Matthew R. Gouldsmith v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jul 26 2017, 10:15 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
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
Glen E. Koch II Curtis T. Hill, Jr.
Boren, Oliver & Coffey, LLP Attorney General of Indiana
Martinsville, Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Matthew R. Gouldsmith, July 26, 2017
Appellant-Defendant, Court of Appeals Case No.
55A01-1605-CR-1022
v. Appeal from the Morgan Circuit
Court
State of Indiana, The Honorable Matthew Hanson,
Appellee-Plaintiff. Judge
Trial Court Cause No.
55C01-1408-FB-1291
Bailey Judge.
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Case Summary
[1] Matthew Gouldsmith (“Gouldsmith”) was convicted of three counts of Sexual
Misconduct with a Minor, as Class B felonies;1 one count of Child Exploitation,
as a Class C felony;2 and two counts of Voyeurism, as Class D felonies. 3 The
trial court sentenced him to an aggregate term of imprisonment of thirty-one
years, with eleven years suspended to probation. He now appeals.
[2] We affirm in part, reverse in part, and remand.
Issues
[3] Gouldsmith presents two issues for our review. We restate these as:
I. Whether the trial court abused its discretion when it
denied certain of Gouldsmith’s for-cause challenges to
jurors; and
II. Whether the trial court abused its discretion in fixing the
terms of Gouldsmith’s probation.
1
Ind. Code § 35-42-4-9(a)(1).
2
I.C. § 35-42-4-4(b)(1).
3
I.C. §§ 35-45-4-5(b)(2), -(c)(1).
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Facts and Procedural History
[4] Gouldsmith, who lived in Martinsville, had a teenaged son who dated M.B. In
the summer of 2012, after M.B. had graduated from middle school, Gouldsmith
met M.B. after sending her a message through Facebook. During their
exchange of messages, M.B. told Gouldsmith that she attended school with his
son and that Gouldsmith’s son was her ex-boyfriend. M.B. lived in Brooklyn,
Indiana, at the time, and both she and Gouldsmith frequented the same comic
book store in Martinsville.
[5] One day during the summer of 2012, Gouldsmith asked M.B. to go to his house
to watch movies and play video games. M.B. agreed to go with Gouldsmith,
and later went home.
[6] Later in the summer of 2012, Gouldsmith again asked M.B. to come to his
home from the comic book store. Around this time, M.B. had begun taking a
gym class during the summer, and Gouldsmith offered to give her a ride to
school the next morning if she wanted to stay the night. M.B. agreed, and went
to sleep in a bedroom alone, with Gouldsmith sleeping in a separate room.
However, during some point in the night, M.B. awoke to find Gouldsmith in
bed with her. Though M.B. tried to squirm away, Gouldsmith drew closer. He
eventually removed M.B.’s pants and underwear and penetrated her vagina
with his penis. The next day, Gouldsmith drove M.B. to her gym class.
[7] Later again that summer, M.B. stayed the night at Gouldsmith’s home.
Gouldsmith again performed sexual intercourse upon M.B. As time went on,
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the frequency of M.B.’s visits to Gouldsmith’s home increased, as did the
frequency of sexual activity, which included vaginal, anal, and oral intercourse.
This continued through the summer of 2013, when M.B. reached fifteen years
of age. Eventually, Gouldsmith was engaging in sexual acts with M.B. three to
five times per week.
[8] M.B. and Gouldsmith also exchanged numerous text messages throughout their
interactions. Gouldsmith would show M.B. nude photos of himself, and M.B.
sent photos of herself to Gouldsmith. On two occasions, Gouldsmith took
photos through a cracked door of an undressed M.B. dressing herself while
M.B. was unaware of Gouldsmith’s presence.
[9] Gouldsmith eventually decided to open his own comic book shop in
Martinsville, and offered to hire M.B. to help with work at the shop.
Gouldsmith usually paid M.B. with cigarettes, rather than with money.
Eventually, in 2014, the sexual relationship between Gouldsmith and M.B.
ended after a dispute between the two.
[10] In June 2014, M.B. demanded in a text message that Gouldsmith pay her $200
every other week and threatened to tell police about the sexual activity between
them, which she said “‘by law is statutory rape.’” (Tr. Vol. 4 at 172.)
Gouldsmith in turn contacted police to ask them to intervene by stopping
M.B.’s communication with him. During the subsequent police investigation,
M.B. stood by her allegations concerning Gouldsmith’s conduct. Gouldsmith
was subsequently arrested.
