Mark A. Cook v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Aug 19 2013, 5:39 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PAUL MATTHEW BLANTON GREGORY F. ZOELLER
JEFFREY K. BRANSTETTER Attorney General of Indiana
Blanton Branstetter & Pierce, LLC
Jeffersonville, Indiana ANGELA N. SANCHEZ
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARK A. COOK, )
)
Appellant-Defendant, )
)
vs. ) No. 88A01-1210-CR-468
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WASHINGTON CIRCUIT COURT
The Honorable Larry W. Medlock, Judge
Cause No. 88C01-0910-FC-508
August 19, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
In 2012, Mark A. Cook was convicted of molesting his girlfriend’s teenage
daughter. On appeal, he argues that he was denied due process, the trial court erred by
allowing improper vouching testimony, and there was a material variance in the evidence
at trial. Cook did not raise any of these claims at trial, and thus he is held to the rigorous
fundamental-error standard. Because Cook fails to establish that any fundamental error
occurred, we affirm.
Facts and Procedural History
Cook began dating A.F. in 2000. A.F. has four daughters, including J.F.
Sometime after Cook moved in with A.F. and her daughters (J.F. was four years old at
the time), he began “rub[bing] [J.F.] to sleep,” by massaging her body, including her
stomach, arms, legs, and back. Vol. II Tr. p. 97, Vol. III Tr. p. 91-92. Cook’s
relationship with A.F. continued, and over time, Cook became a sort of father figure to
J.F. Vol. II Tr. p. 96.
One summer day in 2009, when J.F. was thirteen years old, she awoke to find
Cook’s hand on her vagina. Vol. II Tr. p. 100-01. J.F. pretended to be asleep, and Cook
climbed on top of her and tried to penetrate her vagina with his penis. When Cook could
not penetrate her, he left the room. On at least two other occasions that summer, Cook
tried to penetrate J.F.’s vagina with his penis while she slept. On another occasion, Cook
entered J.F.’s room while she was sleeping and put his tongue in her vagina. After every
encounter, Cook told J.F. that he loved her. Vol. II Tr. p. 105.
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J.F. confided in a friend about the molestation, and her friend told her stepmother,
who contacted police. In October 2009, Cook was charged with Count I, child molesting
as a Class C felony. An initial hearing was held on the child-molesting charge two
months later. Cook was represented by a private attorney at the initial hearing. In July
2011, the State moved to amend the dates alleged in Count I and to add Count II,
attempted child molesting as a Class A felony. Appellant’s App. p. 264-69. Cook did
not respond to the State’s motion, and on August 8, the trial court granted the State’s
requests.
At the end of August, Cook’s attorney filed a motion to withdraw, citing the
recently added Class A felony charge and the time and resources needed to defend Cook
against that charge. The attorney told the court that he had discussed the new charge with
Cook. See Supp. Tr. p. 2-3. The trial court granted counsel’s motion to withdraw. The
trial court appointed a public defender for Cook in October 2011, after allowing Cook
two months to try to find a new attorney on his own. In May 2012, the State again
moved to amend the charging information. This time, the State sought to specify the
substantial step alleged in furtherance of the attempted child molestation charged in
Count II; specifically, that Cook exposed his penis to J.F. Id. at 229. The trial court
granted the State’s motion over Cook’s objection.
Cook’s two-day jury trial began in June 2012. At trial, J.F. testified that in a
number of encounters, Cook had touched her vagina, placed his tongue in her vagina, and
attempted to penetrate her vagina with his penis. Vol. II Tr. p. 100-05. Detective Brent
Miller, the lead investigator in the case, also testified. During the detective’s testimony,
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the State played the audio recording of his interview with Cook. In the interview,
Detective Miller asked Cook if he thought J.F. was an honest person. Vol. II Tr. p. 249,
Vol. III Tr. p. 42. Cook said she was. Id. Detective Miller agreed, saying many times
that J.F. was honest and had no reason to lie:
[I] mean, I don’t . . . know that she has any reason to lie about [being
molested]. She’s a smart student, she makes good grades. She’s an honest
person.
