D.B. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 25, 2016
• Docket: 49A02-1512-JV-2217
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 25 2016, 6:05 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew D. Anglemeyer Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana J. T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

D. B., October 25, 2016 Appellant-Respondent, Court of Appeals Case No. 49A02-1512-JV-2217 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Marilyn Moores, Appellee-Petitioner. Judge The Honorable Gary Chavers, Magistrate Trial Court Cause No. 49D09-1508-JD-1490

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JV-2217 | October 25, 2016 Page 1 of 9 STATEMENT OF THE CASE

[1] Appellant-Defendant, D.B., appeals his delinquency adjudication for two

Counts of rape, Level 3 felonies if committed by an adult, Ind. Code § 35-42-4-

1.

[2] We affirm.

ISSUE

[3] D.B. raises one issue on appeal, which we restate as: Whether the trial court

abused its discretion in admitting certain evidence.

FACTS AND PROCEDURAL HISTORY

[4] In the summer of 2015, D.B. and S.M. were sophomores at Ben Davis High

School in Indianapolis, Indiana. Fifteen-year-old D.B. was a wide receiver for

the school’s football team. Sixteen-year-old S.M. was the school’s football team

manager and responsible for the players’ equipment and uniforms. S.M.

became acquainted with D.B. in her freshman year and they regularly

interacted during football practice. At the end of football practice on August

11, 2015, D.B. took S.M.’s phone and messaged “Heyy” to his own phone

through an instant messaging software application known as “Kik.” (State’s

Exh. 3, p.1). Later that evening, the two exchanged flirtatious messages and

had three Facetime (i.e., video chat) conversations. The following day, on

August 12, 2015, after football practice, D.B., S.M., and other friends,

remained in the trainer’s room to talk and play. After everyone had left, S.M.

and D.B. walked together, taking S.M.’s usual route home. D.B. stopped Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JV-2217 | October 25, 2016 Page 2 of 9 behind the bleachers near the parking lot, and asked S.M. to come close. S.M.,

who was talking with another person on her cell phone, stated no and began

laughing. At that point, D.B. grabbed S.M. by the belt and he pulled her

towards him. S.M. put her phone away, and D.B. tried to undo her belt but

S.M. grabbed D.B.’s hand, and she stated no. Despite S.M.’s refusal, D.B.

reached down S.M.’s pants and penetrated S.M.’s vagina with his finger. S.M.

was shocked. According to S.M., they were no longer standing by the

bleachers, they were standing between two cars in the parking lot. D.B. pulled

down S.M.’s pants, turned her around, and forced her to bend over against one

of the vehicles. D.B. proceeded to penetrate S.M.’s vagina with his penis;

however, because S.M. tensed up, it made it difficult for D.B. to penetrate her

vagina. In an attempt to penetrate her vagina, D.B. spread S.M.’s vagina with

his two fingers, and inserted his penis. To some extent, D.B. succeeded in

penetrating S.M.’s vagina, by moving past her vaginal lips. According to S.M.,

D.B. tried to penetrate her vagina “too many” times. (Tr. p. 59). It hurt S.M.

After several attempts, D.B. gave up trying to penetrate S.M.’s vagina, pulled

up his pants and informed S.M. that his mother had arrived to pick him up.

S.M. also pulled up her pants, hugged D.B. goodbye, and walked home.

[5] Nearby, and from inside the high school, by Door 12, custodian Michael Short

(Custodian Short) was working, and when he looked outside into the parking

lot, he saw what he would describe as a sex act between a male and a female,

and after the act, he saw them pull up their pants, hug, and leave. Custodian

Short was able to identify the male in the parking lot as D.B.

