MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 18 2020, 9:22 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Angela Field Trapp Curtis T. Hill, Jr. Trapp Law, LLC Attorney General Indianapolis, Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Rashaun Howard, August 18, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2762 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff Barbara Crawford, Judge Trial Court Cause No. 49G01-1805-F3-14537
Vaidik, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020 Page 1 of 14 Case Summary [1] Rashaun Howard appeals his conviction for Level 3 felony rape. He argues that
the trial court erred by admitting his interview with police and that the evidence
is insufficient to support the conviction. We affirm.
Facts and Procedural History [2] The evidence most favorable to the conviction is as follows. Howard and his
biological sister, D.L., were adopted by different families at very young ages,
but they were raised to know each other as siblings, and their families
celebrated some special occasions together. One Saturday in April 2018, D.L.
celebrated her sixteenth birthday with a party at her family’s house. Howard,
who was seventeen, attended the party with his family. As the party ended,
D.L. asked to spend the night at Howard’s house, and her parents agreed. This
was not unusual, since D.L. and Howard only saw each other once or twice a
year for special occasions and they often spent the night at each other’s houses
after the celebration ended.
[3] Howard was scheduled to work at Arby’s, so D.L. played video games in
Howard’s bedroom with his nieces and nephew until he returned. When
Howard returned from work, he took a shower, and his nieces and nephew left
his bedroom. After showering and redressing, Howard sat on a mattress on his
bedroom floor and played video games. Meanwhile, D.L. lay in Howard’s twin
bed, watching YouTube videos and texting friends on her phone. At some
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020 Page 2 of 14 point, Howard “died” in the video game he was playing and moved up onto the
bed with D.L. Tr. Vol. III p. 12. D.L. wanted to go to bed, so she plugged her
phone into a charger on the bedside table and lay down. Howard then moved
so he was lying behind her. D.L. was uncomfortable that Howard was so close
to her and “didn’t want him right there.” Id. at 14. Howard then put his right
arm around D.L.’s side. In response, D.L. rolled over onto her back so she was
facing up, looking at the ceiling. She then sat up to check her phone, saw it was
11:00 p.m., and lay back down on her back. Howard touched her again. He
“started with [her] legs first,” touching her “[a]s if he was going to take [her]
pants off,” but he took his pants off first. Id. at 16-17. He took off D.L.’s pants
and underwear. D.L. said nothing while Howard did this, and he said nothing
to her. Then Howard put his penis inside D.L.’s vagina. D.L. said “Stop,” but
he said, “Shhh.” Id. at 47. D.L. also pushed Howard with her hands but
couldn’t get him off of her. See id. After about five minutes, Howard took his
penis out of D.L.’s vagina and ejaculated on the bedsheets. D.L. lay there “for a
few seconds” before picking up her pants, putting them back on, and going to
the bathroom. Id. at 20. When D.L. returned to Howard’s room, he was back to
sitting on the mattress on the floor playing video games, so she lay down on the
bed and went to sleep.
[4] The next morning, D.L. went with Howard and his family to church. After
church, D.L.’s father picked her up. She was quiet the whole ride home and
didn’t tell her father what happened because she “was confused” and “didn’t
think that [her] own brother would do something like that to [her].” Id. at 24.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020 Page 3 of 14 D.L.’s mother later testified that when D.L. got home, she “seemed really
tired” and “slept the rest of the entire day.” Tr. Vol. II p. 207.
[5] On Monday, D.L. went to school. Her friend, T.A., noticed that D.L. was “a
little off” and asked what was going on. Id. at 228. D.L. told T.A. what
happened with Howard on Saturday night. T.A. then told a teacher that
something had happened to D.L. and that she needed to talk to the police. A
school-resource officer spoke briefly to D.L. about what was going on. During
their talk, D.L. was “very visibly upset” and spoke in a “[c]rying, shaky voice.”
Id. at 239. D.L.’s parents were then called to the school, and after they arrived,
the family went to the Child Advocacy Center and spoke with Detective
Michael Margetson. After telling Detective Margetson what had happened,
D.L. and her mother went to Indiana University Health Methodist Hospital to
complete a sexual-assault examination. As D.L. was being examined, Detective
Margetson went to D.L.’s house to collect her clothing from Saturday night,
including her underwear, which were stained with blood. See Ex. 11A.
[6] Detective Margetson then contacted the Howard family and asked to speak to
Howard and his parents about “an investigation regarding his sister [D.L.].” Tr.
