Adam Voegel v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D), Jul 10 2013, 5:33 am
this 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:
ELLEN M. O’CONNOR GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
GARY R. ROM
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ADAM VOEGEL, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1210-CR-502
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Kurt M. Eisgruber, Judge
Cause No. 49G01-1110-FA-73946
July 10, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Adam Voegel (“Voegel”) was convicted after a jury trial of two counts of Child
Molesting, as Class A felonies1; two counts of Child Molesting, as Class C felonies2; two
counts of Child Solicitation, as Class D felonies3; one count of Dissemination of Matter
Harmful to Minors, as a Class D felony4; and two counts of Obscene Performance, as Class A
misdemeanors.5 He was sentenced to an aggregate term of imprisonment of thirty-eight
years, and now appeals.
We affirm.
Issues
Voegel presents two issues for our review, which we restate as:
I. Whether the trial court abused its discretion when it admitted into
evidence the contents of his interview with police because his
statements were coerced, despite his voluntary waiver of Miranda
rights; and
II. Whether the trial court abused its discretion when it excluded from
evidence information concerning the prior sexual conduct of one of two
victims.
Facts and Procedural History
During the summer of 2011, Voegel lived with his domestic partner, Jarrod Bertram
(“Bertram”), in Indianapolis. Throughout the course of the summer, Bertram’s nephews,
1
Ind. Code § 35-42-4-3(a).
2
I.C. § 35-42-4-3(b).
3
I.C. § 35-42-4-6.
4
I.C. § 35-49-3-3.
5
I.C. § 35-49-3-2.
2
Ch.B., Cl.B., and Co.B., stayed in the house overnight on numerous occasions. Co.B. in
particular was very fond of Bertram.
At some point during the summer, Co.B. fell asleep on the living room couch. When
he woke up, Voegel had placed his hand on Co.B.’s penis and had placed Co.B.’s hand on his
penis. Co.B. pretended to remain asleep during this incident.
Later that summer, Voegel showed Co.B. several pornographic videos. Voegel also
fondled Co.B. or had Co.B. masturbate on several occasions, twice had Co.B. engage in anal
sex with him, and once had Co.B. perform oral sex upon him. On one occasion when Voegel
was watching Co.B. masturbate, Ch.B. entered the room, and Voegel eventually persuaded
Ch.B. to masturbate until Ch.B. ejaculated.
On October 11, 2011, Co.B. informed a school guidance counselor that he had been
molested by Voegel. This resulted in forensic interviews of Co.B. and Ch.B., and led to a
police investigation.
On October 14, 2011, Indianapolis Marion County Police Sergeant Jan Faber
(“Sergeant Faber”), a detective in the child abuse unit, conducted an interview with Voegel.
Voegel signed a waiver of his Miranda rights at the beginning of the interview. Voegel
informed Sergeant Faber repeatedly that he suffered from bipolar disorder but had not taken
prescribed medication for several months due to unaffordability after a job loss. Sergeant
Faber did not detect any impairment in Voegel’s capacity to waive his rights or provide
cogent information, and continued the interview. Eventually, Voegel admitted to committing
several criminal acts as to Co.B. and Ch.B. At the end of the interview, Sergeant Faber
3
arrested Voegel.
On October 19, 2011, Voegel was charged with four counts of Child Molesting, as
Class A felonies; five counts of Child Molesting, as Class C felonies; two counts of Obscene
Performance, as Class D felonies; two counts of Child Solicitation, as Class D felonies; and
two counts of Dissemination of Matter Harmful to Minors, as Class D felonies.
On May 31, 2012, Voegel filed a motion to suppress evidence, which sought a ruling
that would exclude from evidence the contents of his statements to Sergeant Faber during his
interview on October 14, 2011. In his motion and during the June 29, 2012 hearing on the
motion, Voegel contended that though he properly waived his Miranda rights, his statements
admitting to criminal conduct as to Co.B. and Ch.B. were not voluntarily given because he
was suffering from unmedicated bipolar disorder, depression, and anxiety. Voegel argued
that Sergeant Faber took advantage of these conditions and his isolation from Bertram to
obtain a coerced confession. On July 16, 2012, the trial court denied the motion to suppress.
During an August 16, 2012 hearing on motions in limine, Voegel informed the trial
court that he intended to elicit testimony from Co.B. concerning a prior incident of
molestation that had been perpetrated by another individual in Hendricks County. The trial
court ultimately denied Voegel’s in limine request for a ruling permitting him to elicit such
testimony, and instead ruled that Voegel could introduce as an offer of proof court records as
evidence of the prior molestation.
A jury trial was conducted from August 20, 2012 to August 22, 2012. At its
conclusion, the jury found Voegel guilty of two counts of Child Molesting, as Class A
4
felonies; two counts of Child Molesting, as Class C felonies; two counts of Child
Solicitation, as Class D felonies; one count of Dissemination of Matter Harmful to a Minor,
as a Class D felony; and two counts of Obscene Performance, as Class A misdemeanors. A
sentencing hearing was conducted on September 12, 2012, at the conclusion of which Voegel
was sentenced to an aggregate term of imprisonment of thirty-eight years.
