David D. West v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 28 2012, 8:44 am
court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
collateral estoppel, or the law of the case. court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
L. ROSS ROWLAND GREGORY F. ZOELLER
Public Defender’s Office Attorney General of Indiana
Muncie, Indiana
ANGELA N. SANCHEZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAVID D. WEST, )
)
Appellant-Defendant, )
)
vs. ) No. 18A02-1202-CR-146
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DELAWARE CIRCUIT COURT
The Honorable Linda Ralu Wolf, Judge
Cause No. 18C03-1009-FC-30
August 28, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Appellant-defendant David D. West appeals his convictions on two counts of
Child Exploitation,1 a class C felony, and two counts of Possession of Child
Pornography,2 a class D felony. West claims that the trial court erred in admitting several
photographs into evidence that were identified as coming from his camera, that the
prosecutor committed misconduct, that the trial court erred in determining that he is a
sexually violent predator (SVP), and that his eleven-year aggregate sentence is
inappropriate. Concluding that the photographs were properly admitted into evidence,
and finding no other error, we affirm the judgment of the trial court.
FACTS
In September 2010, S.B. had known West for approximately five years, since she
was in middle school. West was teaching S.B. about photography and occasionally she
left her two-year-old daughter, A.B., for West to babysit while she was shopping or
running other errands. On several occasions, West took naked photographs of A.B.
without S.B.’s permission.
On September 3, 2010, West brought his digital camera into Jack’s Camera Shop
in Muncie and asked an employee, Jennifer York, to make a CD of the photos that were
on the camera. York agreed to do so and she downloaded the photographs from West’s
camera onto the store’s computer and reviewed the photos before copying them onto a
1
Ind. Code § 35-42-4-4(b)(1).
2
I.C. § 35-42-4-4(c).
2
disc. After West received the CD, he left the store. Thereafter, York contacted the
Muncie Police Department.
On September 10, 2010, the State charged West with two counts of child
exploitation, a class C felony, possession of child pornography, a class D felony, and
performance before a minor that is harmful to minors, a class D felony. The State
subsequently amended the charges, and a jury trial commenced on August 24, 2011.
At trial, York identified three photographs that she had removed from West’s
camera. The photos included one of West, a close-up of A.B.’s vagina taken while she
wore no underwear and had her legs spread, a photograph of A.B. standing on a bed
naked with another young girl who also appears to be naked but who was partially
concealed by a toy, and a photograph of her on top of a nineteen-year-old girl who was
also naked.
West objected to the photographs’ admission into evidence on the grounds that the
State had failed to lay an adequate foundation for their admission. The trial court then
permitted West to ask York some preliminary questions. Following some questioning
about the large number of photos that York had processed during her career and her
ability to recall these specific photographs, the trial court admitted the photographs over
West’s objection.
At some point during closing argument, the deputy prosecutor gave an incomplete
definition of sexual conduct to the jury with regard to the child exploitation charge. More
particularly, the deputy prosecutor remarked, “And as before, we talk about sexual
3
conduct, this is showing of genitalia. By a child under the age of eighteen.” Tr. p. 143.
However, the deputy prosecutor had previously engaged in a detailed and complete
discussion of the definition with the jury during the argument. Id. at 142-43. More
particularly, the deputy prosecutor thoroughly discussed the need to find that the
photographs were for someone’s sexual arousal. Id.
At the conclusion of the trial, the jury found West guilty as charged on the child
exploitation and possession of child pornography charges. Pursuant to the State’s
motion, the trial court appointed psychiatrist, Dr. Craig Buckles, and a psychologist, Dr.
Frank Krause, to determine whether West should be considered a SVP.
Dr. Buckles observed that West showed signs of antisocial personality disorder as
well as psychosis, and he opined that West might be a pedophile. Dr. Krause concluded
that West exhibited traits of a personality disorder and displayed borderline antisocial
characteristics. Both physicians determined that West was likely to reoffend given the
opportunity, and both recommended that the trial court should declare West a SVP.
The trial court, in fact, found that West was a SVP. In considering what sentence
to impose, the trial court identified both mitigating and aggravating circumstances. The
trial court determined that the aggravating factors outweighed the mitigating
circumstances and sentenced West to an aggregate term of eleven years of incarceration.
