Michael W. Willhoite v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 17 2019, 10:40 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone IV Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Sierra A. Murray
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael W. Willhoite, October 17, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-158
v. Appeal from the
Madison Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff. Thomas Newman, Jr.
Trial Court Cause No.
48C03-1601-F1-144
Kirsch, Judge.
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[1] Following a jury trial, Michael W. Willhoite (“Willhoite”) was convicted of
child molesting1 as a Level 1 felony and incest2 as a Level 4 felony. The trial
court sentenced him to twenty-five years for child molesting and a concurrent
six years for incest for an aggregate sentence of twenty-five years. On appeal,
Willhoite raises the following restated issues:
I. Whether the trial court abused its discretion when it
denied Willhoite’s motion for continuance on the eve of
trial;
II. Whether statements made by the prosecutor during closing
argument—statements to which Willhoite raised no
objection at trial—constituted prosecutorial misconduct,
the cumulative effect of which rose to the level of
fundamental error; and
III. Whether Willhoite’s convictions for child molesting and
incest violated Indiana’s prohibition against double
jeopardy.
[2] We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[3] Willhoite and S.Y. were married and had three daughters, J.W., T.W., and
S.W. In 2015, after Willhoite and S.Y.’s marriage ended, Willhoite and his
1
See Ind. Code § 35-42-4-3(a)(1).
2
See Ind. Code § 35-46-1-3.
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daughters lived together in a home in Anderson, Indiana, with Willhoite’s
mother. Willhoite slept in a makeshift bedroom in the attic. The girls
occasionally slept with Willhoite in his bed, sometimes all together, and other
times just one of the girls slept with him. Once, when T.W. was alone in bed
with Willhoite, he put his hand on her thigh and touched both the inside and
outside of her leg. Tr. Vol. III at 19, 22, 30-31. T.W. pushed Willhoite’s hand
off. When he put his hand back on T.W.’s thigh, she went “to the bottom of
the bed” to sleep. Id. at 19. T.W. did not tell anyone about the incident. Id. at
31.
[4] Sometime after December 25, 2015, when she was nine years old, T.W. was
sleeping on her side in Willhoite’s bed and was awakened when he “put[] his
penis in [her] butt.” Id. at 13-14. Willhoite was “moving” his penis by “pulling
it out and putting it back in”; T.W. estimated that Willhoite continued this
motion for one to two minutes. Id. at 14, 15. T.W. said that while Willhoite
initially made no sound, he later “started to moan.” Id. at 15. T.W. began to
turn around because she “didn’t know what he was gonna do next” and saw
Willhoite “pulling up his pants the rest of the way.” Id. at 16. T.W. sat up and
asked, “[D]ad, can I use the restroom?” Id. at 17. When Willhoite said,
“[Y]eah, you don’t have to ask,” T.W. pulled up her pants and “went
downstairs to the restroom to think about what [she] was gonna do because
[she] was scared.” Id.[5] Leaving the bathroom, T.W. went into her grandmother’s bedroom, where her
grandmother was already sleeping. T.W. used tote bags and blankets to cover
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herself and fell asleep on her grandmother’s bedroom floor. Id. at 18. T.W.’s
grandmother did not wake up, and T.W. left the room the next morning
without anyone seeing her. Id. Shortly thereafter, T.W. told her older sister,
J.W., what had happened. T.W. explained, that J.W. “was always there for
[her,] and [T.W.] knew it was good if [she] told somebody.” Id. at 20. J.W.
said that, when T.W. told her about the incident, T.W. was “afraid and like
scared,” and she was “very emotional,” which was not normal for T.W. Id. at
64. T.W. told J.W. not to tell anyone about the incident, but J.W. thought she
should tell someone, so she told their aunt. Id. at 65. The aunt subsequently
informed T.W.’s mother, S.Y. Soon thereafter, T.W. and her sisters were
interviewed at Kids Talk, “a forensic interview location” with a specialty in
interviewing child victims. Id. at 20, 107. During the interview, T.W. related
the same details of the sexual assault.
