Court of Appeals of Indiana | Memorandum Decision 18A

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), 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.

A TTORNEY FOR A PPELLANT K. Aaron Heifner H EIFNER L AW I NC

. Anderson, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Erick W. Mack , Appellant

- Defendant,

v.


### State of Indiana , Appellee

- Plaintiff

. April 25, 2019 Court of Appeals Ca se No. 18A

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- 1528 Appeal from the Madison Circuit Court The Honorable Thomas Newman, Jr., Judge Trial Court Cause No. 48C03

- 1702

- FA

- 381

Bailey , Judge
.Court of Appeals of Indiana | Memorandum Decision 18A

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# Case Summary

[1] Erick W. Mack (“Mack”) appeals his convictions of two counts of Child Molest ing , one as a Class A felon y and one as a Level 1 felony

. 1 We affirm.



# Issue s

[2] Mack presents three consolidated and restated issues for our review:

I. Whether sufficient evidence supports his convictions;

II. Whether the trial court abused its discretion in granting the jury’s request to have the victim’s testimony repla yed; and

III. Whether Mack was entitled to a mistrial. 

# Facts and Procedural History

[3] On February 10, 2017, Mack was charged with molesting M.A., the teenage daughter of one of Mack’s closest friends. The State alleged that Mack had engaged M.A. in sexual activity several years earlier, when she was age thirteen. Mack was tried before a jury on May 1, 2018 and convicted as charged. On May 18, 2018, Mack was sentenced to two concurre nt terms of twenty years imprisonment. He now appeals.

1 Ind. Code § 35

- 42

- 4

- 3(a)(1).Court of Appeals of Indiana | Memorandum Decision 18A

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# Discussion and Decision Sufficiency of the Evidence

[4] To convict Mack of Child Molesting, as charged, the State had to prove beyond a reasonable doubt that he , being twenty

- one years of age or older, knowingly or intentionally performed or submitted to sexual intercourse or other sexual conduct with M.A., a child under fourteen years of age

. 2 I.C. § 35

- 42

- 4

- 3; App. Vol. II, pg. 75. The State presented no evid ence of sexual intercourse between Mack and M.A. Pursuant to Indiana Code Section 35

- 31.5

- 2

- 221.5, “other sexual conduct” is an act involving a sex organ of one person and the mouth or anus of another person or penetration of the sex organ or anus of a pe rson by an object

.

[5] Upon a challenge to the sufficiency of the evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the verdict. McHenry v. State , 820 N.E.2d 124, 126 (Ind. 2005). We do not reweigh the evidence or judge the credibility of witnesses. Id. An appellate court must affirm “if the probative evidence and reasonable inferences drawn from the

2 The State alleged that Mack committed an offense on or between August 26, 2013 and June 13, 2014 and committed a n offense on or between July 1, 2014 and August 25, 2014 , apparently to reflect the change of category of offense , effective July 1, 2014, from a Class A felony to a Level 1 felony

. Generally, t ime is not of the essence in the crime of child molesting. Gaby v. State , 949 N.E.2d 870, 876 (Ind. Ct. App. 2011). The exact date becomes important only in limited circumstances, including when the victim’s age at the time of the offense falls at or nea r the dividing line between classes of felonies. Id. M.A. turned fourteen on August 26, 2014. It was incumbent upon the State to prove that the offenses occurred before she reached age fourteen.Court of Appeals of Indiana | Memorandum Decision 18A

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evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reaso nable doubt.” Id.

[6] M.A. testified regarding the alleg ations as follows. S he and Mack were at a family bonfire and were left alone after her parents went to bed. Mack, who had been acting “ flirt y” and “touchy” with her, told her “he’s ready to see it

now. ” (Tr. Vol. I I , pgs. 63, 68). M.A. took down her pants and und erwear and Mack “touch[ed] between [her] legs with his finger

... for a little bit” before they w alked around the corner of the house and Mack “did oral on [her].” Id.
at 68

- 69. M.A. specified that this meant Mack “put his tongue between [her] legs.” Id. at 70. They proceeded into the house and sat on a love seat, where M.A. “performed a hand job on [Mack].” Id. At a separate time, Mack was driving his vehicle and M.A. was a passenger when Mack suggested that M.A. could get naked. M.A. took down her jeans and Mack placed his “finger into [her ] vagina multiple times.” Id. at 74. M.A. testified that she was thirteen
years old when these events occurred

.

[7] M.A.’s mother also testified that M.A . had been thirteen when she confronted Mack about her susp icions as to h is interest in her daughter and Mack stopped visiting the family. M.A.’s mother further testified that, after the police investigation began, Mack had called her to say he was “sorry that it happened” and “sorry for the whole mess that happened to our family.” Id. at 139.

