Pursuant to Ind. Appellate Rule 65(D), this Oct 31 2013, 5:36 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:
JUNE E. BULES GREGORY F. ZOELLER Plymouth, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
STEVEN L. O’BRYANT, ) ) Appellant-Defendant, ) ) vs. ) No. 75A03-1301-CR-3 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE STARKE CIRCUIT COURT The Honorable John M. Marnocha, Special Judge Cause No. 75C01-1208-FA-6
October 31, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge Appellant-defendant Steven L. O’Bryant challenges the validity of his convictions
on four counts of Child Molesting,1 a class A felony. O’Bryant asserts that his
convictions must be reversed because the trial court erroneously allowed the State to
present the victim’s testimony via closed circuit television, that the jury was improperly
instructed, that the State’s information regarding one of the counts was defective, that the
deputy prosecutor committed misconduct, and that the trial court erred in prohibiting
O’Bryant from admitting part of a deposition of a witness into evidence for impeachment
purposes that allegedly contained inconsistent statements from her trial testimony.
We conclude that O’Bryant failed to establish prejudice when the trial court
permitted the victim to testify via closed circuit television, and that O’Bryant has waived
the issues concerning the jury instructions, the alleged defective charging information,
and the claim of prosecutorial misconduct. Finally, we conclude that the trial court did
not err in excluding a portion of the witness’s deposition testimony because there was no
inconsistency that existed between it and her trial testimony. Thus, we affirm the
judgment of the trial court.
FACTS
B.C., an eleven-year-old boy, lived in Starke County with his mother, S.C., her
boyfriend, and some other relatives. Sometime in April 2012, S.C. permitted O’Bryant, a
1 Ind. Code § 35-42-4-3(A)(1). 2 forty-three-year-old man, to move into the residence. S.C. and O’Bryant had known each
other since she was a teenager.
At some point, O’Bryant wanted B.C. to engage in sexual activity with him.
Although B.C. initially resisted, O’Bryant was persistent and eventually pressured B.C.
until B.C. eventually “gave in” to these demands. Tr. p. 57. The State charged O’Bryant
with four class A felony child molesting charges, alleging that between March 30, 2012
and May 12, 2012, O’Bryant engaged in the following sex acts with B.C.: 1) O’Bryant
put his penis in B.C.’s anus; 2) O’Bryant placed a vibrating toothbrush in B.C.’s anus; 3)
O’Bryant compelled B.C. to perform oral sex on him; and 4) O’Bryant forced B.C. to
place his tongue inside his anus.
B.C. did not tell anyone about the molestations because O’Bryant threatened to
“make him disappear from the face of the earth” if he did, and B.C. believed this threat.
Tr. p. 57, 64. The last molestation occurred on May 12, 2012, and S.C. told O’Bryant to
leave the next day because she felt like O’Bryant had been stalking her. As a result, S.C.
put O’Bryant’s belongings in trash bags and removed them from the residence.
In July, B.C. told his aunt, Penny Back, what O’Bryant had done to him. Back
then contacted S.C. and the police were notified. Thereafter, B.C. was interviewed and
given a physical examination.
The State filed the charges against O’Bryant on August 17, 2012. Thereafter,
O’Bryant filed a motion for an early trial on September 11, 2012. On October 30, 2012,
the State filed a request for a “protected person’s hearing” and a motion to have B.C.
3 testify at trial via closed circuit television. Appellant’s App. p. 25-28. O’Bryant
objected, claiming that the State’s motion was untimely. However, O’Bryant declined
the trial court’s offer to continue the trial because a continuance would conflict with his
previously-filed motion for an early trial. As a result, B.C. testified via a closed circuit
television at trial.
During Back’s cross examination, O’Bryant attempted to have a portion of her
deposition admitted at trial for the purpose of impeaching her with a statement that
allegedly conflicted with her trial testimony. However, the trial court denied O’Bryant’s
request. The deputy prosecutor remarked during closing argument about a letter that
O’Bryant had written to Back that had been admitted into evidence, and commented on
O’Bryant’s tattoos. O’Bryant did not object to either comment. O’Bryant also failed to
object to the trial court’s final instructions at trial. Finally, O’Bryant did not move to
dismiss the charging information that he complains about for the first time on appeal.
