P.A. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 29, 2015
• Docket: 49A02-1407-JV-450
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jan 29 2015, 10:02 am 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 ATTORNEYS FOR APPELLEE Matthew D. Anglemeyer Gregory F. Zoeller Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

P.A., January 29, 2015

Appellant, Court of Appeals Cause No. 49A02-1407-JV-450 v. Appeal from the Marion Superior Court, Juvenile Division Honorable Geoffrey Gaither, STATE OF INDIANA, Magistrate Appellee. Cause No. 49D09-1308-JD-002386

Friedlander, Judge.

[1] P.A. appeals his delinquency true findings for acts that would constitute two

counts of class B felony child molesting if committed by an adult. He presents

one issue for review, which we restate as follows: Did the juvenile court

Court of Appeals of Indiana | Memorandum Decision 49A02-1407-JV-450 | January 29, 2015 Page 1 of 5 commit fundamental error when it allowed the State to make an offer to prove

regarding the substance of excluded evidence?

[2] We affirm.

[3] P.A. and A.B. are paternal cousins. In the summer of 2012, P.A. stayed the

night at A.B.’s house for his first and only time. P.A. and A.B. were sixteen

and eleven years old, respectively. The two, along with one of A.B.’s friends,

eventually relaxed on the living room floor while they talked and watched

television together. After the friend fell asleep, P.A. pulled down A.B.’s pajama

bottoms and placed his penis in her vagina and then in her anus. A.B. did not

react to her older cousin’s actions. When he was done, P.A. pulled up A.B.’s

pajama bottoms and turned over. The next morning he asked if she was okay.

A.B. testified that she did not report the incident immediately because she was

afraid she would get in trouble. She disclosed the abuse about a year later

during a conversation with her mother and sisters about “being safe around

boys”. Transcript at 49.

[4] The police were called, and A.B.’s disclosures were investigated by Detective

Justin Hickman of the Indianapolis Metropolitan Police Department. After

taking a report from A.B., Detective Hickman met with P.A. and his mother on

August 19, 2013. During a video recorded interview, P.A. admitted to having

had vaginal and anal intercourse with A.B. He was taken into custody, and the

State filed a petition alleging P.A. was delinquent for having committed acts

Court of Appeals of Indiana | Memorandum Decision 49A02-1407-JV-450 | January 29, 2015 Page 2 of 5 that would be three counts of child molesting, two class B felonies and one class

C felony, if committed by an adult.

[5] A.B. and her mother testified at the denial hearing. Detective Hickman was

then called by the State. P.A. objected to the admission of the videotaped

statement due to procedural irregularities. Specifically, after securing signatures

on a juvenile waiver of rights form, Detective Hickman said, “mom do you

want to come back out to the waiting room with me right now to wait with

grandma”, and P.A.’s mother left. Id. at 79. P.A. claimed this was a denial of

his right to have his mother present during the custodial interrogation. The

juvenile court agreed and excluded the videotaped statement from evidence.

[6] The State requested that the court view the initial portion of the video and

reconsider its ruling. After viewing the portion of the video up to and including

when the mother left, the court reaffirmed its ruling. Immediately thereafter,

the State indicated its desire to make an offer to prove, and P.A. did not object.

The State proceeded to detail what the video would reflect if it were permitted

into evidence. This included P.A.’s eventual confession as to each of the

delinquency allegations.

[7] At the conclusion of the fact-finding hearing, the court entered true findings

with respect to the two class B felony allegations and a not true finding with

respect to the class C felony allegation.1 P.A. now appeals.

1 The evidence for this allegation would have come exclusively from P.A.’s statement, which was not admitted into evidence.

Court of Appeals of Indiana | Memorandum Decision 49A02-1407-JV-450 | January 29, 2015 Page 3 of 5 [8] P.A. asserts the novel argument that the trial court committed fundamental

error by allowing the State to make an offer to prove regarding his videotaped

statement. He claims there was no legally justifiable reason to make the offer of

proof2 and the State must have done so to influence the court in a close case.

[9] It is well established that fundamental error is “an extremely narrow exception

to the waiver rule where the defendant faces the heavy burden of showing that

the alleged errors are so prejudicial to the defendant’s rights as to ‘make a fair

trial impossible.’” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (quoting Benson

v. State, 762 N.E.2d 748, 756 (Ind. 2002)). “[F]undamental error is a daunting

standard that applies ‘only in egregious circumstances.’” Knapp v. State, 9

N.E.3d 1274, 1281 (Ind. 2014) (quoting Brown v. State, 799 N.E.2d 1064, 1068

(Ind. 2003)), cert. denied.

[10] P.A. has failed to establish fundamental error. First, he makes absolutely no

effort on appeal to establish that the videotape was in fact inadmissible under

Indiana law. His argument just assumes this to be so. See, e.g. Appellant’s Brief

at 10 (“[t]he State put inadmissible evidence in front of the trier of fact using a

procedural process to which it was not entitled to bolster a close case, thereby

tipping the balance in favor of a true finding”). Moreover, P.A.’s argument that

he was prejudiced by the alleged error belies the longstanding judicial-

temperance presumption in which “[w]e presume that the trial judge is aware of

2 P.A. contends that the State had no right to appeal the suppression ruling and, moreover, that the details of his statement would be irrelevant when reviewing the propriety of the ruling, which was based on procedural irregularities.

Court of Appeals of Indiana | Memorandum Decision 49A02-1407-JV-450 | January 29, 2015 Page 4 of 5 and knows the law and considers only evidence properly before him or her in

reaching a decision.” Hinesley v. State, 999 N.E.2d 975, 987 (Ind. Ct. App.

2014), trans. denied. See also Conley v. State, 972 N.E.2d 864, 873 (Ind. 2012)

(“[t]he risk of prejudice is quelled when the evidence is solely before the trial

court”).

[11] The juvenile court ruled that the videotaped statement was inadmissible. Upon

urging from the State, the court reconsidered its ruling but once again excluded

the evidence. Regardless of the purpose behind the State’s offer to prove, it is

evident from the record before us that the juvenile court did not consider P.A.’s

statement when making its findings. We reject P.A.’s groundless invitation to

presume otherwise and to impugn the integrity of the juvenile court.

Accordingly, even assuming that the evidence was inadmissible and the offer to

prove was improper, P.A. has not established prejudice, let alone error “so

prejudicial to [his] rights as to ‘make a fair trial impossible.’” Ryan v. State, 9

N.E.3d at 668 (quoting Benson v. State, 762 N.E.2d at 756).

Judgment affirmed.

Kirsch, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1407-JV-450 | January 29, 2015 Page 5 of 5