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JV-2217 | October 25, 2016 Page 3 of 9 [6] S.M. cried on her way home. When she arrived, S.M. went straight to her

bedroom. S.M. was in pain, she could not sit down, and when she put on her

pajamas, she noticed blood in her underwear. S.M. contacted her friend E.H.,

who advised her how to clean up the bloody underwear. That same evening,

S.M. texted D.B. via Kik where she stated that she did not want the sex act to

happen, reminded him that she had told him “no,” and that she could not even

sit down because of the pain. (Tr. p. 71). D.B. wrote back “L-O-L,” which

means “lots of laughs.” (Tr. p. 72). D.B. told S.M. to lie to her family that she

got injured. (Tr. p. 72). S.M. expressed to D.B. that she felt violated, and D.B.

wrote back, “Awh.” (Tr. p. 72). S.M. additionally texted D.B. that she told

him to stop, and D.B. responded by stating, “So?” (Tr. p. 73). The following

day, S.M. reported the incident to a school official, who, in turn, contacted the

police. When the police arrived, they interviewed S.M., and S.M. was later

taken to the hospital where she was examined by nurse Cantana Phillips (Nurse

Phillips). Upon examining S.M., Nurse Phillips found a lot of redness and

abrasions to the exterior of S.M.’s vagina, as well as abrasions on each side of

her vaginal walls. S.M. “verbalized that she was in pain.” (Tr. p. 191).

[7] Shortly after S.M. reported the incident to a school official, the dean of

students, Dean Stanton (Dean Stanton), summoned D.B. and informed him of

the rape allegations against him by S.M. D.B. was requested to provide a

written statement of his version of events. On August 19, 2015, D.B. offered a

written response where he reported that it was S.M. who initiated sexual

touching, i.e., D.B. indicated that S.M. hit him in the private area, and he, in

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JV-2217 | October 25, 2016 Page 4 of 9 turn, hit S.M. in the private area. D.B. added that at S.M.’s request, he put his

hand inside S.M.’s pants.

[8] On August 19, 2015, the State filed a petition, alleging D.B. was a delinquent

child because he committed two offenses of rape, which would be Level 3

felonies if committed by an adult. On September 17, 2015, the juvenile court

conducted a fact-finding hearing. S.M., S.M.’s friend—E.H., Custodian Short,

Nurse Phillips, Dean Stanton, and D.B., testified. On September 18, 2015, the

juvenile court found both allegations to be true. On November 25, 2015, the

juvenile court placed D.B. on probation with a suspended commitment to the

Department of Correction. D.B. was placed in the Resolute Treatment Facility

to participate in a sex offense treatment program, and the juvenile court allowed

for D.B.’s transfer into the Polaris Group Home if the Resolute Treatment

Facility agreed with the transfer.

[9] D.B. now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[10] D.B. argues that the juvenile court abused its discretion in admitting

impeachment evidence. Specifically, during cross-examination, the State

introduced evidence of an allegation against D.B., in which a girl had alleged

that D.B. had touched her private area during the previous school year.

[11] The juvenile court has broad discretion in ruling on the admissibility of

evidence. See C.C. v. State, 826 N.E.2d 106, 110 (Ind. Ct. App. 2005), trans.

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JV-2217 | October 25, 2016 Page 5 of 9 denied. We will reverse only upon an abuse of that discretion. Id. An abuse of

discretion occurs if the decision is clearly against the logic and effect of the facts

and circumstances before the court. See Berry v. State, 967 N.E.2d 87, 90 (Ind.

Ct. App. 2012).

[12] On direct examination, by his counsel, D.B. was asked if he had experienced

any other disciplinary problems at school, and he stated, “[N]o, sir.” (Tr. p.

218). Based on that testimony, on cross-examination, the State sought to

impeach D.B. by asking him about a sexual harassment claim in which a girl at

D.B.’s school had alleged that D.B. had touched her private area with his leg.

The juvenile court overruled D.B.’s objection to the State’s questioning about

his prior disciplinary problems.

[13] D.B. contends that although he was suspended for sexually harassing a girl in

2014, he refuted that assertion at his hearing, and the State failed to present

evidence that the allegation was substantiated. Accordingly, D.B. posits that

the sexual harassment allegation was irrelevant and had no tendency to make

S.M.’s allegations of rape more probable.