[6] After the interview, S.Y. took T.W. to an Anderson hospital for a sexual assault
exam. Tr. Vol. III at 71. On the way there, S.Y. asked T.W. what Willhoite
had done. Id. Although T.W. was scared and crying, she told her mother how
Willhoite had sexually assaulted her. Id. The results of T.W.’s medical
examination were normal; the exam found no physical injuries or DNA
present. On January 25, 2016, Willhoite, who was at that time thirty-one years
old, was arrested and charged with Level 1 felony child molesting and Level 4
felony incest. Id. at 113.
[7] Willhoite’s trial was initially set for May 24, 2016. The trial court granted
numerous continuances during the next two and a half years before trial. At
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least four of those continuances were requested by Willhoite. On the eve of
what was then a November 26, 2018 trial date, the trial was continued to
November 28, 2018, by agreement of both parties. Appellant’s App. Vol. II at 17.
On November 26, 2018, defense counsel, David Alger (“Alger”), filed an
amended motion for continuance, arguing that his father was ill, and his illness
would prevent Alger from giving the trial his full attention. Id. at 153. The trial
court denied that motion. Id. at 17. On November 28, 2018, after defense
counsel had engaged in extensive voir dire, and a jury was empaneled, Alger
renewed his motion for a continuance, which the trial court again denied. Tr.
Vol. II at 242.
[8] A jury trial was held November 28 and 29, 2018. Willhoite’s defense during
trial was that T.W. had fabricated the story about him because she was mad at
him and jealous of her sisters. To counter the fact that T.W.’s physical
examination showed no sign of injury, the State offered the testimony of Holly
Renz (“Renz”), a sexual assault nurse examiner employed by Community
Hospital in Anderson. Renz explained the examination procedure and said,
“[A]bout ninety-five percent (95%) of [the] time we see normal exams.” Tr.
Vol. III at 45. Renz said that one of the reasons for a normal exam is “the
perpetrator . . . may groom the child in such a way that there is no injury.” Id.
at 46. Furthermore, there is delayed disclosure because “children generally are
told not to tell and they don’t,” and injuries may not show because “our bodies
can heal very quickly.” Id. at 45-46.
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[9] During closing argument, defense counsel suggested that Willhoite could not be
the monster that T.W. had claimed; otherwise he would have abused his other
daughters and would have sexually abused T.W. more than once. Tr. Vol. III at
151-52. The prosecutor responded, in closing argument, that he was not asking
the jury to call Willhoite a monster; he only wanted them to find that he is a
“molester, cause he is, cause that’s what he did.” Id. at 156. Suggesting an
alternate theory as to why T.W. might be the only victim, the prosecutor said:
I thank God that he didn’t do this to the other girls. But I think
had he gotten away with this he probably would have. I think
T.[W.] saved her sisters. . . . Because there’s a grooming
behavior. He started with just sleeping with [T.W.], putting his
arm around her. He told you he’d snuggle, spoon. Put his hand
on a thigh. She didn’t like it so she moved it, he put it back.
Waited. When she didn’t tell anyone he went further. That’s
grooming.
Id. at 156. Willhoite did not object. Id.[10] At the conclusion of trial, the jury found Willhoite guilty of both child
molesting and incest, and the trial court sentenced him to twenty-five years for
the Level 1 felony child molesting conviction and a concurrent six-year
sentence for the Level 4 felony incest conviction, for an aggregate sentence of
twenty-five years. Willhoite now appeals.