Vol. II p. 14. Howard and his parents met Detective Margetson at the Child
Advocacy Center, and he told them there was an allegation of “inappropriate
conduct between [Howard] and [D.L.].” Id. at 26. Detective Margetson
explained that because Howard was under eighteen years old, a parent had to
be present during the interview. Howard’s father accompanied Howard into the
interview room, and Detective Margetson advised them of Howard’s juvenile
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020 Page 4 of 14 rights. After advising them of his rights, Detective Margetson took Howard and
his father into a different room, where there was no recording equipment, so
that Howard and his father could discuss whether they wanted to speak with
the detective. See Tr. Vol. III pp. 122-23. After a few minutes, Howard and his
father told Detective Margetson they would speak with him. Detective
Margetson then had both Howard and his father sign a juvenile waiver form
and began the interview.
[7] Initially, Howard admitted touching D.L. inappropriately on “her chest and
butt on accident,” but he then said he thought “somethin’ else happened.” Ex.
21. The following exchange occurred:
[Detective Margetson]: Well the ‘somethin’ else happened’ was kinda what the specific of what I need to get to. Because there’s a pretty big part that’s bein’ left out. Which is pretty important for this discussion. And that’s what I want you to tell me what the somethin’ was that got left out. And if you don’t feel comfortable discussing this, you can talk to your dad whether you wanna stay – for him or not. I mean this – this is – this is something that’s gonna come out no matter what. Uh, but it – mean, I don’t know if you feel comfortable saying this stuff in front of him or not but I – I need you to n- tell me the truth about what happened, okay?
[Howard]: Mm-hmm. I think it would be easiest . . .
[Howard’s father]: What’s that?
[Howard]: If you weren’t in here. So I can tell him what happened.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020 Page 5 of 14 [Detective Margetson]: Are you okay with that?
[Howard’s father]: Yeah.
Id. Howard’s father then left the room, and Detective Margetson continued the
interview. Howard admitted that he “took things a bit way too far, with the
touching,” and “it got outta hand.” Id. Howard said that he put his penis inside
D.L.’s vagina, that she had told him to “stop,” and that he did not listen and
“kept going.” Id. Howard further stated that when he touched D.L.’s legs, she
moved his hand away “twice,” but he put it back each time. Id. Howard also
told Detective Margetson that D.L. tried to push him off with her hands and
told him to stop a second time. See id. Howard explained that after the second
time D.L. told him to stop, he “realized what [he] was doing” and “got off”
D.L. Id. Following the interview, Howard was arrested and charged with Level
3 felony rape when compelled by force or imminent threat of force.
[8] In April 2019, Howard moved to suppress his interview with Detective
Margetson. He argued that Detective Margetson did not give him and his
parents adequate notice of the charges against him before they signed the
juvenile waiver form. See Tr. Vol. II p. 89. The State responded that Detective
Margetson told Howard and his parents there were allegations of misconduct
made by D.L. against Howard and that was all that was required of him. See id.
at 91. The State also noted that at the time of the interview, Detective
Margetson did not know what charges would be filed since charging decisions
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020 Page 6 of 14 are made by the prosecutor. See id. The trial court denied Howard’s motion to
suppress. Howard’s case then proceeded to a jury trial in September 2019.
[9] At trial, Howard admitted that he had sexual intercourse with D.L., so the sole
issue before the jury was determining whether there was force. In addition to
the details set forth above, D.L. testified that she did not want to have sex with
Howard. See Tr. Vol. III p. 19. D.L. also said that she started her period on
Monday, the day she was examined at the hospital. See id. at 44. Forensic Nurse
Jennifer Waters-Gillen testified that she examined D.L. and found that D.L.
had started her period that same day. Waters-Gillen said that during the exam,
D.L. was “quiet, crying, looking down at the floor, wiping her tears. Very
reserved. Didn’t really, didn’t say much, just more cried.” Id. at 62. Waters-
Gillen stated that D.L. told her that she said “no” to Howard several times and
that Howard forced his penis inside her vagina. See id. at 78. The State also
played an audio recording of Howard’s interview with Detective Margetson for
the jury.
[10] During closing arguments, the defense argued that D.L.’s testimony was
inconsistent, that the blood found in her underwear was from her period, and
that D.L. was accusing Howard of rape because she regretted having sex with
him. See id. at 207, 211. In response, the prosecutor argued that D.L.’s
testimony was consistent, that D.L. did not start her period until Monday so the
blood stains on her underwear from Saturday night could indicate force, and
that Howard owed D.L. “a duty as another human being” and “it might have
been a greater duty because he is her biological brother. She trusted him . . . and
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020 Page 7 of 14 he violated that trust.” Id. at 216-17. The jury found Howard guilty. The trial
court sentenced Howard to eight years, with two years executed in the
Department of Correction, two years to be served on home detention through
Community Corrections, and four years suspended.