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[11] On August 27, 2014, Gouldsmith was charged with four counts of Sexual
Misconduct with a Minor; one count of Child Exploitation; and two counts of
Voyeurism. On January 14, 2016, the State amended the charging information,
and proceeded to trial with three counts of Sexual Misconduct with a Minor,
one count of Child Exploitation, and two counts of Voyeurism.
[12] On January 25, 2016, a jury trial commenced and jury selection was conducted.
Based upon information in the juror questionnaires related to prior sexual
assault victimization or knowledge of others who had been victims of sexual
assault, individual voir dire was conducted of members of the venire. The trial
court struck a number of the members of the venire and denied several of
Gouldsmith’s for-cause objections. Jury selection proceeded and Gouldsmith
lodged more peremptory challenges, striking from the jury two venirepersons
against whom he had previously lodged for-cause objections that the trial court
denied.
[13] A trial was conducted on January 26 through January 28, 2016. At the
conclusion of the trial, the jury found Gouldsmith guilty of three counts of
Sexual Misconduct with a Minor, one count of Child Exploitation, and two
counts of Voyeurism.
[14] On April 5, 2016, the trial court entered judgment of conviction and sentenced
Gouldsmith to an aggregate term of imprisonment of thirty-one years, with
eleven years suspended to probation. Four years of the probation were to be
served as monitored probation. A number of conditions were imposed as part
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of Gouldsmith’s probation, including terms that prohibited Gouldsmith from
patronizing adult bookstores and other establishments and from engaging in
certain kinds of sexual relationships.
[15] This appeal ensued.
Discussion and Decision
For-Cause Challenges
[16] Gouldsmith’s first contention on appeal is that the trial court abused its
discretion when it denied his for-cause challenges as to three members of the
venire. We generally review a trial court’s decision on for-cause challenges for
an abuse of discretion. Oswalt v. State, 19 N.E.3d 241, 245 (Ind. 2014). Because
the trial court is uniquely positioned to observe and assess the demeanor of
potential jurors during questioning by counsel, we afford substantial deference
to trial court decisions on for-cause challenges. Id. We will therefore “‘find
error only if the decision is illogical or arbitrary.’” Id. (quoting Whiting v. State,
969 N.E.2d 24, 29 (Ind. 2012)).
[17] An appellant must have preserved for appellate review the trial court’s denial of
a for-cause objection, and failure to do so results in procedural default. Id. at
246. This requirement, known as the exhaustion rule, “requires parties to
peremptorily remove jurors whom the trial court refuses to strike for cause or
show that they ‘had already exhausted [their] allotment of peremptories’ at the
time they request for-cause removal.” Id. (quoting Whiting, 969 N.E.2d at 30).
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An appellate court will find reversible error “‘only where the defendant
eventually exhausts all peremptories and is forced to accept either an
incompetent or an objectionable juror.’” Id. (quoting Whiting, 969 N.E.2d at
30).
[18] In articulating the exhaustion rule, the Indiana Supreme Court has counseled
parties to avoid waiver. The Indiana Supreme Court has twice observed that
preservation of an appeal from the allegedly erroneous denial of for-cause
objections requires both 1) exhaustion of a party’s peremptory strikes, and 2)
that the objecting party “made a record of [its] desire and inability to strike”
objectionable jurors. Merritt v. Evansville-Vanderburgh School Corp., 765 N.E.2d
1232, 1238 (Ind. 2002) (concluding that failure to use peremptory strikes and to
make a record of the inability to strike additional jurors subject to for-cause
challenges resulted in waiver of appellate review); Oswalt, 19 N.E.3d at 248
(finding appeal preserved when the defendant extinguished his peremptory
challenges and had “‘a record that says … I’m out of preempts and I’m not
getting who I want.’”). The purpose of a contemporaneous objection “is to
promote fair trial by precluding a party from sitting idly by and appearing to
assent to an offer of evidence or ruling by the court only to cry foul when the
outcome goes against him.” Purifoy v. State, 821 N.E.2d 409, 412 (Ind. Ct. App.
2005) (citation and quotation marks omitted), trans. denied. The
contemporaneous objection rule requires objections be voiced in time “so that
harmful error may be avoided or corrected and a fair and proper verdict will be
secured.” Id.Court of Appeals of Indiana | Memorandum Decision 55A01-1605-CR-1022 | July 26, 2017 Page 7 of 14
[19] Here, Gouldsmith contends that he satisfied the exhaustion rule. Gouldsmith
notes that he used all his peremptory challenges against venirepersons, some of
whom were individuals against whom he lodged for-cause challenges that the
trial court denied, but that he had exhausted his peremptory challenges so that
an objectionable juror—venireperson forty—was seated. The State, on the
other hand, argues that Gouldsmith did not properly preserve this issue for
appeal because he “failed to make a record in the trial court that he had
exhausted his allotment of peremptory challenges and was therefore forced to
accept Juror forty by the trial court’s ruling on his challenge for cause.”