Following the presentation of the evidence, a jury convicted O’Bryant on Counts
I-III as charged, but acquitted him on Count IV. O’Bryant was subsequently sentenced to
an aggregate term of 150 years of incarceration and he now appeals.
4 DISCUSSION AND DECISION
I. Testimony via Closed Circuit Television
O’Bryant first contends that his convictions must be reversed because the trial
court erred in permitting B.C. to testify via closed circuit television. Specifically,
O’Bryant argues that the trial court should not have allowed B.C.’s testimony to be
presented in this fashion because the State failed to give timely notice of its intent to have
B.C. testify on closed circuit television.
In resolving this issue, we initially observe that the presentation of a witness’s
testimony by closed circuit television pursuant to the Protected Persons Act, Indiana
Code section 35-37-4-8, is within the trial court’s sound discretion. We will not reverse
absent a showing of a manifest abuse of discretion that results in the denial of a fair trial.
A.R.M. v. State, 968 N.E.2d 820, 824 (Ind. Ct. App. 2012). An abuse of discretion
occurs when the trial court’s decision is clearly against the logic and effect of the facts
and circumstances before it. Conley v. State, 972 N.E.2d 864, 871 (Ind. 2012).
Additionally, a trial court’s evidentiary ruling will be sustained on appeal on any
legal basis that is apparent in the record, even though it may not be the grounds that the
trial court enunciated. Jester v. State, 724 N.E.2d 235, 240 (Ind. 2000). Generally, errors
in the admission or exclusion of evidence are to be disregarded as harmless unless they
affect the substantial rights of a party. Kirk v. State, 974 N.E.2d 1059, 1066 (Ind. Ct.
App. 2012), trans. denied.
5 Under the Protected Persons Act, a prosecutor may, when certain criteria are
present, request that the victim in a child molesting case testify via closed circuit
television rather than in the court room in the defendant’s presence. I.C. § 35-37-4-
8(e)(3). The statute requires that the prosecuting attorney inform the defense of the
State’s intention to have the child victim testify via closed circuit television at least ten
days before the trial.
On October 30, 2012, the prosecutor filed a request with the trial court for a
protected persons hearing regarding B.C., as well as a request for B.C. to testify via
closed circuit television. However, O’Bryant’s jury trial was scheduled to begin on
November 7, 2012. Thus, the State’s request for B.C. to testify via closed circuit
television was filed only eight days prior to trial.
At a pretrial hearing that was conducted on November 5, 2012, O’Bryant objected
to the State’s motion allowing B.C. to testify by closed circuit television solely on the
ground that the State’s notice was late. However, O’Bryant declined the offer to continue
the trial because the continuance would conflict with his previously-filed early trial
motion. At this juncture, O’Bryant argues that the trial court abused its discretion when it
allowed B.C. to testify by way of the television only because the State failed to timely
notify the defense its intent to have B.C. testify in this fashion. Appellant’s Br. p. 11-15.
Relevant here is this Court’s opinion in Broude v. State, where it was determined
that the defendant was obligated to prove that he was prejudiced by the State’s failure to
6 give timely notice of its intent to have the victim testify by closed circuit television. 956
N.E.2d 130, 134-35 (Ind. Ct. App. 2011), trans. denied.
Indiana Code section 35-37-4-8 provides that the State must give the defendant ten
days notice that it intends to have the victim testify by closed circuit television. Hence, in
this case, the trial court was only required to grant O’Bryant a two-day continuance of the
trial because O’Bryant already had received an eight-day notice from the State regarding
its intent.
