                                                                              Aug 28 2013, 5:51 am
Pursuant to Ind. Appellate Rule 65(D),
this 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:

VICTORIA L. BAILEY                                  GREGORY F. ZOELLER
Marion County Public Defender Agency                Attorney General of Indiana
Indianapolis, Indiana
                                                    ANDREW R. FALK
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

MICHAEL PACE,                                       )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A04-1302-CR-77
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Mark D. Stoner, Judge
                            Cause No. 49G06-1112-FA-89450



                                         August 28, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Michael Pace (“Pace”) appeals, following a jury trial, his convictions for two

counts of child molesting,1 each as a Class B felony, raising the following restated issue:

whether the trial court abused its discretion by excluding evidence that Pace contends

reveals the complaining witness had ulterior motives for making the criminal allegations.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY2

       On November 14, 2011, Pace, who was nineteen years old at the time, moved into

the home of his uncle, M.B. M.B. shared a home in Indianapolis with his girlfriend, S.H.,

S.H.’s daughter, and S.H.’s eight-year-old son, D.H. Initially, Pace slept on the couch;

however, after about a week, the family set up a cot for Pace in D.H.’s bedroom.

       Pace usually arrived home from work around 2:45 a.m. Every weeknight for

about a month, Pace would enter the bedroom, wake D.H., and force him to perform oral

sex on Pace. Pace told D.H. not to tell anyone. The night of December 21, 2011, after

Pace had forced D.H. to perform oral sex, Pace made D.H. get Pace’s gun, which was in

a case on top of a filing cabinet in the bedroom. Pace unzipped the case, removed the

gun from its holster, and pointed the gun at D.H. Pace then put the gun back in the

holster.


       1
           See Ind. Code § 35-42-4-3.
       2
          The record on appeal in this case was prepared pursuant to the Indiana Supreme Court’s “Order
Establishing the Indiana Court Reporting Pilot Project for Exploring the Use of an Audio/Visual Record
on Appeal[,]” issued on September 18, 2012, and effective on July 1, 2012. See In Re Pilot Project for
Audio/Visual Recordings In Lieu of Paper Transcripts in the Preparation of the Record and Briefing on
Appeal, 976 N.E.2d 1218 (Ind. 2012). We are grateful for the ongoing cooperation of the Honorable
Mark D. Stoner of Marion Superior Court, the Marion County Public Defender Agency, and the Office of
the Indiana Attorney General in the execution of this pilot project.


                                                  2
       The next day, D.H. reported the abuse to a counselor at school. The school, in

turn, called the police. After an investigation into the matter, Pace was arrested and

charged with five counts of child molesting, four as Class B felonies and one as a Class A

felony for the reason that Pace committed the crime “by using or threatening the use of

deadly force.” Appellant’s App. at 51.

       During a deposition prior to trial, Pace asked D.H. whether he had ever been

accused of running away from home.3              D.H. responded, “No.”          (A/V Rec. No. 1;

01/07/13; 14:59:07). Pace later asked D.H. if he had been in trouble at school, and D.H.

admitted that he had. When Pace asked D.H. additional questions, D.H. said that he did

not want to talk about it. Pace did not ask D.H. any more questions about problems at

school.

       Prior to trial, Pace filed with the court an exhibit list that included two exhibits:

Exhibit A, an incident report from D.H.’s school showing that D.H. had been suspended

from school from October 26, 2011 through November 10, 2011 because he brought a

knife to school; and Exhibit B, records from the Indianapolis Metropolitan Police

Department showing that D.H. had run away from home on September 18, 2011,

September 25, 2011, and October 27, 2011. All of the incidents referenced in the two

exhibits occurred before Pace moved into D.H.’s home.

       The State filed two motions in limine. Each motion requested that “defendant, his

counsel, and any other witnesses be instructed not to mention or in any way refer to”


       3
          D.H.’s deposition is not in the record before us; therefore, we rely on the way in which the
parties characterized D.H.’s deposition at trial.

                                                  3
certain matters until a hearing could be held outside the presence of the jury “to

determine the relevancy [of such matters] to the issues formulated by the information(s)

and the not-guilty plea.” Appellant’s App. at 135, 152. The State’s first motion, in

pertinent part, sought to exclude evidence of D.H. being a runaway. Pace objected to the

exclusion of this evidence on the basis that D.H.’s deposition testimony on this subject

called into question D.H.’s credibility. The trial court questioned whether this was a

collateral matter, and after hearing arguments from the parties, granted the State’s motion

in limine over defendant’s objection.     In its second motion in limine, the State, in

pertinent part, sought to exclude evidence of D.H.’s school suspension because it was

imposed “outside of the period during which the molest [sic] occurred.” Id. at 135, 152.

Pace again argued against the exclusion of this evidence, contending that it was necessary

to attack D.H.’s credibility.   The trial court took the State’s second motion under

advisement. Appellant’s App. at 16, 17.

       Pace’s two-day jury trial began on January 7, 2013. Following the State’s direct

examination of D.H., Pace asked for a bench conference. The trial court then excused the

jury to address matters previously raised in the State’s motions in limine, i.e., whether to

allow evidence that D.H. had been suspended from school and had run away from home.

In this hearing, the trial court repeatedly asked Pace how evidence of these matters made

D.H. more or less credible. Pace stated that he had asked D.H. about these two matters

during deposition and that D.H. had employed “outright deception” on the question of

whether he had been accused of running away and had refused to talk about the school

suspension. (A/V Rec. No. 1; 01/07/13; 14:53:09—56:29). The State disagreed and

                                             4
supported its point by briefly reading and summarizing some of D.H.’s deposition

testimony.

