Dennis Winfert v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 22, 2017
• Docket: 49A04-1706-CR-1422
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 22 2017, 6:17 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Susan D. Rayl Curtis T. Hill, Jr. Smith Rayl Law Office, LLC Attorney General of Indiana Indianapolis, Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dennis Winfert, November 22, 2017 Appellant-Defendant, Court of Appeals Case No. 49A04-1706-CR-1422 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Marc T. Appellee-Plaintiff. Rothenberg, Judge Trial Court Cause No. 49G02-1602-F3-7567

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1422 | November 22, 2017 Page 1 of 10 Statement of the Case [1] Dennis Winfert appeals his conviction, following a jury trial, for sexual

misconduct with a minor, as a Level 4 felony. Winfert raises two issues for our

review, which we restate as follows:

1. Whether the trial court abused its discretion and violated Winfert’s Fifth Amendment right to testify and his Sixth Amendment right to present a defense when it excluded a statement made by Winfert that a witness was not telling the truth.

2. Whether the trial court abused its discretion when it excluded extrinsic evidence of a witness’ prior inconsistent statement.

[2] We affirm.

Facts and Procedural History [3] A.A. was born in January of 2002 to J.A. (“Mother”). In 2008, Winfert and

Mother began a romantic relationship. In 2013, they began to live together

with A.A. and Winfert’s children. On February 17, 2016, Winfert came into

A.A.’s room and pulled her pants down. Winfert “told [A.A.] to shut up and

he put his hand on [her] mouth.” Tr. at 12. Winfert then had sexual

intercourse with A.A. After Winfert left her room, A.A. showered, changed

her clothes, and threw the underwear and pajamas she had been wearing into

the trash. The next day, A.A. told a counselor at her school what Winfert had

done. The counselor called the Indiana Department of Children Services

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1422 | November 22, 2017 Page 2 of 10 (“DCS”), and a DCS family case manager went to A.A.’s school to interview

her.

[4] Thereafter, the DCS family case manager took A.A. to the Center of Hope at

Riley Hospital for Children where pediatric nurse Barbara Mulvaney examined

her. During the examination, Mulvaney observed an area of redness and

swelling on A.A.’s labia minora, which, Mulvaney concluded, was indicative of

possible trauma. Mulvaney then collected a total of eight internal and external

genital swabs from A.A. Those items were submitted for DNA testing. On at

least four of the swabs, the forensic scientist with the Indianapolis/Marion

County Forensic Services Agency found two contributors of DNA, A.A. and

another person, but there was an insufficient amount of DNA for additional

DNA testing. The forensic scientist then performed YSTR testing, which looks

for Y chromosomes, on all eight swabs. Those tests showed the presence of

YSTR DNA in all eight samples. The forensic scientist then compared the

YSTR DNA found in the samples to a sample of DNA that officers collected

from Winfert. The YSTR DNA profile found in the samples was consistent

with the YSTR DNA profile of Winfert. Based on this, “Winfert and all of his

male patrilineal related relatives” could not be excluded as potential

contributors of the sample. Id. at 186. Further, the forensic scientist estimated

that one in 621 individuals would have the same YSTR DNA profile.

[5] On February 29, 2016, the State charged Winfert with rape, as a Level 3 felony;

sexual misconduct with a minor, as a Level 4 felony; and battery, as a Class A

misdemeanor. The trial court held a jury trial on May 22 and 23, 2017.

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1422 | November 22, 2017 Page 3 of 10 Mother testified during the State’s case-in-chief. During his cross-examination

of Mother, Winfert questioned her about A.A.’s behavioral problems at school.

The following colloquy occurred:

Q. Is it your understanding that A.A.[,] during this time period of February 17, 18, of 2016, was having some disciplinary problems at school?

A. No.

Q. Do you recall giving a statement at the child advocacy center on February the 18[th], of 2016? With Detective Nicolle Flynn present?

A. Was that a lady detective?

Q. Yes.

A. Yes, I remember.

Q. In fact she’s sitting right here.

A. Yes.

Q. I would like to show you what you said on that day and let you read it. Page six.

A. A.A. was never in trouble at school. She struggled with math but that was all. Yes, A.A. is bright. She does well in school. Is that all?