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Discussion and Decision
I. Denial of Continuance
[11] Willhoite contends that the trial court abused its discretion when it denied his
request for a continuance on the eve of trial. As our Supreme Court noted in
Gibson v. State:
Courts are generally reluctant to grant continuances in criminal
cases merely to allow for additional preparation. But a defendant
is statutorily entitled to a continuance where there is an absence
of material evidence, absence of a material witness, or illness of
the defendant, and the specially enumerated statutory criteria are
satisfied. If none of those conditions are present, however, a trial
court has wide discretion to deny a motion to continue. We will
only find an abuse of that discretion where a defendant was
prejudiced as a result of not getting a continuance. To
demonstrate such prejudice, a party must make a specific
showing as to how the additional time requested would have
aided counsel.
43 N.E.3d 231, 235-36 (Ind. 2015) (internal citations and quotations omitted),
cert. denied, 137 S. Ct. 54 (2016). In other words, “continuances . . . will be
granted only in the furtherance of justice on a showing of good cause.” Harbert
v. State, 51 N.E.3d 267, 279 (Ind. Ct. App. 2016), trans. denied. “‘There is a
strong presumption that the trial court properly exercised its discretion.’”
Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018) (quoting Warner v. State, 773
N.E.2d 239, 247 (Ind. 2002)). Here, Willhoite was not statutorily entitled to a
continuance.
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[12] Willhoite’s trial was initially set for May 24, 2016. During the two-and-a-half-
year period between Willhoite’s arrest and his November 28, 2018 trial, the trial
court reset his trial date nine times, twice due to congestion of the court, three
times due to joint motions for continuance, and four times due to Willhoite’s
motions for continuance. Closer to trial, the trial court denied two of defense
counsel Alger’s motions for continuance, one filed on November 7, 2018
relating to the November 26, 2018 trial date and one filed on November 26,
2018 relating to the November 28, 2018 trial date.3 Appellant’s App. Vol. II at 17,
53-54, 59-61, 84-86, 88-89, 118-120, 125-26.
[13] In his November 26, 2018 amended motion, Alger asserted a continuance was
needed because: (1) he assists his mother in providing care to his father, who is
ninety-five years old and suffers from COPD and liver cancer; (2) just the
previous day, his father had lost the use of his legs, was less responsive, and was
hospitalized; (3) he would be spending each evening at his father’s bedside; and
(4) his “attention would be diverted from his representation of defendant.” Id.
at 153. The trial court denied Alger’s motion on November 27, 2018. On
November 28, 2018, following extensive voir dire and the empanelment of the
jury, Alger renewed his November 26 motion to continue trial. The State
objected, and the trial court responded, “Court denies the motion for
3
By agreement of the parties, the November 26, 2018 trial date was continued to November 28, 2018.
Appellant’s App. Vol. II at 17.
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continuance. I will be happy to be reconsidered [sic] if other issues—other
exigencies happen.” Id. at 242-43.
[14] Willhoite contends he “suffered prejudice because the denial of the continuance
meant he was represented by an attorney who was distracted by the terminal
illness of his father and who was spending his evenings with his hospitalized
father.” Appellant’s Br. at 8. However, Willhoite did not “make a specific
showing as to how the additional time requested would have aided counsel.”
Gibson, 43 N.E.3d at 236. Willhoite did not introduce any evidence that Alger
was distracted at trial. In fact, the transcript reveals that Alger was engaged,
attentive, asked appropriate questions during voir dire and trial, effectively
cross-examined the State’s witnesses, presented an affirmative defense, and
objected when necessary. Here, while Willhoite was charged with two felonies,
the evidence for the charges was the same for both, Willhoite’s trial was held
more than two and a half years after he was charged, Willhoite’s trial date was
rescheduled about nine times, and Willhoite, himself, was granted four
continuances. Thus, Willhoite was not prejudiced by the denial of the
continuance.
[15] We sympathize with an attorney who is dealing with both personal issues and
the responsibility of trying a criminal case; however, a continuance is for the
protection of a defendant, and in the absence of prejudice, the trial court does
not abuse its discretion when it denies a motion for a continuance. See Elmore v.