More specifically, the record shows that O’Bryant filed his early trial request on
September 11, 2012. And under Criminal Rule 4(B), O’Bryant’s trial was to commence
within seventy days of that date. Therefore, to comply with O’Bryant’s early trial
request, O’Bryant’s trial had to begin no later than November 20, 2012. Hence, it
appears that a two-day continuance would not have affected O’Bryant’s right to an early
trial. Nonetheless, the trial judge observed that if there was a continuance, it would have
to be for nearly four weeks because other trials had been scheduled starting the week
after O’Bryant’s trial was to commence. As a result, the State’s late notice would have
only have resulted in a minor conflict with O’Bryant’s early trial right because the trial
would not be held until the first week in December, which was approximately thirteen
days past the November 20 date.
Even more compelling, O’Bryant did not object at the pretrial hearing, or at any
time thereafter, claiming that the State’s late notice would affect his ability to prepare for
trial and defend the case. Indeed, an examination of the trial transcript demonstrates that
7 the late notice had no adverse consequences on O’Bryant’s preparation of his defense and
his ability to exercise his confrontation and cross-examination rights. That said, because
O’Bryant makes no claim on appeal that he sustained any prejudice that resulted from the
State’s late filing of the notice under the Protected Persons Statute, we conclude that the
trial court did not abuse its discretion in permitting B.C. to testify by way of closed
circuit television.
II. Jury Instructions
O’Bryant next claims that the trial court improperly instructed the jury as to what
it should do if the State failed to prove that the charged offenses were committed beyond
a reasonable doubt. Although O’Bryant did not object to the instructions at trial, he
claims that fundamental error occurred.
O’Bryant’s complaint centers around the instructions regarding the elements of the
crimes that included the following language: “If the State failed to prove each of these
elements beyond a reasonable doubt, you must find the Defendant not guilty. If the State
failed to prove each of these elements beyond a reasonable doubt, you may find the
Defendant guilty of . . . .”
Appellant’s App. p. 44-47.
Although there appears to be no issue with regard to the first sentence quoted
above, it is readily apparent that the second sentence is erroneous. However, O’Bryant
did not object at trial to the jury instructions. Thus, his claim is waived. Baker v. State,
948 N.E.2d 1169, 1178 (Ind. 2011).
8 In an effort to circumvent waiver, O’Bryant contends that the above instruction
amounted to fundamental error. To be considered “fundamental,” the error must
represent a blatant violation of basic principles rendering the trial unfair to the defendant
and “thereby depriving the defendant of fundamental due process.” Id. at 1178. In other
words, the error must be so prejudicial to the defendant’s rights as to make a fair trial
impossible. Id.
In considering O’Bryant’s claim of fundamental error with regard to the above
instruction, we examine the allegedly erroneous instructions in the context of all of the
relevant information given to the jury, including other instructions. Munford v. State,
923 N.E.2d 11, 14 (Ind. Ct. App. 2010). Where a consideration of such information as a
whole establishes that the instructions did not mislead the jury as to a correct
understanding of the law, there is no due process violation and consequently no
fundamental error. Dickenson v. State, 835 N.E.2d 542, 549 (Ind. Ct. App. 2005).
Here, it is apparent that the second sentence in the instruction was mistyped
because it should have read that “If the State did prove each of these elements beyond a
reasonable doubt, you may find the defendant guilty of [the offense of] . . . .” Appellant’s
App. p. 20-23. However, while the erroneous sentence was submitted to the jury, other
instructions that the trial court gave provided the jury with the correct information,
including O’Bryant’s presumed innocence, that it was the State’s burden to prove all of
the elements of the charged offenses beyond a reasonable doubt, and that if the jury had a
9 reasonable doubt it should find O’Bryant not guilty. Appellant’s App. p. 13, 34, 38, 42.
The trial court also instructed the jury to consider the instructions as a whole.
When considering the above, it is apparent that the jury was sufficiently apprised
that if the State failed to prove all of the elements of the offenses beyond a reasonable
doubt, then the jury could not find O’Bryant guilty. Therefore, under these
circumstances, the improper sentence in the instruction quoted above did not amount to
fundamental error. See Munford (holding that although erroneous information was set
forth in one of the jury instructions, fundamental error did not result and reversal was not
required because correct statements of the law were contained in other instructions). As a
result, O’Bryant has waived the issue and he does not prevail on his fundamental error
claim.
