Jason Michael Palilonis v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: June 20, 2012
• Docket: 42A05-1104-CR-197
• Status: Published

Opinion

FOR PUBLICATION FILED Jun 20 2012, 8:59 am

CLERK of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

KIMBERLY A. JACKSON GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana

BRIAN REITZ Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

JASON MICHAEL PALILONIS, ) ) Appellant-Defendant, ) ) vs. ) No. 42A05-1104-CR-197 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE KNOX SUPERIOR COURT The Honorable W. Timothy Crowley, Judge The Honorable Sherry B. Gregg Gilmore, Special Judge Cause No. 42D01-0509-FC-190

June 20, 2012

OPINION - FOR PUBLICATION

VAIDIK, Judge Case Summary

Jason Palilonis was convicted of Class B felony rape for raping a fellow

Vincennes University student after a night where both had been drinking. A year after

the incident, the victim, B.S., committed suicide. At trial, statements Palilonis made to

the police, statements B.S. made to the nurse during her sexual-assault examination, and

evidence of B.S.’s death were admitted into evidence over Palilonis’s objections.

Testimony from a nurse vouching for the credibility of B.S.’s statements about the rape

was also admitted, but without any objection from Palilonis. The jury found Palilonis

guilty, but four days later a juror alleged juror misconduct, specifically that the

foreperson told the jury the judge thought Palilonis was guilty and some of the jurors

were aware that B.S. had committed suicide. Evidentiary hearings were held, and the

trial court found that no misconduct occurred. This was the correct course of action for

the trial court to take in this situation, and Palilonis’s argument is merely asking us to

reweigh the evidence adduced at the evidentiary hearings, which we may not do.

We also hold that the trial court did not err in admitting evidence of B.S.’s death,

as this was the fairest resolution for both parties of the issue of why B.S. was not

testifying at trial. Finally, we find that the statements B.S. made to the nurse during her

sexual-assault examination are admissible under Evidence Rule 803(4) and the reasoning

in Perry v. State, 956 N.E.2d 41 (Ind. Ct. App. 2011), for the description of the events of

the rape.

Facts and Procedural History

2 On September 22, 2005, Palilonis, a twenty-year-old Vincennes University

student, was drinking alcohol with other students at his apartment. Among those students

was twenty-one-year-old B.S. At some point that night, Palilonis and B.S. had sex in his

bathroom and were discovered by Palilonis’s girlfriend. B.S. went to Palilonis’s

bedroom, but Palilonis told her that she had to leave. B.S. went to the living room and

fell asleep on the couch. Palilonis also fell asleep and awoke the next morning to find

B.S. “passed out” and “half naked” on his couch. Tr. p. 1005-06, 1008. Palilonis said

that he remained in his apartment until B.S. left. Id. at 1014.

The next night, both Palilonis and B.S. were at another nearby party. There were

approximately thirty to fifty students there, including B.S.’s friends Matt Devarenne,

Brice Basford, and Andrew Bryant. At the party, the students were playing beer pong, a

drinking game. B.S. had more than five alcoholic drinks and became very intoxicated.

Around midnight or one o’clock in the morning, Basford walked B.S. back to his nearby

apartment so that she could go to sleep. She took off her jeans and passed out face down

on a couch. Basford left B.S. asleep on the couch and went next door to a friend’s

apartment.

About an hour later, Devarenne drove a group of students from the party back to

Basford’s apartment. Palilonis arrived a short while later. At this time, B.S. was still

passed out on her stomach on the couch. One of the residents of the apartment indicated

that he was going to bed, so the guests left the apartment. Devarenne, however, returned

to the apartment later and noticed that it was darker than normal. Id. at 891-92.

Devarenne saw Palilonis’s head over the approximately three-foot-high brick wall that

3 separated the couch from the entryway, and Palilonis told Devarenne to be quiet.

Devarenne moved closer to the couch and saw Palilonis squatting behind B.S., holding

her in position and penetrating her vagina with his penis. Id. at 893-95. B.S. was still

face-down on the couch and not making any noise. Id. at 894-95.

Devarenne yelled for his friends, but no one answered, so he went next door and

told his friends that Palilonis was raping B.S. Basford, Devarenne, Bryant, and others

went back to the apartment. Palilonis was still on top of B.S., and B.S. was still not

moving. Basford saw Palilonis raping B.S., asked him what he was doing, and told him

to “get the f*** out of my house.” Id. at 899, 933. Palilonis put on his pants and fled

from the apartment. B.S. woke up, distraught, and yelled “Oh my God, guys, how could

you let this happen to me?” Id. at 908. She then ran crying to a friend’s apartment

nearby.

Devarenne, Basford, Bryant, and another friend left the apartment and went over

to Palilonis’s apartment. Basford and Bryant beat Palilonis up. They later returned with

B.S., who, according to Devarenne, repeatedly slapped Palilonis. Id. at 911-12.

Palilonis’s roommate called the police.

Police arrived around 5:30 a.m. B.S. was transported to the Good Samaritan

Hospital Emergency Room where she underwent a sexual-assault examination. B.S. told

Tammy Freeman, the examining nurse, the details of what had happened during her rape.

Specifically, B.S. said that she went to sleep on the couch at the apartment, and she

“woke up and found a male that [she] had met last evening on top of [her].” State’s Ex.

52. She also said that “he had vaginal sex with [her].” Id.

4 During the physical examination of B.S., Freeman found that B.S. had bruises on

her arm and a large amount of discharge in her vagina. Tr. p. 860, 989. A vaginal smear

slide confirmed the presence of seminal material in her vagina, but the vaginal wash,

rectal smear slide, oral swab, and external genital swabs did not. State’s Ex. 50-51.

DNA testing did not identify the sperm contributor. Tr. p. 750-51, 755, 796. Sperm was

also not detected on the couch where Palilonis and B.S. had been, and testing did not

produce any evidence of foreign hair, debris, or secretions on B.S.’s body. Id. at 768,

856. She was recommended to counseling and prescribed birth-control pills. Id. at 848-

49.

Vincennes Police Department Crime Scene Investigator Mark Dupire arrived at

the apartment building between 6 and 7 a.m. He advised Palilonis of his rights and

obtained consent to search his apartment. Palilonis said that he had drank about six or

seven beers and three or four shots of Jagermeister during the night, with his last drink at

around 3 a.m.

Meanwhile, Vincennes Police Department Detective Dustin Luking interviewed

Devarenne at the police department about the incident. Devarenne gave a forty-five-

minute recorded statement in which he told Detective Luking that he initially thought

B.S. and Palilonis were engaged in consensual sexual relations when he first saw them.