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1422 | November 22, 2017 Page 4 of 10 Q. Did you say that—on that date that A.A. was in trouble and Dennis tried to help her when she failed eighth grade? I think the interpreter was unsure of the word failed.

A. No, that’s not true.

* * *

A. A.A. has never failed in school. Never.

Q. Do you recall being asked, did she get in trouble last night and answering, yes, she was smarting off, not doing well in school?

A. I remember that day but I did not say that. And I wasn’t talking about the school situation.

Tr. at 69-70.

[6] The State also called Detective Nicolle Flynn as a witness. Winfert cross-

examined her, and the following colloquy occurred:

Q. Okay. And . . . during your investigation you took a statement from . . . A.A.’s mother, correct?

Q. And [Mother] told you that A.A. had been in trouble at school didn’t she?

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1422 | November 22, 2017 Page 5 of 10 Tr. at 126. The State then objected to the statement on hearsay grounds. The

court sustained the objection, struck the question, and instructed the jury to not

consider the statement in any way.

[7] During Winfert’s case-in-chief, Winfert testified. During his testimony, his

attorney asked him why he had decided to testify. In response, Winfert stated,

“I felt I should go ahead because [Mother] did not tell the truth about a lot

things and I just wanted—.” Tr. at 207. The State objected to the testimony,

and the court sustained the objection.

[8] The jury found Winfert guilty of sexual misconduct with a minor, as a Level 4

felony, but acquitted him on the other two charges. The trial court entered

judgment of conviction accordingly and sentenced Winfert to eight years, with

five years executed in the Indiana Department of Correction, two years on

home detention, and one year on sex-offender probation. This appeal ensued.

Discussion and Decision Issue One: Winfert’s Testimony

Winfert first claims that the trial court abused its discretion when it excluded his

testimony that Mother had lied during her testimony, and he maintains that this

exclusion violated his Fifth and Sixth Amendment rights. The Indiana

Supreme Court has recently provided that when ruling on the admissibility of

evidence when a constitutional violation is alleged, “‘the proper standard of

appellate review is de novo.’” Ackerman v. State, 51 N.E.3d 171, 177 (Ind. 2016)

(quoting Speers v. State, 999 N.E.2d 850, 852 (Ind. 2013)).

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1422 | November 22, 2017 Page 6 of 10 [9] Again, Winfert testified during his case-in-chief. During his testimony, his

attorney asked him why he had decided to testify. In response, Winfert stated:

“I felt I should go ahead because [Mother] did not tell the truth about a lot

things and I just wanted—.” Tr. at 207. The State objected and asserted that

“[a]nother witness cannot testify as [to] the truthfulness of another witness.” Id.

The court sustained the objection and struck that portion of the testimony.

[10] Winfert asserts that he “was the defendant, not a witness, in this case and he

had a Fifth Amendment right to testify and tell the jury that a witness against

him lied about facts of which he had personal knowledge, as well as a Sixth

Amendment right to present his defense.” Appellant’s Br. at 12. In other

words, Winfert contends that Indiana Rule of Evidence 704(b) only applies to

witnesses, and a defendant is not a “witness” for purposes of the rule. Winfert

contends further that “[t]here is no evidentiary rule, including Rule 704,

forbidding a defendant from testifying as to the truthfulness of a witness.” Id. at

14. However, Winfert does not cite any legal authority to support his

contentions on this issue.

[11] Indiana Rule of Evidence 704(b) states that “[w]itnesses may not testify to

opinions concerning intent, guilt, or innocent in a criminal case; the truth or

falsity of allegations; whether a witness has testified truthfully; or legal

conclusions.” (Emphasis added.) And “‘[n]o witness, whether lay or expert, is

competent to testify that another witness is or is not telling the truth.’” Bradford

v. State, 960 N.E.2d 871, 875 (Ind. Ct. App. 2012) (quoting Angleton v. State, 686

N.E.2d 803, 812 (Ind. 1997)).

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1422 | November 22, 2017 Page 7 of 10 [12] A witness is defined as “someone who gives testimony under oath or

affirmation (1) in person, (2) by oral or written deposition, or (3) by affidavit.”