* * * * *
[S]ome of the questions we’ve asked you, you helped corroborate her story.
That she is telling the truth because of some of the things that you told us,
that you didn’t think amount[ed] to anything, but it corroborates her story.
* * * * *
She seemed to be honest and very sincere to me.
Vol. III Tr. p. 18-19, 23, 42. Although Detective Miller made these statements, he also
suggested that J.F. might have initiated the sexual contact and that J.F. perhaps fantasized
about Cook being her boyfriend. See Vol. II Tr. p. 229, Vol. III Tr. p. 7, 10-11, 15-16,
24, 30-36, 43-45. At trial, Detective Miller explained that this was an interview
technique in which he purposely “tr[ied] to minimize the crime” in order to encourage a
suspect to “open up and talk to” him. Vol. II Tr. p. 228-29. During the investigation and
at trial, Cook admitted that he touched J.F.’s vagina on four occasions, but he claimed
that J.F. put his hand there. Vol. III Tr. p. 58, 132-35, 141-42. Cook denied any other
sexual contact with J.F. and implied that her testimony was incredibly dubious because
someone in the house would have heard something if he had done what J.F. claimed. See
Vol. III Tr. p. 93 (describing J.F.’s bed as “squeaky), 97 (saying A.F. is a light sleeper).
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The jury found Cook guilty as charged and the trial court sentenced him to six
years on Count I and forty years—with seven and a half years suspended—on Count II,
to be served concurrently. Cook now appeals.
Discussion and Decision
On appeal, Cook argues that he was denied due process, the trial court erred by
allowing improper vouching testimony, and the evidence at trial materially varied from
the allegations in Count II.
I. Due Process
A. Initial hearing
Cook contends he was denied due process because he was not provided an initial
hearing on Count II when it was added. But Cook never objected to the amended
charges, nor did he argue that an initial hearing on the amended charges was required
before trial could occur. For this reason, we find no error. See Costello v. State, 643
N.E.2d 421, 422 (Ind. Ct. App. 1994) (“The failure of the record to show either an
arraignment or plea, or both, will not invalidate a conviction unless the record shows the
defendant objected, before the trial commenced, to the lack of arraignment or plea.”).
Cook also argues that he did not have notice of Count II. But the record shows
otherwise. Notice of the amended charge was sent to Cook’s first attorney, which
constitutes notice to Cook. See Ind. Trial Rule 5; Ind. Criminal Rule 18. And Count II
was added ten months before Cook’s trial. This gave Cook’s first attorney time to
discuss the amended charge with Cook. Before withdrawing from the case, Cook’s first
attorney sent Cook a letter explaining the amended charge and met with Cook to discuss
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the amended charges. Count II was also discussed at the hearing in October 2011, when
the trial court appointed a public defender to represent Cook. Vol. I Tr. p. 9. And when
Cook’s second attorney took over, he waived a hearing on the later amendment to Count
II. Vol. I Tr. p. 13. For these reasons, we conclude that Cook was not denied due
process as to Count II.1
B. Critical Stage
Cook also argues that he was not represented by counsel at every critical stage of
the proceedings. The Sixth Amendment to the United States Constitution requires the
assistance of counsel at all critical stages of the prosecution. See Hernandez v. State, 761
N.E.2d 845, 849 (Ind. 2002). The denial of this constitutional right is subject to
a harmless-error analysis “unless the deprivation, by its very nature, cannot be
harmless.” Id. (citation omitted).
After his first attorney withdrew, Cook was unrepresented for a ten-week period
from August to October 2011. Cook’s argument seems to be that this ten-week window
was a critical stage because three alleged errors occurred just before or during this time
period: the State was permitted to add Count II, his first attorney withdrew without
complying with statutory requirements, and his right to a speedy trial was violated. Cook
did not object on any of these grounds at trial, and he does not ask this Court to grant him
1
Cook also suggests that there were due-process violations in the initial hearing on Count I, at
which time he was represented by his first attorney. Cook never raised this issue at the trial level. Nor is
it a persuasive appellate argument. Cook claims that he was not properly advised regarding his right to
court-appointed counsel, the function of a preliminary plea, and the nature of the charges against him.