Id. at 918. Devarenne said he did not think that Palilonis was wearing a condom but that

he “didn’t look that close . . . as to actual [sic] which hole he penetrated.” Id. at 920.

After talking to Devarenne, Detective Luking went to Good Samaritan Hospital to

interview B.S. He then returned to the police department to interview Palilonis. Palilonis

5 signed a second waiver of his Miranda rights before the interview. State’s Ex. 54.

During the interview, Palilonis initially denied any sexual contact with B.S. Detective

Luking then falsely indicated that someone other than B.S.’s friends had seen him on top

of B.S., and Palilonis admitted that he did attempt to initiate sex with her, but he thought

it was consensual given their earlier sexual encounter. Tr. p. 1037-39. The following

exchange took place during the interview:

Q Did she uh was she awake?

A Well she woke up and that is when I got off and she said no no stop. So I stopped and got off and said all right I’m out of here then.

* * * * * Q Were you trying to penetrate her?

A No when she woke up no.

* * * * * Q So she is asleep on the couch and you though [sic] you would try to have sex with her?

A Pretty much.

* * * * * Q What made her wake up?

A I have no idea. I would imagine me trying to stick it in her.

Q Okay. So you actually were trying to penetrate her?

A Yes I just told you that.

Q Okay. Did you actually touch her vagina then with her [sic] penis?

A Ish. [sic] I mean I got pretty close to it.

* * * * *

6 Q Now listen Jason uh I know that you came out of the room. You saw her on the couch and you saw an opportunity there. Okay, she at no time awoke and said she wanted to have sex, did she?

A No.

Q Okay. And you though [sic] uh I am going to have a chance here to have some sex. Okay. Right?

Id. at 1039-44. During the interview, Palilonis denied penetration and ejaculation. Id. at

1044, 1046.

After the recorded interview was completed, Palilonis told Detective Luking in the

hallway of the police department that he thought he might have penetrated B.S. a few

times but he was going to stick to his story because he did not remember with certainty.

Palilonis also said “I hate to think I am going to prison for ten seconds of fun.” Id. at

1052.

Palilonis consented to accompany police to Good Samaritan Hospital to have a

suspect rape kit completed that day. The rape kit did not establish any sexual contact

between Palilonis and B.S. State’s Ex. 50, 51. After the rape kit was performed,

Detective Luking arrested Palilonis. Three days later, the State charged Palilonis with

Class C felony rape in Judge Timothy Crowley’s court, but it later amended the charge to

Class B felony rape. Appellant’s App. p. 37, 52-53. Approximately one year later, B.S.

committed suicide. Id. at 111.

Before trial, Palilonis attempted to exclude all evidence of B.S.’s death and her

statements made during her sexual-assault examination. Id. at 111-12. The trial court

overruled Palilonis’s motion as to B.S.’s statements during her medical examination and

7 ruled that the State could present evidence that B.S. was deceased but could not reveal

that she had committed suicide. Tr. p. 575-76.

Palilonis also tried to suppress the statements he made to Detective Luking,

alleging that he did not knowingly consent because he was intoxicated and had recently

been beaten up. At a suppression hearing, Detective Luking testified that he did not

observe any signs that Palilonis was intoxicated and that he would not have interviewed

Palilonis if he were intoxicated and unable to consent. Id. at 114, 116. Detective Luking

also noted that Palilonis did not ask for any medical treatment for the beating he

sustained. Id. at 114. The trial court denied Palilonis’s motion to suppress. Appellant’s

App. p. 157.

Due to continuances and court congestion, the trial did not begin until May 5,

2009, nearly four years after the incident. During trial, Devarenne testified that he saw

Palilonis raping B.S., Tr. p. 894 (“I saw Jason’s penis go inside of her vaginally”), and

Basford testified that he saw Palilonis naked on top of B.S. Id. at 933. Tammy Freeman,

the Good Samaritan Hospital nurse who performed the sexual-assault examination on

B.S., testified as to statements B.S. made to her during the examination that concerned

the events of the rape. Id. at 851. She also made the following statements without

objection from Palilonis:

Q And [B.S.’s case] was noteworthy to you?

A Oh absolutely.

Q And why is that?

A Uh. I guess the easiest way to say it is. Uh when you talk to someone and you have been around this situation enough times uh I guess you could just

8 say it was believable. The story is believable or should I say her story is believable.

Q So [B.S.] made an impression?

A Absolutely.

Q You said she supplied you with a history so you could do your treatment. Is that correct?

A. Yes.

Q Did she do that in this circumstance?

A Yes she did.

Q How would you describe, uh you said she made an impression on you. How would you describe her on this occasion?

A She was what I would call very straight forward with me . . . .

Id. at 820-21. The prosecutor referred to these statements again in his closing argument

but did not give his own opinion as to B.S.’s truthfulness. Id. at 1162.

The jury found Palilonis guilty. Appellant’s App. p. 215. The jury was polled,

and every juror agreed with the verdict. Tr. p. 1257-59. Four days after the verdict,

however, Palilonis’s counsel received an anonymous letter from a juror alleging juror

misconduct. Palilonis filed a motion to set aside the verdict and asked that Judge

Crowley recuse himself because he was allegedly involved in the jury misconduct. Judge

Crowley denied any misconduct but recused himself; Judge Sherry Gregg Gilmore was

selected as a special judge. Judge Gilmore allowed Palilonis in-camera access to the jury

questionnaires, through which he was able to identify the juror who wrote the letter –

Virginia Kassinger.

9 An evidentiary hearing was held, and Kassinger said her motivation for coming

forward in this case was that she did not feel like Palilonis was guilty. Id. at 1383. She

testified that the jury foreperson, Philip Stutsman, told the jury that the judge knew things

that the jury did not and thought that Palilonis was guilty. Id. at 1352, 1361. Kassinger

alleged that Stutsman learned this information through Ashlee Morris, his wife’s cousin

and one of two high-school students who were shadowing Judge Crowley as part of a

school program during one day of the trial. Kassinger also claimed that Stutsman told the

jury that Judge Crowley told the high school students at lunch that Palilonis was guilty.

Id. at 1359. Based on Kassinger’s testimony, Judge Gilmore concluded that Palilonis had

established by a preponderance of the evidence that “improper contact occurred, that

extraneous information was injected into the jury room, and that the information

pertained to a matter pending before the jury, thereby establishing a rebuttable

presumption of prejudice.” Appellant’s App. p. 338. The State was then allowed to

present evidence in rebuttal.

A second evidentiary hearing was held at which time Judge Crowley, the two

high-school students (Ashlee Morris and Mason DeLisle), Kathy Morris (Ashlee Morris’s

mother), and Stutsman testified and contradicted Kassinger’s claims. Tr. p. 1404-1526.