[11] Howard now appeals.
Discussion and Decision I. Admission of Interview [12] Howard contends that certain procedural safeguards for the waiver of a
juvenile’s constitutional rights were not followed and that therefore the trial
court erred in admitting his interview with Detective Margetson into evidence.
[13] The State bears the burden of proving beyond a reasonable doubt that the
juvenile received all the protections required by Indiana Code section 31-32-5-1
and that both the juvenile and their parent knowingly and voluntarily waived
the juvenile’s rights. D.M. v. State, 949 N.E.2d 327, 334-35 (Ind. 2011). We
review a trial court’s discretionary decision to admit evidence only for an abuse
of discretion. Fairbanks v. State, 119 N.E.3d 564, 567 (Ind. 2019), cert. denied.
The admission of evidence constitutes an abuse of discretion when it is clearly
against the logic and effect of the facts and circumstances. Id. at 568.
[14] Indiana Code section 31-32-5-1 provides, in relevant part:
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020 Page 8 of 14 Any rights guaranteed to a child under the Constitution of the United States, the Constitution of the State of Indiana, or any other law may be waived only:
* * * *
(2) by the child’s parent . . . if:
(A) that person knowingly and voluntarily waives the right;
(B) that person has no interest adverse to the child;
(C) meaningful consultation has occurred between that person and the child; and
(D) the child knowingly and voluntarily joins with the waiver[.]
Furthermore, in determining whether any waiver of rights during custodial
interrogation was made knowingly and voluntarily, the trial court shall consider
all the circumstances of the waiver, including the following:
(1) The child’s physical, mental, and emotional maturity.
(2) Whether the child or the child’s parent, guardian, custodian, or attorney understood the consequences of the child’s statements.
(3) Whether the child and the child’s parent, guardian, or custodian had been informed of the delinquent act with which the child was charged or of which the child was suspected.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020 Page 9 of 14 (4) The length of time the child was held in custody before consulting with the child’s parent, guardian, or custodian.
(5) Whether there was any coercion, force, or inducement.
(6) Whether the child and the child’s parent, guardian, or custodian had been advised of the child’s right to remain silent and to the appointment of counsel.
Ind. Code § 31-32-5-4.
[15] Howard argues that because neither he nor his father was told that he was
suspected of rape before signing the waiver, any consultation he had with his
father would not have been meaningful and the waiver was not knowing and
voluntary. See Appellant’s Br. p. 26. In other words, Howard argues that both
the meaningful-consultation and knowing-and-voluntary requirements were not
met because Detective Margetson did not specifically advise him and his father
that he was investigating an allegation of rape.
[16] Regarding the meaningful-consultation issue, we have held that a valid waiver
does not require that an individual be informed of all information useful in
making his decision or all information that might affect his decision to confess.
Estrada v. State, 969 N.E.2d 1032, 1042 (Ind. Ct. App. 2012) (citing Colorado v
Spring, 479 U.S. 564, 576-77 (1987)), trans. denied. Here, Detective Margetson’s
pre-waiver advisements that he was investigating “inappropriate conduct
between [Howard] and [D.L.],” Tr. Vol. III p. 26, were sufficient to put
Howard and his father on notice that this was a serious matter, see Estrada, 969
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020 Page 10 of 14 N.E.2d at 1043. As such, Howard and his father were given an opportunity for
meaningful consultation before signing the waiver.
[17] On the knowing-and-voluntary issue, it is true that Howard and his father were
not specifically told that a rape charge was possible. However, informing a
juvenile and their parents of the act with which the child is charged or of which
the child is suspected is but one of the six nonexclusive factors to be considered
when determining whether a waiver is made knowingly and voluntarily.
Estrada, 969 N.E.2d at 1042. Standing alone, this factor is insufficient to render
a waiver unknowing and involuntary. Id.; see also Tingle v. State, 632 N.E.2d
345, 352-53 (Ind. 1994) (rejecting an argument that defendant’s waiver was not
knowing and voluntary where a detective did not inform him or his
grandmother of the possible offenses to be charged, that he could be charged as
an adult, and that he could face a severe sentence). Instead, the trial court must
consider all the circumstances of the waiver to determine whether it was made
knowingly and voluntarily. Estrada, 969 N.E.2d at 1042.
[18] Here, seventeen-year-old Howard was just over a month shy of his eighteenth
birthday when Detective Margetson called his parents, asking to speak with
Howard about “an investigation regarding his sister [D.L.].” Tr. Vol. III p. 14.