This appeal ensued.
Discussion and Decision
Voluntariness of Voegel’s Confession
Voegel first contends that the trial court abused its discretion when it admitted into
evidence the incriminating statements he made during his interview with Sergeant Faber. We
review the trial court’s rulings on the admissibility of evidence for an abuse of discretion,
which occurs when the court’s decision is contrary to the logic and effect of the facts and
circumstances before it. Kelley v. State, 825 N.E.2d 420, 424 (Ind. Ct. App. 2005). “When
reviewing a challenge to the trial court’s decision, we examine the record for substantial,
probative evidence of voluntariness; we do not reweigh the evidence.” Horan v. State, 682
N.E.2d 502, 510 (Ind. 1997).
Where, as here, a defendant challenges the admissibility of his confession, the State
must prove beyond a reasonable doubt that the giving of the confession was voluntary.
Jackson v. State, 735 N.E.2d 1146, 1153 (Ind. 2000). Upon appellate review of a trial court’s
decision to admit a confession into evidence, we look to the totality of the circumstances
surrounding the defendant’s confession. Id. Our inquiry focuses on whether the confession
5
was given freely and voluntarily and was not induced by violence, threats, promises, or other
improper influences, and we will uphold the admission of a confession into evidence if there
is substantial evidence of probative value to support the trial court’s decision. Id. at 1153-54.
“Promises of leniency render a statement involuntary, but vague statements that the defendant
benefits by cooperating and telling the real story do not constitute sufficient promises.”
Fields v. State, 679 N.E.2d 1315, 1320 (Ind. 1997).
While the intelligence, education, and mental capacity of the defendant are among the
factors to be considered in determining whether a confession is admissible, lower intelligence
or education or mental illness alone are not enough to render a confession involuntary and
therefore inadmissible. Jackson, 735 N.E.2d at 1154. Rather, there must be some police
misconduct associated with obtaining the confession before there is any “‘basis for
concluding that any state actor has deprived a defendant of due process of law.’” Id. (quoting
Rhodes v. State, 698 N.E.2d 304, 308 (Ind. 1998)). Thus, absent police conduct with a
causal connection to the confession, there is no basis for concluding that a confession was
not voluntarily given. Id.Here, Voegel points to his relative lack of education and mental illness as informing
the circumstances of his confession during his interview with Sergeant Faber. Voegel also
points to exchanges between him and Sergeant Faber during the interview, where Sergeant
Faber made what Voegel admits were “vague” promises of help. Fields, 679 N.E.2d at 1320;
Appellant’s Br. at 16. Voegel nevertheless insists that “[h]is will was overborne” because he
“needed his partner … but could not leave the arena until the game was over,” and thus his
6
confession was involuntary under the totality of the circumstances. (Appellant’s Br. at 16.)
We cannot agree. To the extent that Voegel’s argument seeks that we reweigh the
evidence before the trial court, we decline his invitation to do so. See Horan, 682 N.E.2d at
510.
Under the relevant case law, our inquiry centers on whether police misconduct is the
cause of a defendant’s waiver of Miranda rights or confession, or whether the defendant was
otherwise incapable of providing a voluntary confession. The interview itself ran
approximately four hours, during which Sergeant Faber offered Voegel several breaks to use
a restroom, smoke, or get a drink of water. Voegel does not contend that Sergeant Faber
made inappropriate promises of leniency or otherwise engaged in inappropriate interview
techniques. Rather, Sergeant Faber made less specific statements, such as telling Voegel that
individuals who admitted to their offenses were able to receive psychiatric treatment. She
also told Voegel that she tended to believe Co.B. and believed that something happened
between him and Voegel, and told Voegel that she understood that his life as a gay man was
difficult and not one that he chose. To the extent Voegel points to all this to contend that he
was overmatched by Sergeant Faber’s preparation and skill in conducting the interview, none
of this amounts to any form of police misconduct. Thus, we cannot conclude that the trial
court erred in its conclusion that Sergeant Faber appropriately conducted the interrogation or
that Voegel’s will was overcome in the manner required by law to render the confession
involuntary.
Voegel also does not establish any basis upon which we may conclude the trial court
7
erred in concluding that he was not so mentally ill as to lack the capacity to provide a
voluntary confession. Sergeant Faber, who had conducted nearly five-hundred interviews in
child abuse investigations, testified that Voegel never appeared unable to understand her
questions, consistently provided responses that appropriately tracked her queries, and never
became overly distraught. Despite Voegel’s repeated statements during the interview that he
felt like he might have a nervous breakdown, Sergeant Faber testified that Voegel remained
calm and collected throughout most of the interview. Sergeant Faber described as typical the
progress of her interview with Voegel. Moreover, this Court’s review of the video recording
of the interview does not reveal Voegel to be in an apparently agitated state.
Under these circumstances, we cannot conclude the trial court abused its discretion
when it concluded that the State had proved beyond a reasonable doubt that Voegel’s
confession was voluntary, and thus we find no error in the court’s admission of Voegel’s
confession into evidence at trial.
