Court of Appeals of Indiana | Memorandum Decision 18A-CR-1528 | April 25, 2019 Page 1 of 12

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.

ATTORNEY FOR APPELLANT

K. Aaron Heifner

HEIFNER LAW INC.

Anderson, Indiana

ATTORNEYS FOR APPELLEE

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 Case No.

18A-CR-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-CR-1528 | April 25, 2019 Page 2 of 12

Case Summary

[1] Erick W. Mack (“Mack”) appeals his convictions of two counts of Child 

Molesting, one as a Class A felony and one as a Level 1 felony.

1

 We affirm.

Issues

[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 replayed; 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 concurrent terms of 

twenty years imprisonment. He now appeals.

 

1

Ind. Code § 35-42-4-3(a)(1).
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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 evidence 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 person 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 an 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, time 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 near 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. 
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evidence could have allowed a reasonable trier of fact to find the defendant 

guilty beyond a reasonable doubt.” Id.

[6] M.A. testified regarding the allegations as follows. She and Mack were at a 

family bonfire and were left alone after her parents went to bed. Mack, who 

had been acting “flirty” and “touchy” with her, told her “he’s ready to see it 

now.” (Tr. Vol. II, pgs. 63, 68). M.A. took down her pants and underwear and 

Mack “touch[ed] between [her] legs with his finger ... for a little bit” before 

they walked 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 suspicions as to his 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, pretrial 
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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 rule 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. at 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.
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Replay of M.A.’s Testimony to the Jury

[10] During deliberations, the jury foreman advised the trial court that the jury 

needed clarification regarding M.A.’s testimony and the time frame of the 

offenses. The trial court advised that, if the jury was 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 prejudicial 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 conferences 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 insufficient to rectify the situation. Mickens v. State, 742 N.E.2d 
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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 position to gauge 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 questioned 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”), with Mack claiming 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. 
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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. At 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, on 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 prejudiced, 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 prevail 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 obligated 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 was 
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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 incourt, pretrial deposition of M.A.’s mother, and this revealed no grounds upon 

which to exclude 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 plans. 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.
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[18] Subsequently, Det. Wright testified that he spoke with Mack on two occasions

but Mack “had a busy 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: Did 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 deployed 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 defendant. Evans v. State, 643 

N.E.2d 877, 879 (Ind. 1994). 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 evidentiary 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 attorney 
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take Det. Wright’s call or that Mack refused to speak. The record shows

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 assuring 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 Miranda3

warnings when Det. Wright attempted to contact him. And Mack did not 

testify and offer an 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).
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[21] Affirmed.

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