Howard and his parents voluntarily went to the Child Advocacy Center to
speak to Detective Margetson. When the family arrived, Detective Margetson
told them there was an allegation of “inappropriate conduct between [Howard]
and [D.L.].” Id. at 26. Howard and his father accompanied Detective
Margetson to an interview room, where he read them Howard’s rights. Howard
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020 Page 11 of 14 and his father were then taken to a separate room, where they spoke privately
about whether they wanted to speak to Detective Margetson. After a brief
period, Howard and his father emerged and told Detective Margetson they
would speak with him. Detective Margetson then advised Howard of his rights
again, before both Howard and his father signed the waiver form. There is no
evidence that Howard was physically, mentally, or emotionally immature for
his age or that he or his father were coerced, forced, or induced to sign the
waiver.1
[19] For all of these reasons, we find that the waiver was knowing and voluntary
and that therefore the trial court did not abuse its discretion in admitting
Howard’s interview into evidence.
II. Insufficient Evidence [20] Howard next challenges the sufficiency of the evidence by arguing that the State
failed to prove force beyond a reasonable doubt. When reviewing sufficiency-of-
the-evidence claims, we neither reweigh the evidence nor judge the credibility of
witnesses. Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015). We will only
consider the evidence supporting the verdict and any reasonable inferences that
can be drawn from the evidence. Id. A conviction will be affirmed if there is
1 To the extent that Howard also argues that his waiver was not knowing and voluntary due to his “mental and emotional maturity,” he does not point to any evidence showing that the almost eighteen-year-old high- school junior, who also maintained a job at Arby’s, lacked maturity or education such that the waiver was not knowing or voluntary.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020 Page 12 of 14 substantial evidence of probative value to support each element of the offense
such that a reasonable trier of fact could have found the defendant guilty
beyond a reasonable doubt. Id.
[21] Our holding that the interview was properly admitted is fatal to Howard’s
sufficiency argument. During the interview, Howard admitted that D.L. moved
his hand off her side twice, that she said “stop” twice, and that she tried to push
him off her with her hands. See Exs. 20 (audio recording), 21 (transcript). And
Howard admitted that despite D.L.’s attempts to push him away and get him to
stop, he inserted his penis into her vagina. See Exs. 20, 21. We note that on
appeal, Howard refers to his interview as a “confession.” Appellant’s Br. p. 28.
In short, Howard himself admitted that he used force to have sexual intercourse
with D.L.
[22] Moreover, D.L.’s testimony alone is sufficient to prove force. D.L. testified that
she did not want to have sexual intercourse with Howard, that she said “stop,”
and that she tried to push him off her. To the extent that Howard argues D.L.’s
testimony is inconsistent, it was up to the jury to resolve any inconsistencies.
See Perry v. State, 78 N.E.3d 1, 8 (Ind. Ct. App. 2017).2
2 Our finding that the State presented sufficient evidence to support the conviction is fatal to Howard’s argument that the trial court erred by denying his motion for a directed verdict. Accordingly, we need not separately address this argument. Howard also argues that D.L.’s testimony was incredibly dubious and that therefore the incredible-dubiosity rule applies to this case. However, that rule does not apply here because Howard’s own statement corroborates what D.L. said. See Moore v. State, 27 N.E.3d 749, 757-58 (Ind. 2015).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020 Page 13 of 14 [23] Accordingly, there was sufficient evidence for the jury to find that the State
proved force beyond a reasonable doubt.3
[24] Affirmed.
Bailey, J., and Baker, Sr.J., concur.
3 Howard makes two additional arguments on appeal, both of which are without merit.
First, Howard contends that the trial court abused its discretion by holding a sidebar during voir dire after the prosecutor objected to one of the defense’s questions. There is no evidence that the prospective jurors overheard any of the sidebar discussion such that Howard was prejudiced. As the State points out, sidebars are simply a procedural means by which to keep the parties on track when selecting a jury. Next, Howard asserts that the prosecutor committed prosecutorial misconduct during her rebuttal closing argument when she said (1) that D.L.’s statements were consistent, (2) that Howard owed D.L. a duty “as another human being . . . it might have been a greater duty because he is her biological brother,” and (3) that the blood stain on D.L.’s underwear from Saturday night were not from her period (that she started on Monday) and could be evidence of force. Howard concedes he did not object, move for an admonishment, or request a mistrial after any of the alleged misconduct and therefore must show fundamental error. And we see no fundamental error here because all three statements were based on evidence. See Neville v. State, 976 N.E.2d 1252, 1260 (Ind. Ct. App. 2012) (attorney may properly argue any logical or reasonable conclusions based on their own analysis of the evidence). Accordingly, we see no prosecutorial misconduct here, let alone enough to establish fundamental error.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020 Page 14 of 14