More particularly, West received seven years on Count I, seven years on Count II, to be
served concurrently with Count I, two years on Count III, to be served consecutively to
4
Counts I and II, and two years on Count IV, to be served consecutively to Counts I, II,
and III. West now appeals.
DISCUSSION AND DECISION
I. Admission of Photographs
West first contends that the trial court abused its discretion in admitting several
photographs of A.B. into evidence at trial. Specifically, West maintains that the State
failed to lay a proper foundation for their admission.
In resolving this issue, we initially observe that West has failed to present a cogent
argument in support of his claim, and he does not identify the applicable standard of
review. As set forth in Indiana Appellate Rule 46(A)(8)(a), “the argument must contain
the contentions of the appellant on the issues presented, supported by cogent reasoning.
Each contention must be supported by citations to the authorities, statutes, and the
Appendix or parts of the record on Appeal relied on. . . .” West has waived this issue
because he cites no legal authority whatsoever in support of his claim on appeal. Vance
v. State, 860 N.E.2d 617, 620 (Ind. Ct. App. 2007).
Waiver notwithstanding, a trial court has broad discretion in ruling on the
admissibility of evidence, and we will disturb the trial court’s ruling only where it is
shown that the trial court abused its discretion. Sublett v. State, 815 N.E.2d 1031, 1034
(Ind. Ct. App. 2004). An abuse of discretion occurs where the trial court’s decision is
clearly against the logic and effect of the facts and circumstances before the court.
Packer v. State, 800 N.E.2d 574, 578 (Ind. Ct. App. 2003). Also, even if a trial court errs
5
in admitting evidence, we will not overturn the conviction if the error is harmless.
Appleton v. State, 740 N.E.2d 122, 124 (Ind. 2001). An error will be viewed as harmless
if the probable impact of the evidence upon the jury is sufficiently minor so as not to
affect a party’s substantial rights. Fleener v. State, 656 N.E.2d 1140, 1142 (Ind. 1995).
In this case, York testified that West brought his camera into the shop and asked
her to make a CD with copies of the digital photographs stored on the camera. Tr. p. 64-
65. York took the memory card from the camera, downloaded the images from it onto
the store’s computer, and reviewed the images before copying them to a CD for West.
After several of the images caught her attention, she showed them to a coworker and
contacted the police. York testified at trial that she recognized the three photographs that
the State offered as Exhibits 1, 2, and 3, as images that had been on the memory card that
West had provided to her from his camera.
In light of the above, York’s testimony provided an adequate foundation with
regard to the identification and authentication of the photographs. Although West
objected to the adequacy of the foundation for the admission of the photographs and was
permitted to ask preliminary questions, he never specified what aspect of the foundation
he found lacking. Rather, West’s preliminary questions focused on how many
photographs York had processed during her years of employment and how she
remembered the photos. Tr. p. 68-69.
Although West asserts that the foundation for the admission of the photographs
into evidence was inadequate “because there was no testimony that the disc was given to
6
an officer or that those pictures were taken from that disc,” West directs us to no
authority, and we have found none, in support of the proposition that the photographs
should have passed through the possession of a police officer to identify and authenticate
them prior to their admission. Appellant’s Br. p. 11. York’s testimony that she
recognized the photographs in the exhibits as the images that West had provided to her
from his camera provided an adequate basis for admitting them into evidence. Thus,
West’s claim fails.
II. Prosecutorial Misconduct
West next contends that his conviction must be reversed because of prosecutorial
misconduct. Specifically, West asserts that the trial court erred “in allowing the State to
mislead the jury by giving only a partial definition of sexual conduct” during closing
argument. Appellant’s Br. p. 1.
West has also waived this argument by failing to present a cogent argument
supported by legal authority. He cites no legal authority in support of his claim and does
not set forth any standard of review. Waiver notwithstanding, we note that reviewing a
prosecutorial misconduct claim requires two steps. First, we must determine whether the
prosecutor engaged in misconduct. Carter v. State, 956 N.E.2d 167, 169 (Ind. Ct. App.