But in order to warrant reversal, a defendant must show that the failure of the trial court to advise him of
his rights at the initial hearing caused him harm. Bochner v. State, 715 N.E.2d 416, 418 (Ind. Ct. App.
1999) (citing Fox v. State, 506 N.E.2d 1090, 1096 (Ind. 1987), trans. denied). Cook has not proven that
any of these alleged advisement failures caused him harm.
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independent relief on any of these bases. Instead, he claims that these alleged errors
prove that the ten-week period during which he had no attorney was a critical stage.
Assuming without deciding that this was a critical stage, any error in Cook’s
deprivation of counsel was harmless. Cook’s second attorney represented him for seven
months before his trial. During this time, the attorney could have challenged any error in
the addition of Count II via a motion to dismiss, which Cook himself acknowledges. See
Appellant’s Reply Br. p. 8. As for Cook’s speedy-trial argument, his second attorney
could have filed a motion for discharge pursuant to Criminal Rule 4(C). Although Cook
argues that these motions would have been filed later if filed by his second attorney,
rather than his first, Cook was still capable of pursuing these claims. To the extent
Cook’s first attorney’s withdrawal may have been improper, Cook did not object to the
withdrawal. And when Cook was unable to retain a new attorney on his own, the trial
court appointed an attorney who represented Cook before and during his trial, and he was
was capable of addressing any claims of error Cook sets forth above. For these reasons,
Cook has failed to show he was denied due process.
II. Vouching Testimony
Cook next claims that the trial court erred by admitting vouching testimony.
Vouching testimony is generally prohibited under Indiana Evidence Rule 704(b), which
states: “Witnesses may not testify to opinions concerning intent, guilt, or innocence in a
criminal case; the truth or falsity of allegations; whether a witness has testified truthfully;
or legal conclusions.” This testimony is considered an “invasion of the province of the
jurors in determining what weight they should place upon a witness’s testimony.”
7
Kindred v. State, 973 N.E.2d 1245, 1257 (Ind. Ct. App. 2012) (quoting Gutierrez v. State,
961 N.E.2d 1030, 1034 (Ind. Ct. App. 2012)), trans. denied. “Until recently, an
exception was made to Evidence Rule 704(b) for vouching testimony in child-
molesting cases[,]” but, in Hoglund v. State, 962 N.E.2d 1230 (Ind. 2012), our Supreme
Court eliminated the “vouching testimony exception in the context of child-
molesting cases.” Palilonis v. State, 970 N.E.2d 713, 729 (Ind. Ct. App. 2012), trans.
denied.
Cook admits that he did not object to the admission of the evidence he now
challenges on appeal. Thus, his vouching claim is waived unless he can show that
fundamental error occurred. Kimbrough v. State, 911 N.E.2d 621, 634 (Ind. Ct. App.
2009). The fundamental-error rule is extremely narrow. Id. Fundamental error occurs
only when the error “constitutes a blatant violation of basic principles, the harm or
potential for harm is substantial, and the resulting error denies the defendant fundamental
due process.” Id.Cook challenges statements made by Detective Miller in his pretrial interview
with Cook, which was played for jurors. During the interview, Detective Miller
repeatedly stated that J.F. was honest and had no reason to lie. This is impermissible
vouching testimony. See Kindred, 973 N.E.2d at 1258 (witnesses vouched for child’s
credibility when they stated that the child was truthful, believable, and would not lie).2
2
Cook also argues that his case is analogous to Kindred, where this Court reversed a child-
molesting conviction. But in Kindred, we found that the cumulative effect of the admission of vouching
testimony from two witnesses and hearsay testimony from five witnesses—as well as other evidence—
was fundamental error. 973 N.E.2d at 1258-59. The extent of the improper evidence in that case,
combined with the unique facts of the case, led to the conclusion that fundamental error had occurred.
Cook’s reliance on Kindred is not persuasive.
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But it does not rise to the level of fundamental error. Although Detective Miller vouched
for J.F.’s credibility, the harm posed by the detective’s vouching testimony decreased
significantly when the detective also impugned J.F.’s credibility by suggesting that she
might have instigated the sexual contact with Cook and might have fantasized about
Cook being her boyfriend. Because the challenged testimony did not create a substantial
harm or make a fair trial impossible for Cook, we cannot say that fundamental error
occurred.
