MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                     FILED
court except for the purpose of establishing                    Dec 19 2017, 9:50 am

the defense of res judicata, collateral                              CLERK
                                                                 Indiana Supreme Court
estoppel, or the law of the case.                                   Court of Appeals
                                                                      and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark K. Phillips                                        Curtis T. Hill, Jr.
Boonville, Indiana                                      Attorney General of Indiana
                                                        Katherine Cooper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Edward John Meiggs,                                     December 19, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        82A01-1706-CR-1261
        v.                                              Appeal from the Vanderburgh
                                                        Superior Court
State of Indiana,                                       The Honorable Robert J. Pigman,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        82D03-1505-F3-2607



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1261 | December 19, 2017   Page 1 of 10
[1]   Edward Meiggs appeals his conviction for Level 3 Felony Rape. 1 He argues

      that the trial court erred by excluding certain evidence, providing a

      supplemental jury instruction, and failing to provide a sufficient sentencing

      statement.2 He also contends that we should reverse based on prosecutorial

      misconduct. Finding no error or prosecutorial misconduct, we affirm.


                                                         Facts
[2]   On May 6, 2015, A.W. went to Evansville Metaphysics for an hour-long

      massage. Shortly after she arrived, Meiggs emerged and directed A.W. to a

      small room where the massage would take place. In preparation for the

      massage, A.W. removed all of her clothes except for her underwear.


[3]   At the end of the hour, Meiggs asked A.W. if she wanted him to continue

      because his next client would not arrive for thirty minutes. She agreed, and he

      began massaging her lower legs. Meiggs touched her vulva over her underwear,

      then pulled her underwear to the side and inserted his fingers into her vagina.

      A.W. said “no” and tightened her legs, pushing them together. Tr. Vol. I p. 50.

      He ignored her, presumably pulled apart her tightened legs, and continued with

      the assault. He again inserted his fingers into her vagina, and she again said no.

      Still ignoring her, he placed his tongue on her anus and then inserted his tongue

      into her vagina. At that point, “she was afraid to resist anymore.” Id. at 43.


      1
          Ind. Code § 35-42-4-1(a)(1).
      2
        Meiggs also argues that the jury’s verdicts were inconsistent. But our Supreme Court has clearly stated that
      claims of inconsistent verdicts are not reviewable on appeal. Beattie v. State, 924 N.E.2d 643, 649 (Ind. 2010).
      Therefore, we will not address this argument.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1261 | December 19, 2017           Page 2 of 10
      A.W. did not fight back “[b]ecause [her] face was down the whole time; [she]

      didn’t know if he had a weapon; . . . [she] knew that [she] couldn’t win; [she]

      knew that there was nothing [she] could do.” Id. at 59. This behavior

      continued for ten to fifteen minutes; afterwards, Meiggs whispered in A.W.’s

      ear “that was nice thank you,” and A.W. left the office. Id. at 60.


[4]   A.W. was “shocked” and “shaken” after the incident and went to a friend’s

      home. Id. at 94. A.W. told her friend what had happened and called the

      police. The responding officer took A.W. to a local hospital for a rape kit

      examination. The Sexual Assault Nurse Examiner collected internal and

      external genital swabs and collected A.W.’s clothing and underwear. The

      external genital swab contained male DNA; Meiggs could not be excluded as a

      contributor to that sample. Tr. Vol. II p. 5. Testing was later performed on

      A.W.’s clothing; Meiggs’s DNA was not on the clothing but other unknown

      male DNA was.


[5]   On May 8, 2015, the State charged Meiggs with three counts of Level 3 felony

      rape. Meiggs’s jury trial began on April 17, 2017. At trial, counsel for Meiggs

      acknowledged that Meiggs had given A.W. a massage but denied that Meiggs

      had in any way touched her beneath her underwear, emphasizing to the jury the

      lack of Meiggs’s DNA on A.W.’s clothing and internal genital swabs.


[6]   During the trial, the State intended to introduce into evidence the certificate of

      lab analysis regarding the DNA testing on A.W.’s clothing, but sought to redact

      all information regarding the unknown male DNA. The trial court excluded


      Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1261 | December 19, 2017   Page 3 of 10
      the certificate of lab analysis from evidence altogether but permitted the lab

      analyst to testify that Meiggs’s DNA was not found on A.W.’s clothing.

      Meiggs wanted to cross-examine the analyst about the unknown male DNA

      found on the clothing, but the trial court prohibited that line of questioning,

      finding it irrelevant.


[7]   During closing argument, Meiggs objected to statements made by the

      prosecutor, arguing that the prosecutor had misstated the testimony of certain

      witnesses. The trial court overruled the objection and permitted closing

      arguments to proceed.