Judge Crowley testified that he did discuss the case with the two students, including the

fact that B.S. had committed suicide, but he denied making any comments indicating that

Palilonis was guilty. Id. at 1416-25. Both high school students denied that Judge

Crowley ever made any comments about Palilonis’s guilt. Id. at 1429, 1438. Mason

testified that Judge Crowley discussed the background of the case with the students,

10 while Ashlee denied that discussion took place. Id. at 1429, 1441. Ashlee also testified

that she did not feel that she could talk about the case outside of the courtroom so she did

not share any information about the case with her parents except for the fact that

Stutsman was a juror. Id. at 1448. Kathy testified that Ashlee “talked a lot about the

opening statement” but did not discuss the details of the case. Id. at 1455, 1458. She also

testified that both Ashlee and Tonya Gott Stutsman, Stutsman’s wife, told her that

Stutsman was serving on the jury for this case. Id. at 1460, 1464. Finally, Stutsman

testified that he never spoke to Ashlee Morris or any other family member about the case;

he was not even aware that Ashlee went to lunch with Judge Crowley. Id. at 1465-66,

1479. He also denied ever telling the jury that Judge Crowley thought Palilonis should be

found guilty, id. at 1467, and he was unaware of how B.S. died. Id. at 1478

After the State’s rebuttal evidence, Kassinger testified again. She testified that a

bailiff had informed the jury that Judge Crowley had taken the high-school students out

to lunch, and close to or during jury deliberations, Stutsman allegedly began to talk to the

jury about the judge’s lunch with Ashlee. Id. at 1490-91. She also testified that Stutsman

told the jury approximately four more times that the judge told the students that Palilonis

should be found guilty, id. at 1491-93, and if the other jurors knew how B.S. had died,

they would know how to vote. Id. at 1498. Notably, however, she herself was not aware

of B.S.’s suicide until after the trial and testified that no one ever said out loud that B.S.

had killed herself. Id. at 1498-99.

After hearing the testimony, the trial court found that the evidence “revealed that

any information discussed in the jury room during the trial of this cause came from the

11 jurors themselves, within the confines of the jury room, and did not arise from any

improper communication or information” and that no undue prejudice occurred.

Appellant’s App. p. 345-48. The trial court therefore denied Palilonis’s motion to set

aside the verdict. Palilonis received a ten-year sentence, with three years suspended to

probation.

Palilonis now appeals.1

Discussion and Decision

Palilonis makes six arguments on appeal: (1) whether the trial court abused its

discretion when it denied Palilonis’s motion to correct error based on alleged juror

misconduct; (2) whether the trial court abused its discretion when it allowed the jury to

be informed that B.S. was unavailable because she was deceased; (3) whether the trial

court abused its discretion in admitting statements made by B.S. during the course of her

sexual-assault examination; (4) whether the trial court abused its discretion when it

admitted the vouching statements made by the nurse who performed B.S.’s sexual-assault

examination; (5) whether the trial court abused its discretion when it admitted the

statements Palilonis made during his interview with law enforcement after the incident;

and (6) whether the evidence is sufficient to support Palilonis’s Class B felony rape

conviction.

I. Juror Misconduct

Palilonis first contends that the trial court abused its discretion in denying his

motion to correct errors based on alleged juror misconduct. Specifically, he argues that

1 We heard oral argument in this case on April 16, 2012, at Valparaiso University Law School. We would like to once again extend our thanks to the students, staff, faculty, and administration of the school for their hospitality, and we commend counsel for the quality of their written and oral advocacy. 12 the jury foreperson told the jurors that the judge knew things that they did not and the

judge thought that Palilonis was guilty – information that he learned from his wife’s

cousin who shadowed the judge through a school program on one day of the trial. He

also argues that jurors were aware of the extraneous prejudicial information that B.S. had

committed suicide. We disagree.

We review a trial court’s denial of a motion to correct errors for an abuse of

discretion. Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002). An abuse of discretion

occurs when the trial court’s ruling is clearly against the logic, facts, and circumstances

presented. Id. We do not reweigh the evidence, and we consider conflicting evidence

most favorable to the trial court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct.

App. 2005), trans. denied.

It is a long-established principle in Indiana jurisprudence that a jury’s verdict may

not be later impeached by the jurors who returned it. See, e.g., Ward v. St. Mary Med.

Ctr. of Gary, 658 N.E.2d 893, 894 (Ind. 1995); Williams v. State, 793 N.E.2d 1019, 1031

(Ind. 2003). The policy reasons for this are that “(1) there would be no reasonable end to

litigation, (2) jurors would be harassed by both sides of litigation, and (3) an unsettled

state of affairs would result.” Ward, 658 N.E.2d at 894. This principle is also set forth in

Indiana Evidence Rule 606(b), which states in relevant part:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statements occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify (1) to drug or alcohol use by a juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury’s

13 attention or (3) whether any outside influence was improperly brought to bear upon any juror.

A rebuttable presumption of prejudice will arise if jurors engage in misconduct by

out-of-court communications with unauthorized persons. Spears v. State, 811 N.E.2d

485, 488 (Ind. Ct. App. 2004). This misconduct must be “based on proof, by a

preponderance of the evidence, that the extra-judicial contact or communication actually

occurred and that it pertained to a matter pending before the jury.” Butler v. State, 622

N.E.2d 1035, 1040 (Ind. Ct. App. 1993). Once the defendant has established this, a

presumption of misconduct arises and the burden shifts to the State for rebuttal. Id. After

hearing evidence from the State, the trial court “must be convinced that a substantial

possibility existed that the verdict was prejudiced by the improper material before a

reversal and new trial will be granted.” Id.

Prejudicial extraneous information “may be grounds for impeaching a verdict

where there is a substantial possibility that such extrinsic material prejudiced the verdict.”

Hape v. State, 903 N.E.2d 977, 987 (Ind. Ct. App. 2009). Like out-of-court

communications, the burden is initially on the defendant to prove that the material

brought into the jury room was extrinsic. If that burden is met, the State must then prove

that the introduction of that extrinsic material was harmless. Id. “Absent a ‘substantial

possibility that [the] . . . material prejudiced the verdict,’ its introduction is harmless, and

jurors may not impeach the verdict by testifying about it.” Id. (quoting Stephenson v.

State, 742 N.E.2d 463, 477 (Ind. 2001)).