III. Defect—Charging Information
O’Bryant next claims that his conviction for child molesting alleged in Count III
must be vacated because the charging information failed to allege sufficient facts that
constituted deviate sexual conduct, which is an essential element of the crime. O’Bryant
also claims that his conviction on this Count must be vacated because the final instruction
with regard to this offense “directs the jury to return a verdict of guilty upon the finding
of facts that do not constitute an essential element of the crime charged.” Appellant’s Br.
p. 21.
Notwithstanding O’Bryant’s claims, we note that he did not challenge the
sufficiency of the charging information at the trial court level. More particularly,
10 O’Bryant did not file a motion to dismiss this charge prior to trial. Thus, O’Bryant has
also waived this issue. Edelen v. State, 947 N.E.2d 1024, 1032-33 (Ind. Ct. App. 2011).
However, once again, in an effort to circumvent waiver, O’Bryant contends that
the alleged defective charging information amounted to fundamental error. The purpose
of a charging information is to provide the defendant with notice of the crime for which
he or she is charged so a defense can be prepared. Gilliland v. State, 979 N.E.2d 1049,
1060 (Ind. Ct. App. 2012). When the charging information enables the defendant, the
court, and the jury to determine the crime for which the conviction is sought, the charging
information satisfies due process requirements. Gaby v. State, 949 N.W.2d 870, 876
(Ind. Ct. App. 2011). Finally, we note that the State is not required to include detailed
factual allegations in the charging information. Gilliland, 979 N.E.2d at 1061.
In this case, the charging information with regard to Count III provided that
To convict the Defendant of Count III, . . . the State must have proven the following elements beyond a reasonable doubt:
1. The Defendant, . . . 2. Knowingly or intentionally 3. Performed or submitted to deviate sexual conduct with [B.C.], that is: Steven L. O’Bryant had [B.C.] place his mouth and tongue onto Steven L. O’Bryant’s anus; when 4. [B.C.] was under fourteen (14) years of age; and 5. Steven L. O’Bryant was at least twenty-one (21) years of age.
Appellant’s App. p. 34.
Child molesting is a class A felony where the act involves a child under fourteen
years of age and a defendant who is at least twenty-one years of age and the act
11 committed is either sexual intercourse or deviate sexual conduct. Ind. Code § 35-42-4-
3(a)(1). “Deviate sexual conduct” is defined as an act involving:
(1) A sex organ of one person and the mouth or anus of another person; or (2) The penetration of the sex organ or anus of a person by an object.
I.C. § 35-41-1-9.
It is apparent that Count III as charged falls within subsection (2) of the statute
quoted above, with the “object” being B.C.’s tongue. In our view, the charging
information enabled O’Bryant to determine that he was charged with forcing B.C. to
perform deviate sexual conduct by causing B.C. to use his tongue to penetrate O’Bryant’s
anus in violation of the statute. In short, we conclude that O’Bryant had sufficient notice
regarding the crime of which he was charged.
We also note that the probable cause affidavit in this case, which was filed with
the charging information, provided additional information that apprised O’Bryant of the
crime under Count III. More particularly, the probable cause affidavit states that “[B.C.]
described one time that O’Bryant made [B.C.] stick his tongue in his butt. [B.C.] stated
that this made him feel weird.” Appellant’s App. p. 2.
When considering the charging information and probable cause affidavit, it is
apparent that O’Bryant was sufficiently apprised that he was charged with committing
child molesting when he engaged in sexual deviate conduct under section 35-41-1-9(2).
Because O’Bryant had sufficient notice as to the offense charged in Count III, he cannot
demonstrate fundamental error. Thus, O’Bryant does not prevail on this issue.