State, 657 N.E.2d 1216, 1218-19 (Ind. 1995) (denial of continuance upheld in
case involving five felony charges, when the attorney had only one month to
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prepare); Tharpe v. State, 955 N.E.2d 836, 844 (Ind. Ct. App. 2011) (no abuse of
discretion in denying continuance of defendant’s case, which consisted of one
felony count and had been ongoing for over a year), trans. denied; Schmid v. State,
804 N.E.2d 174, 178 (Ind. Ct. App. 2004) (no abuse of discretion when court
denied continuance in murder case because the case “had been pending for
quite some time” and two months was “adequate time [for counsel] to
prepare.”), trans. denied. Considering this precedent, we cannot say the trial
court abused its discretion when it denied Willhoite’s final motion for
continuance.
II. Closing Argument
[16] Willhoite next challenges his convictions on the grounds of prosecutorial
misconduct, citing the prosecutor’s statements during closing argument that
Willhoite groomed T.W. Willhoite argues that it was inappropriate for the
State to reference “grooming” because the concept was raised only once during
Renz’s testimony at trial. Appellant’s Br. at 10.
[17] When we review a claim of prosecutorial misconduct that was properly raised
in the trial court, “we determine (1) whether misconduct occurred, and if so, (2)
‘whether the misconduct, under all of the circumstances, placed the defendant
in a position of grave peril to which he or she would not have been subjected’
otherwise.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (quoting Cooper v.
State, 854 N.E.2d 831, 835 (Ind. 2006)). “A prosecutor has the duty to present
a persuasive final argument and thus placing a defendant in grave peril, by
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itself, is not misconduct.” Id. (citing Mahla v. State, 496 N.E.2d 568, 572 (Ind.
1986)). “‘Whether a prosecutor’s argument constitutes misconduct is measured
by reference to case law and the Rules of Professional Conduct. The gravity of
peril is measured by the probable persuasive effect of the misconduct on the
jury’s decision rather than the degree of impropriety of the conduct.’” Id.(quoting Cooper, 854 N.E.2d at 835 (citations omitted)). “To preserve a claim of
prosecutorial misconduct, the defendant must—at the time the alleged
misconduct occurs—request an admonishment to the jury, and if further relief is
desired, move for a mistrial.” Id. Here, Willhoite did not object to the State’s
reference to “grooming” in its closing argument.
[18] “Our standard of review is different where a claim of prosecutorial misconduct
has been procedurally defaulted for failure to properly raise the claim in the trial
court, that is, waived for failure to preserve the claim of error.” Id. “The
defendant must establish not only the grounds for prosecutorial misconduct but
must also establish that the prosecutorial misconduct constituted fundamental
error. Id. at 667-68. “Fundamental error is an extremely narrow exception to
the waiver rule where the defendant faces the heavy burden of showing that the
alleged errors are so prejudicial to the defendant’s rights as to ‘make a fair trial
impossible.’” Id. at 668 (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind.
2002)). In other words, to establish fundamental error, the defendant must
show that, under the circumstances, “the trial judge erred in not sua sponte
raising the issue because alleged errors (a) constitute clearly blatant violations of
basic and elementary principles of due process’ and (b) ‘present an undeniable
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and substantial potential for harm.” Id. (internal quotation marks omitted).
The element of such harm is not established by the fact of ultimate conviction
but rather “depends upon whether [the defendant’s] right to a fair trial was
detrimentally affected by the denial of procedural opportunities for the
ascertainment of truth to which he otherwise would have been entitled.” Id.(quoting Townsend v. State, 632 N.E.2d 727, 730 (Ind. 1994)).
[19] Our evaluation of fundamental error requires this court to look at the alleged
misconduct “in the context of all that happened and all relevant information
given to the jury—including evidence admitted at trial, closing argument, and
jury instructions—to determine whether the misconduct had such an
undeniable and substantial effect on the jury’s decision that a fair trial was
impossible.” Ryan, 9 N.E.3d at 668. At trial, Willhoite’s defense was that
T.W. concocted the story about the assault, either because she was jealous of
her sisters and hoped for attention or because she was mad at Willhoite. Tr.