In this case, Kassinger’s motivation for coming forward was that she did not feel

like Palilonis was guilty, Tr. p. 1383, which is exactly what our Supreme Court warned

14 would happen if jurors were allowed to impeach their verdicts. After the hearings on the

matter, Judge Gilmore found that the State successfully rebutted any presumption of

misconduct. Palilonis’s argument on this issue is therefore essentially asking us to

reweigh the evidence, which we will not do. He argues that Kassinger’s version of

events is more reliable than Stutsman’s, saying that “Stutsman specifically testified he

did not remember some of the discussions during deliberations” and “Kassinger’s

account was too substantial and specific to be attributed solely to a misunderstanding.”

Appellant’s Br. p. 24, 25. He also argues that Judge Gilmore’s finding that the evidence

discussed in the jury room did not arise from extraneous communication or information

was not consistent with the evidence. As to the extraneous information of B.S.’s suicide,

Palilonis contends that the mere knowledge of her cause of death was prejudicial and

invited speculation by the jury that she committed suicide as a result of the rape.

However, after hearing the evidence, the special judge did not find this to be the case.

We therefore find Palilonis’s argument to be a request to reweigh the evidence on

this issue, which we may not do. The trial court did not abuse its discretion in denying

Palilonis’s motion to correct errors based on alleged juror misconduct.

II. B.S.’s Death

Palilonis next contends that the trial court abused its discretion by allowing the

jury to learn that B.S. was deceased. A trial court has broad discretion in ruling on the

admission or exclusion of evidence. Kimbrough, 911 N.E.2d at 631. The trial court’s

ruling on the admissibility of evidence will be disturbed on review only upon a showing

of an abuse of discretion. Id. An abuse of discretion occurs when the trial court’s ruling

15 is clearly against the logic, facts, and circumstances presented. Id. We do not reweigh

the evidence, and we consider conflicting evidence most favorable to the trial court’s

ruling. Collins, 822 N.E.2d at 218.

Our research shows that this is not a frequently litigated issue, but both parties cite

Moore v. State, 440 N.E.2d 1092 (Ind. 1982), for support of their respective positions.

Moore was on trial for rape; the victim testified at his first trial, but it ended in a mistrial.

Before retrial, the victim committed suicide. Id. at 1093. The trial court allowed her

death certificate to be admitted at the retrial to explain the use of her prior testimony, but

the death certificate suggested foul play was involved – the cause of death was a gunshot

wound to the chest. The victim had left a suicide note, which would have disproven the

theory that Moore was somehow involved, but the trial court refused to admit the note

into evidence. Id. Moore was found guilty, and our Supreme Court reversed his

conviction. Id. at 1095.

In making its ruling, the Court stated:

There is no need to inform the jury of any of the factors relating to the witness’ absence. The trial court erred in allowing the jury to view the death certificate. It would have erred even if it had done no more than to inform the jury the witness was unavailable because she was dead. In the case at bar, the effect of the jury’s viewing of the death certificate coupled with their awareness of the timing of the death undeniably left them free to infer appellant had arranged for, or himself committed the murder of Mrs. Davis to prevent her from testifying against him.

Id. at 1094.

Palilonis contends that Moore mandates reversal in this case because the jury was

informed that B.S. was unavailable because she was dead. He further argues that by

16 admitting that information, the trial court invited speculation that B.S.’s death was linked

to the rape allegations and also inflamed the emotions of the jury. Because of this, he

claims that he was denied a fair trial. The State, on the other hand, argues that Moore

holds that excluding the evidence showing that the victim’s death was a suicide was the

abuse of discretion, not informing the jury that the victim was dead.

However, the facts of Moore are distinguishable from the present case. In this

case, there is no indication that Palilonis was the one who was directly responsible for

B.S.’s death in the way that there was in Moore with a suspicious fatal gunshot wound.

B.S.’s death took place four years after the rape, and there was no indication that there

was suspicion of foul play. While there is dicta in Moore that says it would have been

error “if [the trial court] had done no more than to inform the jury the witness was

unavailable because she was dead,” id., the case was decided on the fact that it was error

to allow the jury to view the death certificate. The narrow grounds of this holding show

that this is a fact-specific inquiry. As such, because the facts of this case are different

from Moore, there is a lack of relevant case law on this issue.

We therefore note our required deference to the trial court on issues of admission

of evidence. We find that the trial court acted in the best interest of both parties on this

issue, so this was not an abuse of discretion. Informing the jury that B.S. had committed

suicide would have been prejudicial to Palilonis, and not giving the jury any information

as to why B.S. was not testifying would have been prejudicial to the State. Based on the

specific facts of this situation, allowing the jury to know that B.S. was dead four years

after the rape was not the type of highly prejudicial information that was involved in

17 Moore. We therefore respect our trial court colleague’s judgment that this was the fairest

resolution of the issue and defer to his decision; he did not err in informing the members

of the jury that B.S. was unavailable because she was dead.

III. B.S.’s Statements

Palilonis also contends that the trial court abused its discretion and violated his

Sixth Amendment right to confront witnesses against him by admitting hearsay

statements B.S. made to hospital personnel about being raped during her sexual-assault

examination. A trial court has broad discretion in ruling on the admission or exclusion of

evidence. Kimbrough, 911 N.E.2d at 631. The trial court’s ruling on the admissibility of

evidence will be disturbed on review only upon a showing of an abuse of discretion. Id.

An abuse of discretion occurs when the trial court’s ruling is clearly against the logic,

facts, and circumstances presented. Id. We do not reweigh the evidence, and we

consider conflicting evidence most favorable to the trial court’s ruling. Collins, 822

N.E.2d at 218.

A. Hearsay

Indiana Evidence Rule 803(4) says:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness. * * * * * (4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made by persons who are seeking medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

18 This exception is “based upon the belief that a declarant’s self-interest in seeking medical

treatment renders it unlikely that the declarant would mislead the medical personnel

person she wants to treat her.” Miles v. State, 777 N.E.2d 767, 771 (Ind. Ct. App. 2002).

There is a two-step analysis for determining whether a statement is properly admitted

under Evidence Rule 803(4): “(1) whether the declarant is motivated to provide truthful

information in order to promote diagnosis and treatment; and (2) whether the content of

the statement is such that an expert in the field would reasonably rely upon it in rendering

diagnosis or treatment.” Nash v. State, 754 N.E.2d 1021, 1023-24 (Ind. Ct. App. 2001),

trans. denied.

Palilonis contends that the statements made by B.S. to Freeman, the nurse who

performed the sexual-assault examination, were not for the purposes of medical diagnosis

or treatment, so they therefore cannot fall under the hearsay exception to Evidence Rule

803(4). Specifically, Palilonis argues that B.S. only went to the hospital at the direction

of the police, she reported no physical injury or pain, and her motive in making the

statements was to comply with the investigating officers and guide in the collection of

evidence. Her description of the night’s events, he argues, were not pertinent information

for her diagnosis and treatment. We disagree.