[8]   After the jury began deliberating, the jury sent the following question to the trial

      court: “Does saliva on [A.W.’s] vagina indicate that there was penetration of

      [A.W.’s] vagina with his tongue?” Tr. Vol. II p. 54. The trial court responded

      with a note to the jurors asking whether the legal definition of penetration—

      which had been omitted from the final jury instructions—would assist them.

      The jury said that it would, and also sent the trial court a second question:

      “Are the charges solely based on ‘penetration’ or the entire definition of [Jury]

      Instruction #7[?]” Tr. Ex. p. 16.


[9]   Over Meiggs’s objection, the trial court provided the jury with this definition of

      penetration: “The slightest penetration of the sex organ, external genitalia, or

      vulva may be sufficient to support” a conviction. Id. at 17. Also over Meiggs’s

      objection, the trial court declined to answer the second question, concluding




      Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1261 | December 19, 2017   Page 4 of 10
       that “they’re confused about what penetration was” and that the definition of

       penetration would suffice. Tr. Vol. II p. 62.


[10]   Ultimately, the jury found Meiggs guilty of one count of rape and not guilty of

       the other two counts of rape. On May 10, 2017, the trial court sentenced

       Meiggs to a nine-year term of imprisonment. Meiggs now appeals.


                                      Discussion and Decision                         3




                                      I. Exclusion of Evidence
[11]   Meiggs first argues that the trial court erroneously excluded evidence—

       including the certificate of lab analysis and testimony of the expert witnesses—

       related to the unknown male DNA found on A.W.’s clothing. The admission

       and exclusion of evidence falls within the trial court’s sound discretion, and we

       will reverse only if the decision is clearly against the logic and effect of the facts

       and circumstances before it. Johnson v. State, 6 N.E.3d 491, 498 (Ind. Ct. App.

       2014).


[12]   While Meiggs highlights the Rape Shield Rule in his briefs, it is apparent that

       the trial court did not exclude this evidence on that basis. Instead, the trial

       court excluded this evidence because it was irrelevant. Tr. p. 127. Indiana

       Evidence Rule 401 provides that evidence is relevant if it (1) has any tendency




       3
         Meiggs does not argue that there is insufficient evidence supporting the “force or imminent threat of force”
       element of rape, I.C. § 35-42-4-1(a)(1), presumably because his defense at trial was that he did not commit the
       act at all.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1261 | December 19, 2017          Page 5 of 10
       to make a fact more or less probable than it would be without the evidence; and

       (2) the fact is of consequence in determining the action.


[13]   Here, the jury heard evidence that Meiggs’s DNA was not found on the internal

       genital swabs or A.W.’s clothing. Indeed, Meiggs’s counsel repeatedly

       emphasized this evidence throughout the trial, as it supported Meiggs’s defense

       that, while he had given A.W. a massage, he had not touched her beneath her

       underwear. Whether there was unknown male DNA on A.W.’s clothing is

       wholly irrelevant to the fact that Meiggs’s was not. This unknown DNA did

       not make it any more or less probable that Meiggs had committed the acts with

       which he was charged and was not of consequence in determining the action.4

       Consequently, the trial court did not err by finding that this evidence was

       irrelevant and inadmissible.


                                  II. Prosecutorial Misconduct
[14]   Next, Meiggs argues that his conviction should be reversed based on

       prosecutorial misconduct. Our Supreme Court has explained that “[w]e review

       a prosecutorial misconduct claim using a two-step analysis. First, there must be

       misconduct; and second, the misconduct must have placed the defendant in a

       position of grave peril.” State v. Taylor, 49 N.E.3d 1019, 1029 (Ind. 2016). A

       prosecutor must confine closing argument to comments based upon the

       evidence in the record, though he may argue both law and facts and propound


       4
        Meiggs spends much time arguing about his constitutional right to confront and cross-examine witnesses.
       He has no constitutional right, however, to cross-examine witnesses about matters that are irrelevant to his
       guilt or innocence.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1261 | December 19, 2017          Page 6 of 10
       conclusions based upon his analysis of the evidence. Lambert v. State, 743

       N.E.2d 719, 734 (Ind. 2001).


[15]   Here, Meiggs argues that the prosecutor committed misconduct by misstating

       the evidence in the record in the following portions of closing argument:


               State:           . . . If you look back at the DNA evidence the
                                analyst said some of these results were inconclusive,
                                a determination couldn’t be made, and some were
                                conclusive. Where they found none of his DNA on
                                some of those items, but it’s important to go back on
                                the external genital swabs. . . . Nicole Hoffman, the
                                first DNA technician, when she talked about the
                                genital swab on the external area she said that
                                amylase was detected.


               Defense:         Judge I’m going to object . . . .


                                                       ***


               Court:           . . . The jury will decide whether that was testified
                                to or not. Okay, go on.