12 Finally, although O’Bryant also contends that the jury was erroneously instructed
as to the elements with regard to this Count, he did not object to the instruction regarding
the charge and does not claim that fundamental error occurred. As a result, the issue is
waived. Curtis v. State, 948 N.E.2d 1143, 1148 (Ind. 2011).
IV. Prosecutorial Misconduct
O’Bryant next contends that his convictions must be reversed because various
comments that the deputy prosecutor made during closing argument rose to the level of
fundamental error. Specifically, O’Bryant argues that even though he did not object, the
deputy prosecutor’s reference to a letter that O’Bryant wrote and mailed to Back
prejudiced him and denied him the right to a fair trial. O’Bryant further alleges that the
deputy prosecutor “completely misstated that evidence during closing argument.”
Appellant’s Br. p. 22-23.
O’Bryant further maintains that the deputy prosecutor engaged in misconduct
when she commented on his tattoos. O’Bryant claims that the deputy prosecutor made
these remarks to incense the jury and erroneously portray him as a “tough guy.” Id. at 24.
Once again, O’Bryant has waived the issue because he made no objection at trial
and asserts that the deputy prosecutor’s comments rose to the level of fundamental error.
However, we cannot agree that fundamental error occurred because O’Bryant has failed
to show that the prosecutor’s comments—even assuming they rose to the level of
prosecutorial misconduct—placed him in a position of “grave peril.” Delarosa v. State,
938 N.E.2d 690, 696 (Ind. 2010). In the event that prosecutorial misconduct is
13 established, the gravity of the peril is determined by considering the probable persuasive
effect of the misconduct on the jury’s decision, rather than on the degree of the
impropriety of the misconduct. Id. The element of the harm necessary to establish
fundamental error is not demonstrated by the fact that the defendant was convicted.
Rather, it depends on whether the defendant’s right to a fair trial was detrimentally
affected by the denial of procedural opportunities for the ascertainment of truth to which
the defendant should have been entitled. Neville v. State, 976 N.E.2d 1252, 1259 (Ind.
Ct. App. 2012), trans. denied.
We first note that the letter O’Bryant wrote to Back was relevant because he
denied ever molesting B.C. O’Bryant argues that the deputy prosecutor was attempting
to mislead the jury into believing that O’Bryant wrote the letter before he was ever
arrested or charged with the offenses in this case. Nonetheless, because the prosecutor
pointed to the date that O’Bryant had placed on the letter, she was arguing facts that were
in evidence. Granted, even though the deputy prosecutor’s argument may have been
slightly misleading because she stated that O’Bryant had denied the molestations before
he was accused of committing the acts, the fact remains that it was O’Bryant’s letter.
Moreover, the deputy prosecutor’s remarks concerned only a brief reference to the letter
that constituted only a minor part of her closing argument. In fact, it was B.C.’s
testimony that formed the essence of the State’s case, along with the testimony from his
mother and aunt. The trial court also instructed the jury that counsel’s arguments are not
evidence.
14 As a result, even if the deputy prosecutor’s comments were improper, O’Bryant
has failed to show that such conduct amounted to fundamental error. See Suding v. State,
945 N.E.2d 731, 737 (Ind. Ct. App. 2011) (holding that in light of the evidence of the
defendant’s guilt, the prosecutor’s fleeting comment about the defendant’s criminal past
did not constitute fundamental error). For all of these reasons, we conclude that
O’Bryant has failed to demonstrate fundamental error that resulted from the deputy
prosecutor’s brief argument regarding the letter.
B. Tattoos
In this case, O’Bryant admitted that his tattoos were relevant, at least for
identification purposes. It is only improper for a prosecutor to comment on evidence that
is not in the record. See Malloch v. State, 980 N.E.2d 887, 909 (Ind. Ct. App. 2012)
(observing that a prosecutor must generally confine closing argument to comments based
on the evidence presented at trial), trans. denied.