Vol. III at 28-30. On cross-examination, defense counsel confirmed that T.W.
received no treatment at the hospital and that she had not told her grandmother
about the sexual assault. Id. at 32. Through this line of questioning, defense
counsel suggested that T.W.’s account of events was not credible. Id. at 32.
[20] During the State’s initial closing argument, the prosecutor said that T.W. had
not made up the story; she was not jealous of her sisters, and she was not mad
at Willhoite. Id. at 138. The prosecutor related that T.W.’s demeanor on the
stand was that of a young girl who is afraid and does not want to talk about the
assault. Id. The prosecutor then set forth the elements of the crimes and
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reviewed the testimony. The prosecutor explained that T.W. did not tell her
grandmother because T.W. did not think her grandmother would believe her.
Id. at 142. On the way to the hospital, T.W. shared with her mother the same
version of events surrounding the assault that she had shared with her sister and
Kids Talk. T.W.’s mother noticed that she was trembling but not talkative
during the physical examination. Id. at 146.
[21] During defense counsel’s closing argument, Alger told the jury that the case was
about the testimony of two people, Willhoite and T.W. Id. at 151.
Recognizing that there was no medical testimony or DNA that linked Willhoite
to the crime, defense counsel said that the hard thing about the case was that
one of them “has to be telling the truth and one has to be telling a lie.” Id.
If T.[W.] is telling the truth, Michael Willhoite is a monster. A
monster. You heard his testimony. Can you say beyond a
reasonable doubt that Michael Willhoite is a monster? Does he
appear to be a monster to you? Wouldn’t a monster be someone
who not only has violated and molested one of his daughters,
wouldn’t he have violated and molested another, both older and
younger? Wouldn’t he have violated and molested her more
than once? If you believe T.[W.], Michael Willhoite is a
monster. But nine (9) year old girls can also lie.
Id. at 151-52.
[22] In rebuttal, the prosecutor said:
I’m not gonna ask you to call him a monster cause it’s not our
job. I’m gonna ask you to find him a molester, cause he is, cause
that’s what he did. We talked a little bit about grooming. They
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said grooming is some—they don’t things [sic]. And he said if he
would have done this he would have done it to the other two (2)
girls. I thank God that he didn’t do this to the other girls. But I
think had he gotten away with this he probably would have. I
think T.[W.] saved her sisters. How do I—Why do I think this?
Because there’s a grooming behavior. He started with just
sleeping with [T.W.], putting his arm around her. He told you
he’d snuggle, spoon. Put his hand on a thigh. She didn’t like it
so she moved it, he put it back. Waited. When she didn’t tell
anyone he went further. That’s grooming.
Id. at 156.
[23] During the State’s initial closing argument, the State made no mention that
Willhoite was grooming T.W. Instead, the State focused on the elements that it
had to prove to convict Willhoite of child molesting and incest. Id. at 137-51.
It was Alger who suggested to the jury that the case could be decided on the one
issue of whether T.W. lied. Id. at 152. To cast doubt on T.W.’s testimony,
defense counsel suggested for the first time that Willhoite was not the monster
he seemed because he had not molested his other daughters and he had
molested T.W. only once.
[24] Read in context, the prosecutor’s comments regarding grooming behavior arose
from Renz’s testimony at trial, when she said that one of the reasons for a
normal exam is the perpetrator “may groom the child in such a way that there
is no injury.” Tr. Vol. III at 46. Furthermore, the prosecutor was making a
direct rebuttal to defense counsel’s implication that, because Willhoite had not
molested his other daughters, he must be innocent of having molested T.W.
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Willhoite slept with T.W. on numerous occasions, and prior to this incident, he
had put his hand on the inside and outside of T.W.’s thigh even after she told
Willhoite to stop. T.W. told no one about that incident. The State’s comments
offered an alternative theory as to why T.W. could be telling the truth and, yet,
still be the sole victim. It remained within the purview of the jury to determine
who was telling the truth.
