitted into evidence demonstrates that while S.W. was
engaging in deviate sexual conduct by placing the vibrator in C.S.’s vagina,
Townsend was speaking with Spampinato and heard what was transpiring in
the bedroom. Afterward, S.W. was speaking to Townsend on the phone and
laughed and told him “I’m friggin’ scared.” Exhibit 2b at 9:00-9:05. The next
day, Townsend returned to Spampinato’s house, retrieved the camcorder, and
took it into the bathroom to view the video while masturbating. Based upon
the record, we conclude that the inferences made by the jury that Townsend
knowingly or intentionally directed, aided, induced, or caused S.W. to engage
in deviate sexual conduct with Spampinato or C.S. with the intent to arouse
either his or S.W.’s sexual desires were not unreasonable and that evidence of
probative value exists from which the jury could have found beyond a
reasonable doubt that Townsend committed vicarious sexual gratification.
II.
[24] The next issue is whether Townsend’s right to compulsory process was violated
when the trial court excluded a witness from testifying. The Sixth Amendment
to the United States Constitution “guarantees a defendant the right to present
witnesses on his behalf.” Farris v. State, 818 N.E.2d 63, 69 (Ind. Ct. App. 2004),
trans. denied. However, “while the right to present witnesses is of the utmost
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importance, it is not absolute.” Id. (quoting Roach v. State, 695 N.E.2d 934, 939
(Ind. 1998), aff’d on reh’g, 711 N.E.2d 1237 (Ind. 1999)). Trial courts “have the
discretion to exclude a belatedly disclosed witness when there is evidence of bad
faith on the part of counsel or a showing of substantial prejudice to the State.”
Id. (quoting Williams v. State, 714 N.E.2d 644, 651 (Ind. 1999), cert. denied, 528
U.S. 1170, 120 S. Ct. 1195 (2000)). In light “of a defendant’s right to
compulsory process under the federal and state constitutions, there is a strong
presumption to allow the testimony of even late-disclosed witnesses.” Id.
[25] Townsend argues that “Jackson’s testimony was exculpatory, unique, and
critical to the case.” Appellant’s Brief at 15. The State asserts that the issue is
“more aptly considered as the trial court ruling on its separation-of-witnesses
order” and that such determinations are “wholly within the discretion of the
trial court.” Appellee’s Brief at 17 (citing Myers v. State, 887 N.E.2d 170, 190
(Ind. Ct. App. 2008), reh’g denied, trans. denied). The State argues that
“[b]ecause there is no meaningful way to measure the harmfulness of the
education[al] value to a witness who sits through the other witnesses’ testimony
before taking the stand, prejudice is presumed when a violation of a separation-
of-witnesses order occurs . . . .” Id. at 17-18 (quoting Myers, 887 N.E.2d at 190).
The State contends that Townsend cannot overcome the presumption here
where Jackson “only decided to approach the defense to say she was willing to
testify after being present for nearly the entire trial.” Id. at 18. The State also
argues that, “even if analyzed as an issue of compulsory process, the trial court
did not arbitrarily deny Townsend’s request,” and notes that the court took
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reasonable steps to decide whether to allow Jackson to testify by allowing
Townsend to make an offer to prove. Id. The State further argues that
Jackson’s testimony was not material to Townsend’s defense and would not
have created reasonable doubt, noting specifically that the jury knew that
Spampinato had received a plea deal in return for her testimony at Townsend’s
trial and that Jackson was not a credible witness. The State finally suggests that
any error by the court in excluding Jackson’s testimony was harmless, noting
that the State presented multiple witnesses and a video of the events.
[26] In Farris, on the last day of trial defendant Farris sought to have Floyd Meeks,
who had not been listed on either party’s witness list, testify. 818 N.E.2d at 68.
Meeks had been listed in the charging information as a material witness. Id.
He also had been present in the courtroom throughout the trial to that point.
Id. “The State objected to Meeks testifying, arguing that his testimony was
irrelevant and that it would violate the separation of witnesses order that had
been in place since the beginning of the trial.” Id. Farris made an offer to prove
in which Farris’s counsel stated that she had learned that individuals in the
courtroom had overheard Meeks making previously-unknown statements
which were material to Farris’s defense. Id. The court refused to allow Meeks
to testify both because he had not been on Farris’s witness list and he had been
present during the trial while a separation of witnesses order was in effect. Id.
at 68-69.
[27] This court concluded that the trial court abused its discretion on both grounds.