Exclusion of Prior Sexual Conduct Evidence
Voegel also contends that the trial court erred when, after initially ruling such
evidence was admissible, it ultimately excluded from evidence certain information
concerning Co.B.’s sexual history. Voegel argues that Co.B. gained knowledge of sexual
matters as a result of prior molestation by another individual, and that this raises doubts
concerning Co.B.’s accusations against Voegel.
Evidence Rule 412 governs the admissibility of evidence related to the prior sexual
experiences of an alleged victim of a sex crime. Rule 412 and a pair of common-law
8
exceptions to the rule broadly proscribe the admission of such evidence, except in a few
narrow circumstances; the parties agree on appeal that none of those circumstances applies in
the present case. Rather, Voegel contends that the effect of Rule 412 in his case
impermissibly infringed upon his right to cross-examine witnesses under the Sixth
Amendment to the United States Constitution and Article 1, Section 13 of the Indiana
Constitution.
The Sixth Amendment to the United States Constitution provides, in relevant part,
“[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the
witnesses against him.” This right is made obligatory upon the States by the Fourteenth
Amendment. Howard v. State, 853 N.E.2d 461, 464 (Ind. 2006). “The essential purpose of
the Sixth Amendment right of confrontation is to ensure that the defendant has the
opportunity to cross-examine the witnesses against him.” Id. at 465. This right “is
fundamental and essential to a fair trial,” and includes the right to ask questions in an effort
to undermine the State’s case, as well as to impeach the credibility of witnesses. Id.Yet the right to cross-examine witnesses “‘guarantees an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to whatever
extent, the defense might wish.’” Oatts v. State, 899 N.E.2d 714, 722 (Ind. Ct. App. 2009)
(quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). Nor is the right otherwise absolute;
it “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal
trial process.” Id. (internal quotations and citations omitted). Recognizing that the right to
cross-examine witnesses may be infringed upon by Evidence Rule 412, our supreme court
9
has held that the constitutionality of the Rule “‘is subject to examination on a case by case
basis.’” Id. (quoting Williams v. State, 681 N.E.2d 195, 201 (Ind. 1997)).
Here, Voegel contends that the trial court erred when it ruled against evidence he
proffered of a prior molestation, of which Co.B. was the victim. Voegel pursued a ruling in
limine on the admissibility of the evidence, which the trial court denied. The trial court ruled
that while it would permit an offer of proof on the matter, it would not permit Voegel to call
Co.B. to testify about the prior incident of molestation. Instead, the trial court ruled it would
permit Voegel to introduce court records related to the prior incident in order to preserve a
record for appeal.
Voegel contends that while this evidence does not fall within the exceptions to the
rape shield rule as set forth in Evidence Rule 412, the operation of the Rule and the trial
court’s ruling on the proffered evidence deprived him of his right to confrontation under the
United States and Indiana Constitutions.
We disagree on two grounds. First, Voegel did not make an offer of proof during the
trial of even the reduced scope permitted by the court’s ruling in limine. He has therefore
waived the matter on appeal. See Young v. State, 746 N.E.2d 920, 924 (Ind. 2001)
(“[f]ailure to make an offer of proof of the omitted evidence renders any claimed error
unavailable on appeal unless it rises to the level of fundamental error”).
Second, assuming without deciding that the trial court’s decision was in error, Voegel
has failed to establish how that decision would have amounted to fundamental error. “To
constitute fundamental error, the ‘defendant must show that the error was a substantial and
10
blatant violation of basic principles which rendered the result of the trial unfair.’” Id.(quoting Roach v. State, 695 N.E.2d 934, 942 (Ind. 1998)). Had Voegel made the limited
offer of proof permitted by the trial court, exclusion from evidence of the simple fact of a
prior incident of molestation by another person would not have so prejudiced Voegel’s
fundamental rights as to render the result of his trial unfair. And even under the broader set
of facts Voegel presented to the trial court in limine—that Co.B. had been previously
molested, and that the prior molestation had occurred in a bed—did not correspond in
sufficient detail to the numerous events to which Co.B. testified at Voegel’s trial, including
the use of pornographic videos and various items of sexual paraphernalia, as to make the
exclusion of the details of the prior incident so prejudicial as to raise the specter of
fundamental error here. See Oatts, 899 N.E.2d at 722 (recognizing that the strictures of
Evidence Rule 412 may, in some circumstances, yield to the right of confrontation).
We thus conclude that Voegel has waived for purposes of appellate review his
confrontation claims, and has also failed to demonstrate that any error associated with this
claim was so fundamental as to have rendered the result of his trial unfair.
Conclusion
The trial court did not abuse its discretion when it concluded that Voegel’s confession
was given voluntarily. Voegel has waived his confrontation claim concerning the
admissibility of certain evidence otherwise excluded under Evidence Rule 412, and has
further failed to establish fundamental error arising from the trial court’s exclusion of that
evidence.
11
Affirmed.
NAJAM, J., and BARNES, J., concur.
12