[25] To prove fundamental error Willhoite faced the heavy burden of showing that
the alleged errors were so prejudicial as to make a fair trial impossible. Ryan, 9
N.E.3d at 668. Based on the evidence before us, we cannot say that the
prosecutor’s comments amounted to prosecutorial misconduct, let alone
misconduct that constituted fundamental error. The State did not commit
misconduct during its rebuttal to defense counsel’s closing argument.
III. Double Jeopardy
[26] Finally, Willhoite contends that because he committed only one act of sexual
misconduct against T.W., his convictions for Level 1 felony child molesting and
Level 4 felony incest violated the Indiana prohibition against double jeopardy.
Appellant’s Br. at 12. The State agrees that Willhoite’s convictions for child
molesting and incest cannot both stand. Appellee’s Br. at 14.
[27] The Indiana Double Jeopardy Clause, Article 1, Section 14 of the Indiana
Constitution, provides, “No person shall be put in jeopardy twice for the same
offense.” “‘[T]wo or more offenses are the “same offense” in violation of
Article I, Section 14 of the Indiana Constitution, if, with respect to either the
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statutory elements of the challenged crimes or the actual evidence used to
convict, the essential elements of one challenged offense also establish the
essential elements of another challenged offense.’” Howell v. State, 97 N.E.3d
253, 263 (Ind. Ct. App. 2018) (quoting Richardson v. State, 717 N.E.2d 32, 49
(Ind. 1999)), trans. denied.
[28] Willhoite’s double jeopardy challenge is based on the actual evidence used to
convict him. Appellant’s Br. at 12. Under the “actual evidence” test, the actual
evidence presented at trial is examined to determine whether each challenged
offense was established by separate and distinct facts. Howell, 97 N.E.3d at 264.
The State agrees that “[t]here was a reasonable possibility that the jury used the
same facts to find [Willhoite] guilty of child molesting and incest because the
evidence established only one act of sexual misconduct.” Appellee’s Br. at 15
(citing Tr. Vol. III at 13-14, 18).
[29] When a double jeopardy violation has occurred, the “reviewing court may
remedy the violation by reducing either conviction to a less serious form of the
same offense if doing so will eliminate the violation.” Thompson v. State, 82
N.E.3d 376, 383 (Ind. Ct. App. 2017) (citing Richardson, 717 N.E.2d at 54),
trans. denied. However, if doing so will not eliminate the violation, one of the
convictions must be vacated. Id. Reducing either of Willhoite’s convictions
will not eliminate the double jeopardy violation, so we must vacate his
conviction for Level 4 felony incest since it is the conviction with a lesser penal
consequence. See Richardson v. State, 717 N.E.2d 32, 55 (Ind. 1999) (when two
convictions cannot stand, the conviction with the less severe penal
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consequences should be vacated). Vacating this conviction and the
corresponding sentence does not affect Willhoite’s aggregate twenty-five-year
sentence because the sentences for Level 1 felony child molesting and Level 4
felony incest were ordered to run concurrently.
[30] In conclusion, we find that the trial court did not abuse its discretion when it
denied Willhoite’s motion for continuance on the eve of trial. We also find that
the State did not commit fundamental error or deprive Willhoite of a fair trial
when the prosecutor referenced “grooming” in her closing argument. Finally,
because Willhoite’s convictions for both Level 1 felony child molesting and
Level 4 felony incest violate the double jeopardy prohibition, we affirm his
conviction for child molesting and reverse his conviction for incest and remand
to the trial court to vacate that conviction. Recognizing that Willhoite’s
sentences were to be served concurrently, vacating the incest conviction does
not alter Willhoite’s aggregate sentence of twenty-five years.
[31] Affirmed in part, reversed in part, and remanded with instructions.
Baker, J., and Crone, J., concur.
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