The statements that B.S. made to the nurse concerning the events of the rape fall

squarely under Evidence Rule 803(4), as they describe the “general character of the cause

or external source” of her symptoms. Palilonis contends that B.S. did not suffer any pain

or physical injury and therefore was not receiving medical treatment at the hospital; with

that we disagree. B.S.’s statements describing the rape that she made to Freeman were

19 made so that Freeman knew how to proceed in treating B.S. They therefore were made

for the purpose of medical treatment and are admissible hearsay under Evidence Rule

803(4).

We recently decided Perry v. State, 956 N.E.2d 41 (Ind. Ct. App. 2011), in which

we found Evidence Rule 803(4) to be applicable in the context of a sexual assault,

rendering admissible the victim’s statements about the events of her assault. In Perry, the

victim arrived at an Indianapolis police station “panicked and hysterical.” Id. at 45. She

told police that she had been raped and held against her will. She was later transported to

the hospital where she was examined by an emergency-room nurse. At trial, the

statements the victim made to the examining nurse describing the attack were admitted

into evidence. Id. at 48.

On appeal, we upheld the admission of the statements under Evidence Rule

803(4), including the identification of Perry as the rapist. We held that “N.D.’s

statements indicating she was ‘grabbed . . . around the neck’ and strangled were pertinent

to the diagnosis and treatment of her physical injuries.” Id. at 50. We noted that in the

case of sexual assault, the events of the assault can be highly relevant for treating the

victim. Id. at 50. We also emphasized that in the case of sexual assault, the identity of

the perpetrator is significant for the potential treatment for sexually transmitted diseases,

HIV, how to discharge the patient, and any psychological counseling that may be

necessary. Id. at 50.

While this case differs from Perry in the sense that B.S. did not identify Palilonis

by name as her rapist, the reasoning behind our decision in Perry is still applicable in this

20 instance. B.S.’s statements describing the events of her rape were highly important for

making treatment decisions for sexually transmitted diseases, HIV, and psychological

counseling. For example, Freeman had to know if penetration occurred to know if B.S.

was at risk for sexually transmitted diseases, HIV, or even pregnancy. Hearing B.S.’s

description of the events was also important for making a determination if she was in

need of psychological counseling after the rape. Without all of this information, Freeman

would not have been able to properly diagnose and treat B.S.

The statements B.S. made to Freeman describing the events of the rape were

therefore made in the course of medical treatment and fall under the hearsay exception in

Evidence Rule 803(4).

B. Sixth Amendment

Palilonis also contends that admitting B.S.’s out-of-court statements violates his

Sixth Amendment right to confront the witnesses against him because they were

testimonial statements. The Sixth Amendment’s Confrontation Clause states that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.” This applies to statements that are deemed testimonial, unless

there has been a prior opportunity to cross-examine the witness and the witness is

unavailable at the time of trial. Crawford v. Washington, 541 U.S. 36, 68 (2004).

A statement is considered testimonial “when the circumstances objectively

indicate that there is no such ongoing emergency, and that the primary purpose of the

interrogation is to establish or prove past events potentially relevant to later criminal

prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006). Conversely, a statement

21 is nontestimonial when “made in the course of police interrogation under circumstances

objectively indicating that the primary purpose of the interrogation is to enable police

assistance to meet an ongoing emergency.” Id. In Perry, we set forth the formulations of

the “core class of ‘testimonial’ statements” that had been articulated in Crawford: “(1) ex

parte in-court testimony or its functional equivalent . . . ; (2) extrajudicial statements

contained in formalized testimony materials, such as affidavits, depositions, prior

testimony, or confessions; and (3) ‘statements that were made under circumstances which

would lead an objective witness reasonably to believe that the statement would be

available for use at a later trial.’” Perry, 956 N.E.2d at 52 (quoting Crawford, 541 U.S.

at 51-52).

We addressed the issue of testimonial statements in Perry, specifically in the

context of statements made by the victim of a sexual assault to a nurse conducting an

examination. Id. After conducting a review of case law from around the country, we

held that the statements were nontestimonial and that the primary question to consider

was “what, objectively speaking, was the primary purpose of (the nurse’s) examination

and (the victim’s) statements incident thereto?” Id. at 53. Our conclusion was that the

primary purpose was to “furnish and receive emergency medical and psychological care.”

Id. While we noted that the examination did have an investigative component, as any

evidence obtained during the exam and the medical record itself would be forwarded to

law enforcement, we found that not to be the primary purpose of the examination. As a

result, the statements made by the victim to the nurse in that situation were

nontestimonial.

22 Palilonis tries to distinguish Perry on the basis that the primary purpose of the

examination in this case was evidence collection instead of treatment, as was the case in

Perry. Appellant’s Br. p. 37. He argues that since there was no ongoing emergency –

Palilonis had already been identified to the police – and the primary purpose of the

statements was to collect evidence against her attacker, they must be considered

testimonial. He points to the facts that the evidence collected at the hospital was

introduced at trial, there was a police officer inside B.S.’s room or outside her door

almost the entire time she was at the hospital, and the nurse did not testify that she needed

a description of the attack to develop a treatment plan as support for his contentions.

Palilonis therefore contends that B.S.’s statements to the nurse were testimonial and

therefore needed to be subjected to cross-examination before being entered into evidence.

We disagree.

The primary purpose of the examination was to furnish and receive emergency

medical and psychological care; B.S. had just been raped and was sent to the hospital for

an evaluation. Therefore, despite the fact that the evidence was later used at trial, B.S.’s

statements to Freeman were nontestimonial under Perry. We therefore hold that the trial

court did not violate Palilonis’s Sixth Amendment right to confront witnesses against

him.2

IV. Vouching Statements

Next, Palilonis contends that the trial court abused its discretion in admitting the

vouching statements made by Freeman, the nurse who performed B.S.’s sexual-assault

2 Even if B.S.’s statements were found to be testimonial and therefore erroneously admitted into evidence, this error would be harmless. The evidence indicating that Palilonis raped B.S. is overwhelming, even without the statements made by B.S. 23 examination. Again, a trial court has broad discretion in ruling on the admission or

exclusion of evidence. Kimbrough, 911 N.E.2d at 631. The trial court’s ruling on the

admissibility of evidence will be disturbed on review only upon a showing of an abuse of

discretion. Id. An abuse of discretion occurs when the trial court’s ruling is clearly

against the logic, facts, and circumstances presented. Id. We do not reweigh the

evidence, and we consider conflicting evidence most favorable to the trial court’s ruling.

Collins, 822 N.E.2d at 218.