Appellee’s Br. P. 13.
[20] We agree with the State. Gouldsmith did not make an appropriate record. The
record does not reflect any indication that, when the trial court seated
venireperson forty on the jury, Gouldsmith made any objection or provided
other notice to the court that he had extinguished his peremptory strikes, that he
would use such strike on venireperson forty if he had any remaining, and that
he therefore was being forced to go to trial with an objectionable juror. Thus,
though he contends that he had extinguished his peremptory challenges, he did
not make a record of that extinguishment by lodging an objection to the fact
that he was being forced to go to trial with objectionable jurors. As in Merritt,
765 N.E.2d at 1238, Gouldsmith has waived appellate review of the trial court’s
denial of his for-cause challenges.
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Terms of Probation
[21] Gouldsmith’s second contention on appeal is that the trial court abused its
discretion in setting the terms of his probation. Trial courts have broad
discretion in establishing conditions of probation to safeguard the general public
and to create law-abiding citizens. Patton v. State, 990 N.E.2d 511, 514 (Ind. Ct.
App. 2013). “Conditions of probation should effectuate the supervision
required to achieve probation goals and, therefore, must be functionally and
rationally related to the probationer’s rehabilitative needs and to society’s
interests.” Id. We will only set aside a trial court’s terms of probation when the
court has abused its discretion. Id. An abuse of discretion occurs when the
decision is clearly against the logic and effect of the facts and circumstances
before it, or the reasonable, probable, and actual deductions to be drawn
therefrom. Id. (citation and quotation marks omitted).
[22] Here, Gouldsmith lodged timely objections to several of the conditions of
probation that the trial court imposed, and he challenges those conditions of
probation on appeal. Gouldsmith identifies as flawed terms 12 and 17 of his
probation. Term 12 provides:
You shall not possess obscene matter as defined by IC 35-49-2-1
or child pornography as defined in 18 U.S.C. § 2256(8), including
but not limited to: videos, magazines, books, DVD’s, and
material downloaded from the Internet. You shall not visit strip
clubs, adult bookstores, motels specifically operated for sexual
encounters, peep shows, bars where partially nude or exotic
dancers perform, or businesses that sell sexual devices or aids.
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(App’x Vol. II at 56.) Term 17 provides, “You shall not engage in a sexual
relationship with any person who has children under the age of 16 years unless
given permission by the court and your treatment provider.” (Id.)
[23] Gouldsmith contends that these provisions of the probation order impermissibly
infringe on one or another of his constitutional rights. However, “conditions of
supervision may restrict a probationer’s activities ‘substantially beyond the
ordinary restrictions imposed by law on an individual citizen.’” Patton, 990
N.E.2d at 515. Probation conditions “may impinge upon a probationer’s right
to exercise an otherwise constitutionally protected right because ‘probationers
simply do not enjoy the freedoms to which ordinary citizens are entitled.’” Id.
(quoting Purdy v. State, 708 N.E.2d 20, 22 (Ind. Ct. App. 1999)). When a
defendant challenges a term of probation as unduly intruding upon a
constitutional right, we review that claim by means of a balancing test that
looks to the following three factors: 1) the purpose to be served by probation; 2)
the extent to which constitutional rights enjoyed by law-abiding citizens should
be enjoyed by probationers; and 3) the legitimate needs of law enforcement. Id.Term 12
[24] Gouldsmith identifies term 12 as suffering several infirmities. We find some of
Gouldsmith’s contentions well-founded, and others less so.
[25] Gouldsmith correctly observes that this Court has found as unconstitutionally
vague a prohibition upon visiting “businesses that sell sexual devices or aids.”
Collins v. State, 911 N.E.2d 700, 713 (Ind. Ct. App. 2009), trans. denied. In
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Collins, this Court held that that language was vague enough to include
establishments like drug stores, and remanded the trial court’s order for
clarification. Id. The same language used in Collins was used in Gouldsmith’s
probation order.