Here, it is apparent that the deputy prosecutor was attempting to convey a
reasonable inference from the evidence that O’Bryant’s tattoos would project to a young
child the belief that O’Bryant was a rough and scary individual. Thus, the deputy
prosecutor’s comments about the tattoos assisted in explaining why B.C. was frightened
of O’Bryant, particularly in light of O’Bryant’s threats that he would make B.C.
disappear “from the earth” if he ever told anyone about the molestations. Tr. p. 57, 59.
Moreover, the fact that B.C. was frightened of O’Bryant explained why B.C. delayed
reporting the molestations to various family members and others. Hence, we cannot say
15 that the deputy prosecutor’s comments regarding O’Bryant’s tattoos were improper.
Thus, O’Bryant’s fundamental error claim fails.
V. Exclusion of Evidence Regarding Prior Inconsistent Statement
Finally, O’Bryant argues that the trial court erred in preventing him from
admitting part of Back’s deposition testimony into evidence. O’Bryant argues that he
was attempting to establish that Back made inconsistent statements in her deposition that
conflicted with her trial testimony and that B.C.’s admission that he had been molested
when he was “three or four” was “necessary for an effective cross examination.”
Appellant’s Br. p. 26. Thus, O’Bryant contends that the evidence should also have been
admitted for impeachment purposes.
We initially observe that the admission or exclusion of evidence rests within the
sound discretion of the trial court, and is reviewed for an abuse of discretion. Conley v.
State, 972 N.E.2d 864, 871 (Ind. 2012). An abuse of discretion occurs when the trial
court’s decision is clearly against the logic and effect of the facts and circumstances
before it. Id. The trial court’s evidentiary rulings will be sustained on appeal on any
legal basis apparent in the record, even though they may not be the grounds that the trial
court enunciated. Jester v. State, 724 N.E.2d 235, 240 (Ind. 2000). Finally, errors in the
admission or exclusion of evidence are generally to be disregarded as harmless unless
they affect the substantial rights of a party. Gray v. State, 982 N.E.2d 434, 437 (Ind. Ct.
App. 2013).
16 In this case, O’Bryant argues that the trial court’s exclusion of Back’s deposition
testimony prohibited him from exercising his constitutional right of cross-examination
and denied him the ability to show that her testimony was not reliable and that she had
“coached” B.C.’s testimony. Appellant’s Br. p. 25-28.
Notwithstanding these claims, the portion of Back’s deposition that O’Bryant
sought for the trial court to admit did not establish a prior statement that was inconsistent
with Back’s testimony. More particularly, O’Bryant points out that Back testified at trial
in response to defense counsel’s questions that when B.C. initially told her about
O’Bryant’s actions, she told B.C. that he had been “molested.” Tr. p. 206-07. However,
the record shows that Back did not use that term. Rather, it was B.C. who actually stated
that he had been “molested.” Moreover, the portion of Back’s deposition that O’Bryant
sought to have admitted into evidence did not contain the term “molested.” Appellant’s
App. p. 45-46.
During the deposition testimony, Back stated, “And I said, other than what
happened to you when you were three or four, I said, has anybody else ever did that to
you again?” Appellant’s App. p. 45-46. Because O’Bryant failed to show that Back used
the term “molested” when she was questioned, O’Bryant has not established that there
was any discrepancy between Back’s testimony at trial and her deposition testimony. As
a result, the trial court did not abuse its discretion in prohibiting O’Bryant from using the
deposition testimony for impeachment as a prior inconsistent statement.
17 CONCLUSION
In light of our discussion above, we conclude that O’Bryant failed to establish that
he was unfairly prejudiced when the trial court allowed B.C. to testify via closed circuit
television, that O’Bryant has waived the issues regarding the trial court’s final
instructions that were read to the jury, the alleged defective charging information in
Count III regarding the commission of sexual deviate conduct, and the claim of
prosecutorial misconduct. Moreover, none of these contentions constituted fundamental
error. Finally, we conclude that the trial court did not err in excluding Back’s deposition
testimony because there was no inconsistency with regard to that testimony and her
testimony at trial. The judgment of the trial court is affirmed.
FRIEDLANDER, J., and VAIDIK, J., concur.