[14] We initially note that Indiana Evidence Rule 401 provides a liberal standard for

relevancy, and appellate courts review a trial court’s ruling on relevance for an

abuse of discretion. Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011). Relevant

evidence is “evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Id. (quoting Ind. Evidence

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JV-2217 | October 25, 2016 Page 6 of 9 Rule 401). Further, Ind. Evidence Rule 607 provides that the credibility of a

witness may be attacked by any party. Indiana Evidence Rule 616 explicitly

makes “evidence of bias, prejudice, or interest of the witness for or against any

party” relevant and admissible for impeachment purposes, as this evidence can

impact the weight of the witness’s testimony. Id at 27-28. Our supreme court

has stated, however, that Evidence Rule 616 “should be read in conjunction

with Rule 403’s required balancing of probative value against the danger of

unfair prejudice.” Ingram v. State, 715 N.E.2d 405, 407 (Ind. 1999). Evidence

Rule 403 reads, “Although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations of undue delay, or

needless presentation of cumulative evidence.”

[15] Here, D.B. testified that he had not experienced any disciplinary issues at his

school, other than the instant case. D.B.’s testimony left the juvenile court with

the impression that he was an honest person. Given that D.B. had asserted that

it was S.M. who initiated the sexual acts during direct-examination, a focal

point in this case was his credibility as a witness. Therefore, during cross-

examination, the State inquired into D.B.’s suspension in 2014 with regards to a

sexual harassment allegation, so as to show that D.B. was lying when he stated

that he never encountered disciplinary problems at his school. Evidence that he

was not truthful was therefore relevant, and the trial court did not abuse its

discretion in admitting this evidence.

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JV-2217 | October 25, 2016 Page 7 of 9 [16] We further find that the probative value of the evidence was not outweighed by

unfair prejudice. See Evid. R. 403. S.M. provided unequivocal testimony

regarding her sexual encounter with D.B. in August of 2015. S.M. stated that

she and D.B. were walking home, D.B. stopped by the bleacher and pulled her

towards him. D.B. tried to undo her belt but S.M. grabbed D.B.’s hand, and

she stated no. Despite S.M.’s refusal, D.B. reached into S.M.’s pants and

penetrated S.M.’s vagina with his finger. In addition, D.B. pulled down S.M.’s

pants, turned her around, and forced her to bend over against one of the

vehicles. D.B. tried to penetrate S.M.’s vagina with his penis; however, because

S.M. tensed up, it made it difficult for D.B. to penetrate her vagina. At that

point, D.B. spread S.M.’s vagina with his two fingers, and inserted his penis.

D.B. succeeded in slightly penetrating S.M.’s vagina, by moving past her

vaginal lips. That evening, S.M. texted D.B. that she did not want it to happen,

reminded him that she had told him “no,” and told him that she could not even

sit down because of the pain. Other than S.M.’s testimony, the State

introduced corroborating evidence through Nurse Phillips, who conducted the

sexual assault examination indicating redness and abrasions on S.M.’s vaginal

walls which were consistent with non-consensual sex.

[17] Upon review, we are satisfied that, in light of S.M.’s unequivocal testimony

regarding her sexual encounter with D.B., and other corroborating evidence, we

find that there is no substantial likelihood that the evidence of D.B.’s previous

suspension in relation to a sexual harassment allegation contributed to his

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JV-2217 | October 25, 2016 Page 8 of 9 conviction. Accordingly, we conclude that the juvenile court did not abuse its

discretion in admitting the impeachment evidence.

CONCLUSION

[18] Based on the foregoing, we find that the juvenile court properly admitted the

impeachment evidence.

[19] Affirmed.

[20] Bailey, J. and Barnes, J. concur

Court of Appeals of Indiana | Memorandum Decision 49A02-1512-JV-2217 | October 25, 2016 Page 9 of 9