A. Vouching Testimony

Vouching testimony is generally prohibited under Indiana Evidence Rule 704(b),

which states: “Witnesses may not testify to opinions concerning intent, guilt, or

innocence in a criminal case; the truth or falsity of allegations; whether a witness has

testified truthfully; or legal conclusions.” This testimony is considered to be an “invasion

of the province of the jurors in determining what weight they should place upon a

witness’s testimony.” Gutierrez v. State, 961 N.E.2d 1030, 1034 (Ind. Ct. App. 2012).

Until recently, an exception was made to Evidence Rule 704(b) for vouching

testimony in child-molesting cases, under the rationale that “‘[t]he child’s capacity to

accurately describe a meeting with an adult which may involve touching, sexual

stimulation, displays of affection and the like, is automatically in issue . . . .’” Stewart v.

State, 555 N.E.2d 121, 125 (Ind. 1990) (quoting Lawrence v. State, 464 N.E.2d 923, 925

(Ind. 1984)), abrogated on other grounds by Lannan v. State, 600 N.E.2d 1334 (Ind.

1992). However, our Supreme Court very recently decided Hoglund v. State, 962 N.E.2d

24 1230 (Ind. 2012), in which it expressly eliminated this vouching testimony exception in

the context of child-molesting cases.

Vouching testimony is much less prominent outside the realm of child-molesting

cases, but our Supreme Court did address the issue in the context of adult witnesses in

Stewart, 555 N.E.2d at 125. In Stewart, the trial court allowed a psychologist to testify as

to whether, in her opinion, the testimony of a twenty-four-year-old mentally-retarded

man was truthful. Id. The man had testified, over Stewart’s objection, that Stewart had

urged him to engage in oral and anal intercourse with him. Id. at 124. Our Supreme

Court held that the trial court erred in admitting the testimony. While noting that

vouching testimony at the time was allowed in cases where children were the victims of

sex crimes, the Court called this “precisely the kind of vouching testimony which is

prohibited, and the trial court committed reversible error by allowing its admission.” Id.

at 125.

Here, Freeman testified at trial that B.S.’s case was noteworthy to her because her

statement that she was raped was believable. This is impermissible vouching testimony

that should not have been admitted into evidence at trial.

B. Fundamental Error

While the vouching testimony was improper and should not have been admitted,

Palilonis did not object to the testimony at trial. Tr. p. 19-22. In order to preserve an

issue for appeal, a contemporaneous objection must be made when the evidence is

introduced at trial. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). If no such

objection is made, the issue is waived for appellate review. See Kubsch v. State, 784

25 N.E.2d 905, 923 (Ind. 2003) (“Failure to object at trial to the admission of evidence

results in waiver of that issue on appeal.”). Nevertheless, Palilonis claims the admission

of this evidence constitutes fundamental error.

The fundamental error doctrine is an exception to the general rule that the failure

to object at trial constitutes a procedural default precluding consideration of the issue on

appeal. Jewell v. State, 887 N.E.2d 939, 940 n.1 (Ind. 2008). The fundamental error

exception is extremely narrow and applies only when the error constitutes a blatant

violation of basic principles, the harm or potential for harm is substantial, and the

resulting error denies the defendant fundamental due process. Mathews v. State, 849

N.E.2d 578, 587 (Ind. 2006). The error claimed must either make a fair trial impossible

or constitute clearly blatant violations of basic and elementary principles of due process.

Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010), reh’g denied. This exception is

available only in egregious circumstances. Id.

We have previously addressed fundamental error in the context of vouching

testimony with differing results. Notably, all of these cases deal with child victims and

were decided before Hoglund. In Kelley v. State, 566 N.E.2d 591 (Ind. Ct. App. 1991),

we found that the admission of the vouching testimony did not result in fundamental

error. During Kelley’s trial for child molesting, the State asked the child victim’s

therapist whether she believed the child was telling the truth, to which the therapist

responded, “Yes, I do.” Id. at 593. Kelley neither objected to nor moved to strike the

testimony. Id. On appeal, however, he claimed fundamental error. However, there was

only one statement made by the therapist, and there was evidence that Kelley had sexual

26 intercourse with the child between fifteen to eighteen times. Id. at 592. In determining

that it was not fundamental error to admit the therapist’s opinion into evidence, we noted

that the testimony did “not rise to the level where it would affect the fairness or integrity

of the judicial proceedings or deny Kelley due process.” Id. at 593.

Similarly, in Okuly v. State, 574 N.E.2d 315 (Ind. Ct. App. 1991), we also found

vouching testimony not to rise to the level of fundamental error. Okuly was on trial for

child molesting, and one of the State’s witnesses was an AFDC (Aid to Families with

Dependent Children – today known as Temporary Assistance for Needy Families)

caseworker formerly assigned to the child victim’s case. When asked whether in her

opinion the child was telling the truth, the caseworker replied, “In all the conversations

I’ve had with (the child) and all the information I’ve asked her or confronted her with, ah,

I believe that what she is telling me and she’s telling the jury and the people in this

courtroom is the truth.” Id. at 316. Okuly did not object, but he asserted fundamental

error on appeal. We found no fundamental error, however, finding that after reviewing

the record in its entirety that the testimony was “not so prejudicial to Okuly as to deny

him a fair trial.” Id. We also said that while the child’s credibility was improperly

bolstered, Okuly was not denied the chance to attack her credibility, and he had a fair

opportunity to meet the allegations against him. As a result, he was not denied

fundamental due process and there was no fundamental error. Id. at 317.

However, we did find that vouching testimony rose to the level of fundamental

error in Gutierrez, 961 N.E.2d at 1035. During Gutierrez’s trial for child molesting, the

State asked the child victim’s DCS case manager whether she believed the child was

27 telling the truth about the molestation – she responded, “absolutely.” Id. at 1033. The

deputy prosecutor then contemporaneously inserted his own opinion as to the truthfulness

of the witness. Id. at 1035. It was only when the DCS case manager was asked if she

could explain why she believed the child that Gutierrez’s counsel objected, so we

analyzed the admission of the testimony under fundamental error on appeal. Id. at 1033.

Unlike Kelley and Okuly, however, we found that this was fundamental error.

Notably, the evidence against Gutierrez was also much less substantial than in Kelley and

Okuly, as the child victim repeatedly contradicted herself in her testimony, and there was

no physical evidence of sexual abuse. Id. We held that the testimony from the DCS

caseworker was “an invasion of the province of the jurors in determining what weight

they should place upon a witness’s testimony.” Id. at 1034. We also found that the

prosecutor’s comments about believing the child victim during his closing argument

compounded the problem. Id. at 1035. As a result, the admission of the vouching

testimony was determined to be fundamental error.