Black’s Law Dictionary 1838 (10th ed. 2014). It is undisputed that Winfert

gave testimony under oath and in person during his trial. As such, Winfert was

a witness. Because Winfert was a witness at his trial, Indiana Rule of Evidence

704(b) applies to his testimony. Further “‘[t]he accused does not have an

unfettered right to offer testimony that is incompetent, privileged, or otherwise

inadmissible under standard rules of evidence.’” Schermerhorn v. State, 61

N.E.3d 375, 379 (Ind. Ct. App. 2016) (quoting Taylor v. Illinois, 484 U.S. 400,

410 (1988)), trans denied. Because Indiana Rule of Evidence 704(b) applied to

Winfert during his testimony, he was prohibited from testifying that Mother did

not tell the truth during her testimony. The trial court did not violate Winfert’s

Fifth Amendment right to testify or his Sixth Amendment right to present a

defense when it sustained the State’s objection and struck his testimony that

Mother had lied.

Issue Two: Prior Inconsistent Statement

[13] Winfert next claims that the trial court abused its discretion when it excluded

extrinsic evidence of Mother’s prior inconsistent statement. We review a trial

court’s evidentiary rulings for an abuse of discretion. State Farm Mut. Auto. Ins.

Co. v. Earl, 33 N.E.3d 337, 340 (Ind. 2015). Again, during the State’s case-in-

chief Mother testified and Winfert cross-examined her. At one point, Winfert

questioned Mother about A.A.’s behavioral problems at school. Specifically,

Winfert asked Mother whether she had told Detective Flynn at the child

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1422 | November 22, 2017 Page 8 of 10 advocacy center that A.A. had been in trouble at school. Mother responded

and stated that A.A. had never failed in school. Mother further stated that she

remembered the conversation with Detective Flynn, but that she did not say

A.A. had been in trouble at school and that she “wasn’t talking about the

school situation.” Tr. at 70.

[14] During Detective Flynn’s testimony, Winfert cross-examined her. Winfert

asked Detective Flynn if Mother told her that A.A. had been in trouble at

school. The State then objected to the statement on hearsay grounds. Winfert

responded by asserting that it was a “[p]rior inconsistent statement of what

[Mother] said on the stand.” Id. The court sustained the objection, struck the

question, and instructed the jury to not consider the statement in any way.

[15] Winfert contends that Detective Flynn’s statement was admissible as a prior

inconsistent statement under Indiana Evidence Rule 613. In support of his

contention, Winfert cites Jackson v. State, 925 N.E.2d 369, 375 (Ind. 2010),

where our Supreme Court stated that “Rule 613 allows the use of a prior

inconsistent statement to impeach a witness, and when so used, the statement is

not hearsay.” Id.

[16] However, as the State points out and Winfert concedes, Winfert did not make

an offer of proof to preserve this issue for our review. “It is well settled that an

offer of proof is required to preserve an error in the exclusion of a witness’

testimony.” Dowdell v. State, 720 N.E.2d 1146, 1150 (Ind. 1999). “An offer of

proof allows the trial and appellate courts to determine the admissibility of the

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1422 | November 22, 2017 Page 9 of 10 testimony and the potential for prejudice if it is excluded.” Id. Without an

offer of proof as to how Detective Flynn would have answered Winfert’s

question, we cannot say on appeal that her answer mattered. Accordingly, the

issue is waived. And, waiver notwithstanding, we are not persuaded that any

answer Detective Flynn would have given would have had a probable impact

on the outcome. See Ind. Appellate Rule 66(A).

[17] In conclusion, Winfert, the defendant, became a witness when he testified. As

such, he was subject to Indiana Rule of Evidence 704. The trial court did not

violate his Fifth Amendment right to testify or his Sixth Amendment right to

present a defense when the trial court struck his testimony that Mother had lied

during her testimony. Further, Winfert waived any error in the exclusion of

Detective Flynn’s testimony when he failed to make an offer of proof.

[18] Affirmed.

Kirsch, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1422 | November 22, 2017 Page 10 of 10