[26] The State attempts to salvage this language by placing it in context with other
businesses listed in term 12, which lists adult bookstores, establishments
employing exotic dancers, and other such locations. The State argues that the
intent of the provision is clear: the purpose is to preclude Gouldsmith from
visiting establishments related to sexual arousal and gratification. Yet the
provision at issue here uses the same language as in Collins, together with the
word “or”: “or businesses that sell sexual devices or aids.” (App’x Vol. II at
56.) The word “or” is disjunctive, and does not make the words that follow
dependent upon the words that precede the preposition for plain meaning. See,
e.g., Curtis v. State, 937 N.E.2d 868, 872 (Ind. Ct. App. 2010) (noting that “or”
and “and” are distinct terms, and “or” generally indicates the disjunctive).
“Or” continues to retain a disjunctive meaning, and the challenged language
related to businesses selling sexual aids has already been held to be
unconstitutionally vague. The State suggests that, given the holding in Collins
and the disjunctive language of the probation condition, we should read the
clause in context as prohibiting visits to “businesses that [predominantly] sell
sexual devices or aids.” (Appellee’s Br. at 20.) We decline the State’s
invitation to rewrite the terms of a probation provision that this Court has
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already found to be vague. The State’s argument is unpersuasive, and, like the
Collins Court, we reverse this portion of the probation order for clarification.
[27] Gouldsmith also challenges the portion of term 12 that prohibits him from
patronizing such businesses as strip clubs, motels operated for engaging in
sexual activity, and adult bookstores. Gouldsmith contends that this restriction
is “overly broad and unduly burdensome and intrudes upon [his] right of
association” (Appellant’s Br. at 26), and infringes upon his “constitutional
protection to personal decisions relating to marriage, procreation,
contraception, family relationships, child rearing, and education.” Lawrence v.
Texas, 539 U.S. 558, 574 (2003).
[28] We disagree. The purpose of this condition of Gouldsmith’s probation is to
manage some facets of his sexual conduct, for which he has been subjected to
multiple criminal convictions and required to register as a sex offender. The
core rights protected by the Fourteenth Amendment, as expressed in Lawrence,
are fundamental personal choices related to family, relationships, and
childbirth. See id. (observing that “[p]ersons in a homosexual relationship may
seek autonomy for these purposes” and striking as unconstitutional a criminal
statute against sodomy); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S.
833, 851 (1992) (reiterating the recognition of autonomy in personal decisions
related to marriage and contraception as “central to personal dignity and
autonomy”). Gouldsmith, however, does not articulate how the ability to see
nude dancers or to buy pornographic videos is central to his choices concerning
family relationships or personal dignity. Further, the State notes that
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Gouldsmith’s conduct in this case involved accessing and viewing videos and
images of his victim, suggesting that a restriction on Gouldsmith’s access to and
consumption of sexually-related media is related to law enforcement needs. We
accordingly find no error in this portion of term 12 that prohibits Gouldsmith’s
patronizing of adult bookstores, strip clubs, and the like.
Term 17
[29] We turn now to the other probation condition Gouldsmith challenges, term 17.
That term prohibits Gouldsmith from having a sexual relationship with another
person who has children under sixteen years of age without Gouldsmith having
obtained prior permission from the court and his treatment provider.
Gouldsmith again contends that this probation condition violates his
constitutional rights as articulated in, inter alia, Lawrence and Casey. Gouldsmith
acknowledges that a court may properly impose reasonable conditions of
probation that restrict a probationer’s access to children. See McVey v. State, 863
N.E.2d 434, 449 (Ind. Ct. App. 2007) (noting that “probation conditions that
reduce the potential for access to children are reasonable”), trans. denied.
However, he contends that the condition at issue here is unduly restrictive of his
rights and is vague.
[30] We agree with Gouldsmith that the condition is overly broad, but on a different
basis from that which he presents. The probation condition at issue provides
that Gouldsmith may not engage in a “sexual relationship” with someone who
has a child aged sixteen years or less without prior permission from the court
and a treatment provider. (Appellant’s App’x at 56.) This provision would
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encompass a wide variety of relationships, notably an incidental or one-time
sexual encounter with another adult when Gouldsmith would and could have
no knowledge of the person’s family status or of their children. Because it lacks
sufficient clarity to put Gouldsmith on notice of what circumstances he should
avoid, the provision is overly broad. We accordingly remand for clarification of
this provision.
Conclusion
[31] Gouldsmith has waived review of the trial court’s denial of his for-cause
challenges to certain members of the jury venire. Portions of the probation
conditions imposed upon Gouldsmith are overly broad, and we accordingly
remand the case for clarification of these provisions.
[32] Affirmed in part, reversed in part, and remanded.
Vaidik, C.J., and Robb, J., concur.
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