Palilonis contends that the admission of Freeman’s testimony rises to the level of

fundamental error. He claims that because the testimony invaded the province of the jury

and the prosecutor referred to it later in his closing argument, enhancing its prejudicial

impact, its admission rose to the level of fundamental error. He argues that this

“constituted a substantial, blatant violation of basic principles of due process rendering

the trial unfair” and prevented him from receiving a fair trial and an impartial jury.

Appellant’s Br. p. 43. With this, we disagree.

28 We find the admission of Freeman’s statement to be harmless error rather than

fundamental error. The prosecutor did not vouch for B.S.’s credibility himself, Tr. p.

1162; see Gutierrez, 961 N.E.2d at 1033, and Freeman’s vouching testimony dealt with

information that was already in evidence from other witnesses’ testimony – the fact that

Palilonis raped B.S. Since there were two witnesses to the rape, Devarenne and Basford,

medical evidence that supported their testimony, and Palilonis’s interview with the police

all in evidence, Freeman’s vouching testimony, while it was improper, was harmless.

V. Palilonis’s Statements

Palilonis also contends that the trial court abused its discretion in admitting the

statements he made during his interview with law enforcement on the night of the

incident. He argues that he did not knowingly, voluntarily, and intelligently waive his

Fifth Amendment right against self-incrimination or voluntarily give statements to the

police because he was intoxicated, had recently been beaten, and was subjected to

deceptive police tactics. We disagree.

A trial court has broad discretion in ruling on the admission or exclusion of

evidence. Kimbrough, 911 N.E.2d at 631. The trial court’s ruling on the admissibility of

evidence will be disturbed on review only upon a showing of an abuse of discretion. Id.

An abuse of discretion occurs when the trial court’s ruling is clearly against the logic,

facts, and circumstances presented. Id. We do not reweigh the evidence, and we

consider conflicting evidence most favorable to the trial court’s ruling. Collins, 822

29 The Fifth Amendment of the United States Constitution provides a privilege

against self-incrimination during custodial interrogation. Miranda v. Arizona, 384 U.S.

436, 461 (1966). A person is entitled to Miranda protection only when he is subjected to

custodial interrogation. Kelley v. State, 825 N.E.2d 420, 427 (Ind. Ct. App. 2005).

Custodial interrogation is “‘questioning initiated by law enforcement officers after a

person has been taken into custody or otherwise deprived of his freedom of action in any

significant way.’” Id. (quoting Zook v. State, 513 N.E.2d 1217, 1220 (Ind. 1987)). It is

undisputed by the parties that Palilonis was subjected to custodial interrogation by

Detective Luking.

“A waiver of one’s Miranda rights occurs when a defendant, after being advised

of those rights and acknowledging an understanding of them, proceeds to make a

statement without taking advantage of those rights.” Crain v. State, 736 N.E.2d 1223,

1230 (Ind. 2000). The State has the burden to prove beyond a reasonable doubt that the

waiver was made knowingly and voluntarily. Horan v. State, 682 N.E.2d 502, 509 (Ind.

1997).

To be admissible, a suspect’s confession must also be voluntarily given. Carter v.

State, 686 N.E.2d 1254, 1258 (Ind. 1997). A confession is voluntary if it is the product

of a rational intellect and not the result of physical abuse, psychological intimidation, or

deceptive interrogation tactics that have overcome the defendant’s free will. A.A. v.

State, 706 N.E.2d 259, 262 (Ind. Ct. App. 1999). Under the United States Constitution,

the State must prove by a preponderance of the evidence that the defendant’s confession

was voluntary. Clark v. State, 808 N.E.2d 1183, 1191 (Ind. 2004). Under the Indiana

30 Constitution, when the defendant challenges the admissibility of a confession, the State

must show voluntariness beyond a reasonable doubt. Id. The voluntariness of a

defendant’s confession is determined from the totality of the circumstances. Washington

v. State, 808 N.E.2d 617, 622 (Ind. 2004).

A. Intoxication

Our courts have consistently held that statements are not inadmissible per se when

a suspect is intoxicated; they are only inadmissible because of intoxication when the

suspect is so intoxicated that he is unaware of what he is saying or the intoxication has

produced a state of mania in the suspect. See, e.g., Wilkes v. State, 917 N.E.2d 675, 680

(Ind. 2009); Luckhart v. State, 736 N.E.2d 227, 231 (Ind. 2000). Intoxication of a lesser

degree goes only to the weight to be given to the statement, not to its admissibility.

Wilkes, 917 N.E.2d at 680.

Our courts have dealt with this issue in multiple cases. For example, in Luckhart,

736 N.E.2d at 231, Luckhart claimed that her confession was involuntary because she

was under the influence of crack cocaine at the time of her interrogation. Our Supreme

Court upheld the admissibility of her confession on appeal, noting that the interrogating

officer testified at trial that during the interrogation, Luckhart “did not exhibit any signs

of drug or alcohol use, was oriented as to time and place, answered questions in a logical

sequence, and was able to walk without assistance.” Id. As a result, Luckhart’s

intoxication was not so severe that her confession was involuntary. Id.

We also addressed this issue in the 2009 case of Bean v. State, 913 N.E.2d 243

(Ind. Ct. App. 2009). Bean argued on appeal that his custodial statements while being

31 interrogated for murder were not voluntary because “he was ‘suffering the after effects

[sic] and shock of Heather Norris’ violent death and his action in disposing of her body’”

and because he was under the influence of alcohol and Xanax. Id. at 249. Specifically,

he had consumed “four to six shots of [Jagermesiter] and three to four pills of Xanax

about an hour before he talked to the detectives.” Id. (quotations omitted). Despite this,

we upheld the admission of his custodial statements, holding that Bean had provided no

evidence that he was not conscious of what he was doing during his interrogation or that

he was in a state of mania. Id. at 249-50. After reviewing the totality of the

circumstances, we determined that Bean’s statements to the police were voluntary and

any argument about his intoxication should go to the weight given to the statements and

not their admissibility. Id.

Finally, our Supreme Court took up this issue in Wilkes, 917 N.E.2d at 675.

Wilkes was being interrogated about his involvement in three murders and claimed five

different times to be under the influence of drugs. Id. at 680. However, our Supreme

Court ruled that the interview was not involuntary due to intoxication, noting that Wilkes

did “not claim that his intoxication caused him to be unaware of his statements during the

interview, and the detectives who interrogated him testified that he did not appear

intoxicated.” Id.