First, regarding the court’s ruling to exclude Meeks’s testimony for failure to list
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him as a witness, this court noted that “[t]here was no evidence presented at
trial that Farris’ counsel had acted in bad faith” and that counsel “indicated that
she had called Meeks but had been unable to find him.” Id. at 69. The court
also observed that Meeks’s testimony would not have substantially prejudiced
the State and that indeed the State had named Meeks as a material witness in its
charging information. Id. We noted: “Even if Meeks’ testimony had
prejudiced the State in some way, a continuance, rather than exclusion, would
have been the appropriate remedy.” Id. Regarding the separation of witnesses
order, the court noted long-standing Indiana Supreme Court precedent that it is
“an abuse of discretion to refuse to permit the testimony of a witness due to a
violation of a separation of witnesses order if the party seeking to call the
witness is without fault in the violation.” Id. (quoting Jiosa v. State, 755 N.E.2d
605, 607 (Ind. 2001)). The court held that the violation was not Farris’s fault
because Meeks was not listed as a witness and that Farris’s counsel had been
unable to locate Meeks and did not know what he looked like, and that
accordingly the trial court abused its discretion. Id. The State also argued that
Meeks’s testimony was irrelevant, but this court disagreed and concluded that
relevancy would not have been a proper ground for excluding Meeks from
testifying. Id.
[28] Here, similarly, we find that the court abused its discretion when it excluded
Jackson’s testimony. After Townsend asked that Jackson be allowed to testify,
the court denied his request, ruling that “[t]ypically what would happen is I
think I would allow you to do that after a [sic] State an opportunity to continue
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its---to prepare for her, you know take a recess or whatever, but I can’t under
this circumstance.” Transcript at 229. Just as in Farris, Jackson was not listed
as a witness. Also, the level of fault on the part of Townsend’s counsel is even
less here where Townsend’s counsel was not aware of the testimony Jackson
could provide until that day. The record reveals that the separation of witnesses
violation was the reason the court did not allow Jackson to testify and offered
the State a continuance beforehand, and it did not make a finding of bad faith
or substantial prejudice to the State. To the extent the State argues that
Jackson’s testimony would not have been “material to the defense,” Appellee’s
Brief at 19, we note that her testimony would have challenged the credibility of
Spampinato and was thus relevant. Although Jackson’s testimony may have
been of questionable credibility, it does not appear that the court excluded her
testimony because its prejudicial impact outweighed its probative value. We
therefore conclude it was an abuse of the court’s discretion to exclude Jackson’s
testimony.
[29] This does not end our analysis, however. “[W]e will find an error in the
exclusion of evidence harmless if its probable impact on the jury, in light of all
of the evidence in the case, is sufficiently minor so as not to affect the
defendant’s substantial rights.” Farris, 818 N.E.2d at 70 (quoting Williams, 714
N.E.2d at 652). We find that the trial court’s exclusion of Jackson was
harmless. Even assuming that the jury would have considered Jackson a
credible witness, which is questionable in light of her impeachable criminal
history and the fact that she was hardly an objective witness, at the trial
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Spampinato testified that she had taken a plea agreement and was being housed
in the Department of Correction. She indicated that as part of the plea
agreement she had “to come in here and testify in this case” and that she was
telling the truth at the trial. Transcript at 215. Also, as noted, the video
admitted into evidence depicted S.W. engaging in deviate sexual conduct by
inserting the vibrator in C.S.’s vagina, and while S.W. was doing so
Spampinato was speaking with Townsend and stated: “Right now she’s
playing. Yea she’s using my toy on [C.S.].” Exhibit 2b at 7:05-7:15. The
prosecutor in her closing argument specifically pointed to this conduct when
she argued that the jury should convict Townsend for vicarious sexual
gratification, stating:
[W]hen you are watching and you listen very carefully you can see
how not only is the phone being passed around but people are talking.
. . . [T]hey are talking back and forth not only to each other but to
[Townsend] on the phone. . . . [T]here is a portion of the tape where
[Spampinato] is on the phone. [S.W.] is using the vibrator on [C.S.]
and [Spampinato] is describing to [Townsend] on the phone that [C.S.]
and [S.W.] are playing with her toy. She called it a toy at that point
and that there are a number of comments at that point that are being
made to [Townsend] about the fact that [S.W.] is using---what [S.W.]
and [C.S.] are doing at this time and you can also hear in the tape and
in the video people are directing other people what to do. The whole
time [Townsend] is on the phone and I believe based on the evidence
that you’ve seen you can infer that he was a big part of this directing,
aiding, inducing, or causing these events to happen.
Transcript at 320-321.
[30] While the trial court abused its discretion by excluding Jackson from testifying,
this error was harmless. See Farris, 818 N.E.2d at 70 (holding that although the
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trial court abused its discretion in excluding Meeks from testifying, such error
was harmless because the evidence presented against the defendant was strong,
and the accounts were supported by a surveillance video).
Conclusion
[31] For the foregoing reasons, we affirm Townsend’s convictions for vicarious
sexual gratification as a class B felony and possession of child pornography as a
class D felony.
[32] Affirmed.
Bailey, J., and Robb, J., concur.
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