               State:           Amylase is a component of saliva. Mr. Phillips said
                                a lot of things that I didn’t hear an explanation of
                                how his DNA while giving a massage while never
                                having touched her in any . . . inappropriate
                                manner. Some of you have gone to massages, some
                                of you have gotten them, it doesn’t happen rubbing
                                the quads. It doesn’t happen rubbing the butt of
                                which would be inappropriate anyway. How does
                                that DNA get on there? How does [it] end up on
                                her external genitalia? How does saliva end up
                                there? How does amylase end up getting detected?
       Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1261 | December 19, 2017   Page 7 of 10
                                And so, we can imagine, and we can conjure . . . or
                                we can look at the simple explanation that was
                                made from the beginning. . . .


       Tr. Vol. II p. 47-48. Meiggs argues that the prosecutor’s statements regarding

       the presence of amylase on the external swab and the implication that Meiggs’s

       saliva was on her external genitalia did not accurately reflect the evidence in the

       record.


[16]   The record reveals that Nicole Hoffman testified that “amylase was detected”

       on the external genital swabs and that amylase is a component of saliva. Tr.

       Vol. I p. 233. She explained that male DNA was found on these swabs but that

       the technology offered in her lab was not sophisticated enough to do further

       analysis on that DNA; consequently, those samples were sent to a laboratory in

       Indianapolis. Nicole Keeling, who works for the laboratory in Indianapolis,

       then testified that she tested the external genital swabs and concluded that

       Meiggs could not be excluded as a contributor to that DNA sample. Id. at 5.


[17]   Therefore, the record supports the prosecutor’s statement that amylase was

       found in the external genital swabs. While the prosecutor could have been

       more accurate than to state that Meiggs’s DNA was definitively present in the

       external genital swabs, the expert testified that Meiggs cannot be excluded as a

       contributor. The prosecutor was within his purview to point out that there was

       amylase on the external genital swabs, that amylase is a component of saliva,

       and that Meiggs cannot be excluded as a DNA contributor; and then to

       question how Meiggs’s saliva ended up on A.W.’s external genitalia if it was

       Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1261 | December 19, 2017   Page 8 of 10
       truly a normal massage. In our view, this amounts to permissible propounding

       of conclusions based on the evidence. In other words, we find no prosecutorial

       misconduct.


                                       III. Jury Instructions
[18]   Next, Meiggs argues that the trial court erred by providing a new instruction to

       the jury defining the term “penetration” rather than rereading all of the

       instructions to the jurors. He does not argue that the instruction regarding

       penetration was an incorrect statement of the law, instead contending that the

       procedure employed by the trial court was problematic.


[19]   The generally accepted procedure in answering a jury’s question on a matter of

       law is to reread all instructions to avoid emphasizing any particular point and

       not to qualify, modify, or explain the instructions in any way. Riley v. State, 717

       N.E.2d 489, 493 (Ind. 1999). Our Supreme Court has created an explicit

       exception to this general practice, however, when a trial court is faced with an

       omitted and necessary instruction. Martin v. State, 760 N.E.2d 597, 601 (Ind.

       2002). In other words, when the jury question relates to a gap in the final jury

       instructions, “‘a response other than rereading from the body of final

       instructions is permissible.’” Id. (quoting Jenkins v. State, 424 N.E.2d 1002,

       1003 (Ind. 1981)).


[20]   Here, the trial court was faced with precisely such a gap. The final jury

       instructions did not define the term “penetration,” which is a key term that the

       jurors were required to consider. The trial court acted within its discretion to

       Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1261 | December 19, 2017   Page 9 of 10
       fill this gap by providing an instruction defining the term and to decline to

       answer the other question posed by the jury. In accordance with Martin and

       Jenkins, the trial court was not required to reread all instructions and did not err

       by declining to do so.


                                            IV. Sentencing
[21]   Finally, Meiggs argues that the trial court erred by finding aggravating and

       mitigating circumstances but failing to identify them. We disagree, as the trial

       court plainly described all aggravators and mitigators at the sentencing hearing:


               The Court . . . now sentences the defendant to the Indiana
               Department of Correction[] for a period of nine years . . . which
               is the advisory or standard sentence for a Level 3 felony, and
               orders that sentence executed. There are mitigating
               circumstances, some of which have been mentioned here; his
               lack of a prior record and his service in the military. The Court
               finds the nature and circumstances of the . . . offense . . . is also
               an aggravating circumstance that offsets those. So the Court
               determines the standard sentence is appropriate.


       Tr. Vol. II p. 80. As the trial court did, in fact, identify the mitigators and

       aggravators, we find no error in this regard.


[22]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1706-CR-1261 | December 19, 2017   Page 10 of 10