2011), trans. denied. We then determine “whether the misconduct, under all of the
circumstances, placed the defendant in a position of grave peril to which he should not
have been subjected.” Id. The gravity of peril is measured by the probable persuasive
7
effect of the misconduct on the jury’s decision rather than the degree of impropriety of
the conduct. Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002).
To preserve a claim of prosecutorial misconduct, the defendant must not only
object to the alleged misconduct but must also request an admonishment and move for a
mistrial. Cowan v. State, 783 N.E.2d 1270, 1277 (Ind. Ct. App. 2003). Although West
objected to the deputy prosecutor’s alleged misstatement of the law during closing
argument, West neither requested an admonishment nor moved for a mistrial. Tr. p. 143-
44. Thus, his claim is not preserved. That said, when the claim is not preserved by a
contemporaneous objection and request for admonishment and mistrial, the defendant
must not only establish the grounds for prosecutorial misconduct but also the grounds for
fundamental error in order to succeed on his claim. Booher, 773 N.E.2d at 818.
Fundamental error is a “substantial, blatant violation of due process” that is so prejudicial
to the rights of the defendant that a fair trial was impossible. Hall v. State, 937 N.E.2d
911, 913 (Ind. Ct. App. 2010).
As noted above, the prosecutor had argued that the sexual conduct supported
Count II, stating, “as before, we talk about sexual conduct, this is showing of genitalia.
By a child under the age of eighteen.” Tr. p. 143. While this statement standing alone is
not a complete definition of sexual conduct, the prosecutor had already recited the
complete definition contained in the jury instructions earlier in closing argument. Id. at
142-43. Also during that discussion, the deputy prosecutor discussed the need for the
jury to find evidence that the pictures were for someone’s sexual arousal. Moreover, the
8
trial court instructed the jury that 1) the jury was the judge of the law and the facts; 2) the
court’s instructions are the jurors’ best source for determining what the law is; and 3) the
statements and arguments made by counsel are not evidence. Id. at 131-35.
When considering all of these comments that were made during closing argument
in conjunction with the final instructions that were given, there is no indication that the
deputy prosecutor made any effort to mislead the jury about the law. Put another way,
there is no reasonable probability that the isolated statement to which West objected
actually misled the jury.
In short, West has made no showing that the deputy prosecutor’s comments placed
him in a position of grave peril or deprived him of a fair trial. As a result, even if West
had not waived this issue on appeal, his claim of prosecutorial misconduct would fail.
III. Sexually Violent Predator
West next argues that the trial court’s finding that he is a SVP must be set aside.
West maintains that the opinions of the psychiatrist and psychologist were based solely
on “hearsay and the psychologist admit[ted] that his finding was not an exact science and
there is a lot of gray area.” Appellant’s Br. p. 13.
Once again, West has waived this issue because he cites no legal authority or
standard of review in support of his claim. Vance, 860 N.E.2d at 620. Waiver
notwithstanding, we note that for the trial court to find West a SVP, the trial court had to
determine if he suffered “from a mental abnormality or personality disorder that makes
9
him . . . likely to repeatedly commit the enumerated sex or violent offenses.” Ind. Code
§§ 35-38-1-7.5(a); 11-8-8-4.5(a).
When determining whether sufficient evidence exists with regard to a SVP
finding, we will neither reweigh the evidence nor judge the credibility of the witnesses.
Scott v. State, 895 N.E.2d 369, 374 (Ind. Ct. App. 2008). Also, we consider only the
evidence supporting the judgment and any reasonable inferences that can be drawn from
such evidence. Id.In this case, both physicians who were appointed by the trial court had conducted
approximately thirty-five prior SVP evaluations. Tr. p. 175, 183. Both of them
interviewed West, and Dr. Krause had previously met West because the trial court had
appointed him to perform a competency evaluation earlier in the case. Id. at 170, 182.
Dr. Krause issued several psychological tests to West, including personality assessments
and intelligence testing.
Both doctors submitted written summary reports of their findings to the trial court
and testified at the SVP determination hearing. They both determined that West was
likely to reoffend if given the opportunity and that he should be classified as a SVP. Tr.
p. 175-76, 187, 189. Dr. Buckles found that West had disorganized thinking, reported
hallucinations, saw nothing wrong with his conduct, and had a history of alcohol abuse.