Palilonis argues that he could not have knowingly, voluntarily, and intelligently

waived his Fifth Amendment right, despite his signed waiver, because he was suffering

the effects of a recent beating and could still have been intoxicated. He points out that he

had been drinking heavily up until 3 a.m. and Detective Luking neither asked him if he

32 was intoxicated nor administered any test to determine if he was still under the influence

of alcohol. Appellant’s Br. p. 51. Palilonis also argues that he was still suffering from

the recent effects of having been beaten up, which also affected his ability to voluntarily

consent to the interview. We disagree.

Palilonis had not consumed alcohol for seven hours before his interview.

Detective Luking testified at trial that Palilonis showed no signs of being intoxicated

during the interview and he would not have interviewed Palilonis if he believed Palilonis

was intoxicated and unable to consent. Tr. p. 116. Palilonis waived his Miranda rights at

two different times, voluntarily consenting to the interview. State’s Ex. 3, 54. Finally, as

for the beating that Palilonis endured, Palilonis had only superficial scratches and bruises,

did not suffer any head trauma that would have affected his decision making, and never

asked for medical treatment. See State’s Ex. 36-46. We therefore find that Palilonis’s

statements were not inadmissible due to the beating he endured or intoxication.

B. Deceptive Police Tactics

Palilonis also argues that Detective Luking engaged in deceptive police tactics by

claiming that a “totally independent” person who did not know B.S. saw Palilonis raping

her, when in fact, the only witness he had at that point was Devarenne.

While deceptive police interrogation tactics “weigh heavily against the

voluntariness of the defendant’s confession,” Henry v. State, 738 N.E.2d 663, 665 (Ind.

2000), they do not automatically render a confession inadmissible, Clark v. State, 808

N.E.2d 1183, 1191 (Ind. 2004). The conduct of the police must be examined in the

33 context of the “totality of the circumstances” test to determine if it overbore the suspect’s

will, rendering the statement involuntary. Henry, 738 N.E.2d at 665.

We addressed this issue specifically in the context of false representations as to the

statements made by others in the 1980 case of Ward v. State, 408 N.E.2d 140 (Ind. Ct.

App. 1980). Ward was arrested and interrogated about a burglary to which he eventually

confessed. During Ward’s interrogation, police officers falsely stated that his accomplice

had made a statement that incriminated him. Id. at 143. On appeal, Ward argued that his

confession was a result of the deceptive statement made by the police officer and that the

statement “induced him to give a confession that was not freely self determined.” Id.

We, however, found that the trial court did not err in finding that the officer’s statement

was permissible. We noted that simply confronting a suspect with incriminating

evidence does not amount to coercion and “even where the officer falsely tells the

defendant that his accomplice has incriminated him, the deceptive statement is

insufficient to render the confession inadmissible.” Id.

Also, in Light v. State, 547 N.E.2d 1073, 1078-79 (Ind. 1989), the police officer

who interrogated Light testified to lying to Light during the interrogation about having a

letter that never actually existed; this statement caused the defendant to confess. In

finding that Light’s confession was voluntary, our Supreme Court stressed the importance

of the totality-of-the-circumstances test and the need to focus on the entire investigation

instead of just a single act of the police. Id. at 1079. Although Light was of lower

intelligence and the police lied to him, the Court held that this was not sufficient evidence

to find that Light’s will was overcome, rendering his confession involuntary.

34 In Henry, 738 N.E.2d at 664, the Court cited Light and its use of the totality-of-

the-circumstances test. Henry was informed during his interrogation that his fingerprints

were found at the crime scene and that someone had identified him as the killer, neither

of which was true. Id. In upholding the admission of Henry’s statement into evidence,

the Court noted that it had “upheld the trial court’s admission of a defendant’s statement

into evidence on facts more egregious than those presented here.” Id. (citing Light, 547

N.E.2d at 1079). The Court also declined Henry’s invitation to depart from the totality-

of-the-circumstances test and create a bright-line rule for deceptive police tactics. Id.

After reviewing this case under the appropriate totality-of-the-circumstances test,

we find that the police, while misleading Palilonis in one particular act, did not conduct a

coercive or deceptive interrogation. Palilonis knew that there were witnesses to the rape,

and the police altering the identity of one of the witnesses was not so egregious that the

false statement overrode Palilonis’s free will. Palilonis’s statements were therefore

voluntarily made, and the trial court did not abuse its discretion in admitting those

statements into evidence.

VI. Sufficiency of the Evidence

Our standard of review with regard to sufficiency claims is well settled. In

reviewing a sufficiency-of-the-evidence claim, this Court does not reweigh the evidence

or judge the credibility of the witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind. Ct.

App. 2010), reh’g denied, trans. denied. We consider only the evidence most favorable

to the verdict and the reasonable inferences drawn therefrom and affirm if the evidence

and those inferences constitute substantial evidence of probative value to support the

35 verdict. Id. Reversal is appropriate only when a reasonable trier of fact would not be

able to form inferences as to each material element of the offense. Id.

Palilonis was convicted of Class B felony rape, which is governed by Indiana

Code section 35-42-4-1 and provides in relevant part:

(a) Except as provided in subsection (b), a person who knowingly or intentionally has sexual intercourse with a member of the opposite sex when: . . . (2) the other person is unaware that the sexual intercourse is occurring . . . commits rape, a Class B felony.

Palilonis contends that there is insufficient evidence of penetration, intent, B.S.’s

unawareness, and lack of consent.

The evidence adduced at trial shows that Palilonis penetrated B.S. and that he had

the intent to do so. Devarenne explicitly testified that he saw Palilonis penetrating B.S.

Tr. p. 894 (“I saw Jason’s penis go inside of her vaginally.”). The nurse who performed

B.S.’s sexual-assault examination also testified that B.S. told her that Palilonis penetrated

her. Id. at 851 (“I told him to get off of me, he had vaginal sex with me.”). Finally,

Detective Luking’s interview with Palilonis after the incident was admitted into evidence,

during which Detective Luking asked Palilonis what he was trying to do when he was

with B.S. that night. Palilonis responded, “[h]ave sex with her.” Id. at 1037. Later in the

interview, Detective Luking asked, “Okay. So you actually were trying to penetrate her

then?” to which Palilonis replied, “Yes I just told you that.” Id. at 1043.

It was also clear that B.S. was unaware that sexual intercourse was occurring and

therefore could not have consented to it. During the interview, the following exchange

took place between Detective Luking and Palilonis:

36 Q Okay, she at no time awoke and said she wanted to have sex, did she?

Id. at 1044. Palilonis himself admitted that B.S. was asleep and did not consent to sex.

This evidence is sufficient to support Palilonis’s conviction for Class B felony

rape.

Affirmed.

MATHIAS, J., and BARNES, J., concur.