[8] Mack asks that we discard M.A.’s testimony under the incredible dubiosity rule because of perceived discrepancies between her investigative interview, pretrialCourt of Appeals of Indiana | Memorandum Decision 18A

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deposition, and trial testimony

. The “incredible dubiosity rule , ” which impinges on the jury’s responsibility to judge the credibility of witnesses, is of limited scope

. Moore v. State , 27 N.E.3d 749, 755 (Ind. 2015). “First, the application of this rul e has been restricted to cases where there is a single testifying witness.” Id. at 757. “The second factor is whether the witness’ testimony is inherently improbable , contradictory, or coerced, resulting in the testimony being incredibly dubious.” Id. a t 758. Finally, “[i]n a case where there is circumstantial evidence of an individual’s guilt, reliance on the incredible dubiosity rule is misplaced.” Id. at 759.

[9] Here, M.A. testified unequivocally that , when she was thirteen years old, Mack had used his mouth and fingers to touch her vagina

. M.A.’s mother provided some corroborative testimony that she voiced suspicion and Mack never visited the family thereafter (although they had been extremely close in the past) and Mack called to offer an apology of sorts. This was not a case of a sole witness offering dubious testimony; M.A.’s earlier lack of specificity or some discrepancy between pretrial statements and trial testimony is not a basis for application of the incredible dubiosity rule. See Corbett v . State , 764 N.E.2d 622, 626 (Ind. 2002) (recognizing that inconsistencies between a police statement and trial testimony does not equate to uncorroborated “ testimony inherently contradictory as a result of coercion”). Sufficient evidence supports Mack’s convictions.Court of Appeals of Indiana | Memorandum Decision 18A

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## Replay of M.A.’s Testimony to the Jury

[10] During deliberations, the jury fore man advised the trial court that the jury needed clarification regarding M.A.’s testimony and the time frame of the offenses

. T he trial court advised that , if the jury w as requesting to rehear M.A.’s testimony, it would be replayed in its entirety and the foreman responded that the replay “will help us

. ” (Tr. Vol. II. Pg. 232.) Mack now argues that the replay of testimony was pr ejudicial to him because the replay included bench conferences and the jury was unable to examine M.A.’s demeanor

.

[11] The State responds

– and our examination of the transcript leads us to agree

– that the record does not support Mack’s assertion that bench c onferences were included in the replay. As for the contention that the jurors were unable to assess M.A.’s demeanor during the replay , we agree with Mack that an audio replay is not equivalent to live testimony. Nonetheless , Indiana Code Section
34

- 36

- 1

- 6 requires a trial court to replay testimony when the jury expresses disagreement as to any part of the testimony and, even when the statute is not triggered, a court has discretion to replay testimony. Parks v. State , 921 N. E.2d 826, 831 (Ind. Ct. App. 2010) , trans. denied

. Mack’s cursory claim of prejudice falls short of demonstrating that the trial court abused its discretion.


## Mistrial

[12] A mistrial is an extreme remedy appropriate only when other remedial measures are insuf

ficient to rectify the situation. Mickens v. State , 742 N.E.2dCourt of Appeals of Indiana | Memorandum Decision 18A

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927, 929 (Ind. 2001). A trial judge has discretion in determining whether to grant a mistrial and his or her decision is afforded great deference because the trial judge ‘ “is in the best posi tion to g a uge the surrounding circumstances of an event and its impact on the jury.” ’ Id. ( quoting Gregory v. State , 540 N.E.2d 585, 589 (Ind. 1989)). To prevail on appeal from the denial of a motion for mistrial, an appellant must establish that the que stioned conduct ‘“was so prejudicial and inflammatory that he was placed in a position of grave peril to which he should not have been subjected.” ’ Id. The gravity of the peril is determined by consideration of the misconduct’s probable persuasive effect on the jury’s decision, rather than the impropriety of the conduct. Id.

[13] Mack first moved for a mistrial before trial commenced , when he learned that the State would be introducing photographs relevant to establishing a timeline

. His second motion for a mistrial was made during testimony by Detective Brett Wright (“Det. Wright”), w ith Mack claim ing that the State had violated a motion in limine. We examine each incident in turn.

[14] Photographs

. Immediately prior to the commencement of trial, the State provided Mack with copies of photographs that the State had obtained from M.A.’s mother a few days earlier

. The photographs were from April 26, 2014, purportedly representing the last time that M .A .’s mother saw Mack. Mack asked the trial court to exclude the photographs because it was “too late for discovery.” (Tr. Vol. II., pg. 20.) The trial court declined to exclude the evidence and denied Mack’s motion for a continuance. However, the trial court permitted Mack to conduct a pretrial deposition of M.A.’s mother.Court of Appeals of Indiana | Memorandum Decision 18A

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[15] M.A.’s mother explained that she formerly believed the photographs had been deleted and was under this impression when deposed by Mack. However, she had recently found a camera with a “sim card.” Id. at 37. A t some point, she had told a deputy prosecutor about finding the camera , but she did not immediately produce photographs from the camera memory card

. Ultimately, M.A.’s mother had “gone to the CVS on Sunday [before trial] ” and printed photographs. Id. at 39. When she acknowledged that she had, o n the Thursday before trial, tried to produce photographs “at the courthouse” without success, Mack moved for a mistrial. Id. at 40. The State argued that Mack was not unduly pr ejudiced , having known of the possibility the photographs existed because it was mentioned in the probable cause affidavit. Mack responded that there was a “potential Brady violation.” Id. at 46. The trial court denied the motion for a mistrial.