III. Material Variance
Finally, Cook alleges a fatal variance between the charging information on Count
II, Class A felony attempted child molesting, and the proof at trial. “A variance is an
essential difference between proof and pleading.” Allen v. State, 720 N.E.2d 707, 713
(Ind. 1999) (citing Mitchem v. State, 685 N.E.2d 671, 677 (Ind. 1997)). A variance does
not necessarily require reversal, however. Broude v. State, 956 N.E.2d 130, 135 (Ind. Ct.
App. 2011) (citing Mitchem, 685 N.E.2d at 677), trans. denied. The test to determine
whether a variance is fatal is:
(1) was the defendant misled by the variance in the evidence from the
allegations and specifications in the charge in the preparation and
maintenance of his defense, and was he harmed or prejudiced thereby;
(2) will the defendant be protected in [a] future criminal proceeding
covering the same event, facts, and evidence against double jeopardy?
Id. (citing Allen, 720 N.E.2d at 713). “Put another way, if the variance either misleads
the defendant in the preparation of his defense resulting in prejudice or leaves the
defendant vulnerable to double jeopardy in a future criminal proceeding covering the
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same event and evidence, then the variance is fatal.” Id. (citing Winn v. State, 748
N.E.2d 352 (Ind. 2001)).
Cook acknowledges that he failed to make a variance objection at trial. Absent
fundamental error, Cook’s failure to lodge an objection at trial waived any material-
variance issue. Bayes v. State, 779 N.E.2d 77, 88 (Ind. Ct. App. 2002) (citation omitted),
trans. denied. Waiver aside, we fail to see the variance that Cook alleges. The amended
information for Count II reads:
Mark A. Cook, a person at least twenty-one (21) years of age, did then and
there knowingly or intentionally, with a child less than fourteen (14) years
of age, to wit: J.F., attempt to perform sexual intercourse or deviate sexual
conduct, and engaged in conduct that constituted a substantial step in
furtherance of that crime, to wit: exposing his penis . . . .
Appellant’s App. p. 228. At trial, the State proved that substantial step through J.F.’s
testimony. Although J.F. never expressly stated that Cook exposed his penis to her, she
testified that he tried to force his penis into her vagina on at least three occasions. The
reasonable inference from J.F.’s testimony is that Cook exposed his penis when he tried
to put it in her vagina. Thus, there was no “essential difference between proof and
pleading”; rather, the State’s evidence showed that Cook’s actions went beyond mere
exposure. We do not agree with Cook that this amounted to a variance.
Even if a variance existed, it would not be fatal. Cook’s defense at trial was that
he only touched J.F.’s vagina because she took his hand and put it there. He denied any
other sexual contact with J.F., implying that her testimony was incredibly dubious
because someone in the house would have heard something if he had attempted to
penetrate J.F.’s vagina with his penis. Therefore, there is no reason to believe that
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Cook’s defense would have changed had the charging information alleged that he had
attempted to molest J.F. by going beyond mere exposure and attempting to penetrate her
vagina with his exposed penis. For this reason, we cannot say that Cook was prejudiced
in the preparation of his defense. See Broude, 956 N.E.2d at 136 (No preparation-of-
defense issue where “defense would have been the same no matter what the factual nature
of the child molesting allegations had been.”)
Nor did any alleged variance leave Cook vulnerable to double jeopardy in a later
criminal proceeding. The State alleged that Cook took a substantial step toward
committing child molesting by exposing his penis to J.F., and the State identified a
specific date range during which these acts were alleged to have occurred. At trial, J.F.
testified about specific instances in that date range when Cook tried to penetrate her with
his penis and touched her vagina with his hands and tongue. Double-jeopardy principles
would preclude another trial and conviction based on the same evidence and facts
presented in Cook’s first trial.3
Affirmed.
KIRSCH, J., and PYLE, J., concur.
3
We need not reach Cook’s sufficiency argument as it is premised on his material-variance claim.
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