Id. at 173-74. He concluded that West displayed symptoms of psychosis, antisocial
personality disorder, and that he may be a pedophile because of his interest in photos of
naked children. Id. at 174, 176-77, 179. Dr. Krause also found that West lacked remorse
10
and had no interest in treatment. Id. at 185-86. It was further determined that West had a
history of intense and volatile relationships, showed impulsiveness, and was
“unsympathetic in his relationships.” Id. at 188. Dr. Krause concluded that West had a
personality disorder and displayed antisocial traits. Id. at 186.
The basis for, and the limits of, the doctors’ opinions were explored during direct
and cross-examination, and it is apparent that the trial court reasonably relied on both
doctors’ opinions that West should be found to be a SVP. Similarly, we cannot say that
Dr. Buckles’s testimony was unreliable merely because he had been led to believe that
West possessed many pornographic photographs of children, even though he had not
personally seen them. Tr. p. 174, 176-77, 179. The pictures influenced Dr. Buckles’s
opinion that West may be a pedophile, and Dr. Buckles explained that his opinion was
based on West’s interest in pictures of naked children and that it did not matter how many
of those types of photos that West possessed. Contrary to West’s contention, there is no
basis to believe that the total number of such pictures would alter Dr. Buckles’s opinion
that West suffered from a personality disorder, was likely to reoffend, and should be
found to be a SVP.
In sum, the reports and testimony of both doctors are more than sufficient to
sustain the trial court’s finding that West is a SVP. Thus, even if West had not waived
this issue on appeal, we would decline to set that finding aside.
IV. Sentencing
11
Finally, West challenges the appropriateness of his sentence. Specifically, he
maintains that the eleven-year aggregate sentence is inappropriate when considering the
nature of the offense and his character.
Pursuant to Indiana Rule of Appellate Procedure 7(B), the “Court may revise a
sentence authorized by statute if, after due consideration of the trial court’s decision, the
Court finds that the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” Under this rule, the question is not whether another sentence
is more appropriate, but whether the sentence imposed is inappropriate. King v. State,
894 N.E.2d 265, 268 (Ind. Ct. App. 2008). The defendant carries the burden of
persuading this court that his sentence is inappropriate. Childress v. State, 848 N.E.2d
1073, 1080 (Ind. 2006). The defendant must show that his sentence is inappropriate in
light of both his character and the nature of the offense. Williams v. State, 891 N.E.2d
621, 633 (Ind. 2006).
As for the nature of the offense, the evidence shows that West cultivated a trusting
relationship with S.B., A.B.’s mother, and was allowed to babysit A.B. on several
occasions. Tr. p. 84-87, 89, 96. West took multiple photographs of A.B. when she was
unclothed. The photos included a very close up image of her vagina with her legs spread,
a photograph of her with another naked young girl, and a photograph of her laying on top
of a nineteen-year-old girl, who was also naked. Id. at 115-16. West abused his position
of trust to take pornographic images of A.B. and disseminated these images by taking
12
them to a camera shop to be copied. Nothing about the nature of West’s offenses renders
his sentence inappropriate.
As for West’s character, the record shows that he committed the instant offenses
while on probation for attempted criminal confinement. West has a history of alcohol
abuse and, despite being on probation, claimed to have consumed a half-gallon of
whiskey on the day that he committed the offenses, although he asserted that he “wasn’t
even buzzed.” Tr. p. 215. West showed no remorse for his actions and, although he
admitted taking the photographs, he denied that he did anything wrong. Id. at 209-14.
West attempted to minimize his conduct by claiming that he was not a sex
offender and did not harm any children because he did not touch them but only took
photographs. Tr. p. 185, 209. He also told Dr. Buckles that the photographs were taken
with S.B.’s permission and only from a distance. However, the evidence demonstrated
that S.B. never saw the naked photographs and that she never gave West permission to
take them.
In sum, West’s conduct demonstrates a pattern of behavior where he used his
interest in photography to exploit a vulnerable young person to satisfy his own sexual
interest. In light of the above, we conclude that West has failed to prove that his sentence
is inappropriate in light of the nature of the offense or his character. Thus, we decline to
set his sentence aside.
The judgment of the trial court is affirmed.
ROBB, C.J., and BRADFORD, J., concur.
13