[16] “To pre vail on a Brady claim , a defendant must establish: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence was material to an issue at trial.” Minnick v.
State , 698 N.E.2d 745, 755 (Ind. 1998) (citing Brady v. Maryland , 373 U.S. 87 (1963))

. Brady deals with suppression of material evidence favorable to the defense

. Mack does not make a claim that material evidence favorable to him was suppressed. Rather, he claims that the State was obl igated to produce the photographs to him “about a week or more prior to trial, at which time, the Defense could have reviewed the images and determined if they needed a continuance due to the newly acquired evidence ” and he asserts that he wasCourt of Appeals of Indiana | Memorandum Decision 18A

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required to “alter [his ] trial strategy on the day of trial.” Appellant’s Brief at 27. At bottom, Mack voiced a discovery complaint. The better practice would have been for the State to supplement its discovery responses immediately upon learning that photographic images would be available. But Mack does not explain how a continuance would have benefited him. He conducted an in

court, pretrial depos ition of M.A.’s mother , and this revealed no grounds upon which to exclud e the photographs

. Mack was not placed in grave peril by the delay in disclosure to merit a mistrial

.

[17] Motion in Limine

. Prior to the State’s elicitation of testimony from Det. Wright,
Mack ’s counsel stated that he wished to make an oral motion in limine. Defense counsel advised the court that he believed Det. Wright would offer testimony about his three attempts to contact Mack for an interview

. On the first two occasions, Mack spoke with Det. Wright and stated that he was busy with work and travel plan s. At the third attempted contact, defense counsel answered the call and told Det. Wright “[Mack]’s not going to talk to you.” (Tr. Vol. II, pg. 127.) The deputy prosecutor agreed with defense counsel that there should be no reference to Mack obtaining legal representation or to a refusal to talk. She described her intent to elicit questions to establish: Det. Wright called Mack (without telling him the reason for the call) , Mack responded that he was very busy and “on the road,” on a third call, Det. Wright left a voicemail, and , ultimately , he was not able to make contact

. The trial court granted the oral motion in limine “as to the third one.” Id. at 129.Court of Appeals of Indiana | Memorandum Decision 18A

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[18] Subsequently, Det. Wright testified that he spoke with Mack on two occasions but Mack “had a b usy work schedule” and it “wasn’t convenient at that time” to conduct an interview. Id. at 160. Det. Wright further testified that he told Mack “give me a call” when his schedule became less hectic. Id. Then the following exchange took place:

State: D id he reach out to you with some availability?
Det. Wright: He didn’t.
State: Ultimately were you able to sit down and speak with the defendant?
Defense: Objection.

Id. at 161. During the ensuing bench conference, Mack argued that the State
had deploye d an evidentiary harpoon by making reference to a third contact, and he requested a mistrial. An “evidentiary harpoon” occurs when a prosecutor places inadmissible evidence before the jury for the deliberate purpose of prejudicing the jurors against a def endant. Evans v. State , 643 N.E.2d 877, 879 (Ind. 199 4). To prevail, the defendant must show both that the prosecutor acted deliberately and that the evidence was inadmissible. Id. The trial court concluded that the State had not deployed an evidentiar y harpoon and denied the motion for a mistrial. We agree with the trial court. The State did not propound questions to elicit testimony either that Mack had an attorneyCourt of Appeals of Indiana | Memorandum Decision 18A

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take Det. Wright’s call or that Mack refused to speak. The record s hows neither a violation of the motion in limine or an evidentiary harpoon.

[19] Alternatively, Mack argues that the prosecutor committed a Doyle violation. See Doyle v. Ohio , 426 U.S. 610 (1976). “ In Doyle , the Court held that under the Fourteenth Amendment a prosecutor may not use the silence of a defendant who’s been arrested and Mirandized to impeach the defendant.” Trice v. State , 766 N.E.2d 1180, 1182 (Ind. 2002). Doyle rests on the fundamental unfairness of implicitly a ssuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial. Teague v. State , 891 N.E.2d 1121, 1124 (Ind. Ct. App. 2008) (citing Wainwright v. Greenfield , 474 U.S. 284, 291 (1986)). Here, however, Doyle has no application. Mack was not under arrest and had not received Miranda 3 warnings when Det. Wright attempted to contact him. And Mack did not testify and offer a n explanation subject to impeachment. Doyle provides Mack with no grounds for a mistrial.



# Conclusion

[20] Sufficient evidence supports Mack’s convictions. He did not demonstrate an abuse of discretion by the trial court in replaying victim testimony. He did not demonstrate his entitlement to a mistrial.

3 384 U.S. 436 (1966).Court of Appeals of Indiana | Memorandum Decision 18A

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[21] Affirm ed.

Riley, J ., and Pyle, J., concur

.