      As follow-up, the trial court, questioning how this evidence was relevant to the

issue of D.H.’s credibility, asked Pace if D.H. had lied during the deposition. Pace

referred to page ten of D.H.’s deposition and noted that, when D.H. was asked, “Did

anybody accuse you of trying to run away from home,” D.H. had responded, “No.” (A/V

Rec. No. 1; 01/07/13; 14:58:38-15:00:33). Clarification was offered by the State that

Pace had not asked D.H. whether he had actually run away; instead, D.H. was asked if he

had been accused of running away. It was the State’s position that D.H. had truthfully

answered the question. (A/V Rec. No. 1; 01/07/13; 14:55:53-15:01:35).

      Regarding the school suspension evidence, the State noted that D.H. had not lied

during questioning, but instead had admitted that he had gotten into trouble at school but

did not want to talk about it. The trial court asked Pace how he wanted to cross-examine

D.H. in light of the fact that D.H. had admitted that he had been suspended from school.

Pace responded that D.H.’s answer goes to the issue of the jury weighing D.H.’s

credibility. The court disagreed, finding that Pace’s argument was not one of credibility,

but instead a 404(b) argument, i.e., “[D.H.] did this; therefore you shouldn’t believe him

about something else.” (A/V Rec. No. 1; 01/07/13; 15:06:09). Pace conceded that D.H.

was not lying when he talked about the school suspension; nevertheless, when the trial

court concluded that the evidence regarding the school suspension did not go to

credibility, Pace again asserted his belief that “it goes to the child’s propensity for

truthfulness.” (A/V Rec. No. 1; 01/07/13; 15:08:43-10:10).

                                            5
       After hearing the parties’ arguments, the trial court ruled to exclude Exhibits A

and B and evidence related thereto. Notwithstanding these rulings, the trial court advised

Pace that he could explore the question of whether D.H. had ever told a lie and what

happened if he did. (A/V Rec. No. 1; 01/07/13; 15:13:09). Pace did exactly that, and

during cross-examination asked D.H. if he had ever been caught in a lie. D.H. admitted

that he had, and when asked how his parents dealt with D.H. if he lied, D.H. testified that

his mother would ground him and his father would swat him with a belt. Pace then took

the stand in his own defense.

       The jury found Pace guilty of a Class B felony under Count V and a Class B

felony, as a lesser included offense under Count I, but hung on the remaining three

counts. At the sentencing hearing, the State agreed to dismiss Counts II, III, and IV, and

the trial court imposed an aggregate sentence of ten years, of which three years were

suspended to probation. Pace now appeals. Additional facts will be added as necessary.

                            DISCUSSION AND DECISION

       Pace contends that the trial court abused its discretion when it excluded evidence

relating to his proposed Exhibits A and B. Specifically, Pace contends that this evidence

would have revealed D.H.’s ulterior motives in charging Pace with these crimes because

it would have “‘tend[ed] . . . to show [D.H.’s] interest, bias, or motives.’” Appellant’s Br.

at 8 (quoting Shanholt v. State, 448 N.E.2d 308, 316 (Ind. Ct. App. 1983)).

       The decision to admit or exclude evidence is within the trial court’s sound

discretion and is afforded great deference on appeal. Fugett v. State, 812 N.E.2d 846,

848 (Ind. Ct. App. 2004). “We will generally not reverse a trial court’s exclusion of

                                             6
evidence except when the exclusion is a manifest abuse of discretion resulting in a denial

of a fair trial.” Id. “An abuse of discretion occurs where the trial court’s decision is

clearly against the logic and effect of the facts and circumstances before the court.” Id.

This court will also find an abuse of discretion when the trial court controls the scope of

cross-examination to the extent that a restriction substantially affects the defendant’s

rights. Id.

        During trial, the trial court ruled to exclude Exhibit A and related evidence

showing that D.H. had been suspended from school, finding that the incident was barred

by Indiana Rule of Evidence 404(b),4 and that even if it were not, the prejudicial value of

the evidence outweighed its probative value. (A/V Rec. No. 1; 01/07/13; 15:07:19). The

trial court, likewise, ruled to exclude Exhibit B and the evidence regarding D.H. having

been a runaway, finding that Exhibit B “addressed a collateral issue and was not

admissible under Indiana Rule of Evidence 609 because ‘being a runaway is not a 609

offense . . . .’”5 (A/V Rec. No. 1; 01/07/13; 15:11:51). Pace does not address these

issues; instead, he contends that the trial court abused its discretion in excluding Exhibits

A and B because the evidence of D.H.’s school suspension and his having been a

runaway “would have suggested” or tended to show an ulterior motive for D.H. to allege

that he was molested by Pace. Appellant’s Br. at 12.


        4
         Evidence Rule 404(b) provides in pertinent part, “Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show action in conformity therewith.”
        5
         Evidence Rule 609(a) provides in pertinent part: “For the purpose of attacking the credibility of
a witness, evidence that the witness has been convicted of a crime or an attempt of a crime shall be
admitted but only if the crime committed or attempted is . . . a crime involving dishonesty or false
statement.”

                                                    7
        The State contends that Pace has waived this issue on appeal. At trial, Pace

argued that Exhibits A and B were relevant to attack D.H.’s credibility. Pace did not

claim that the desired evidence, used on cross-examination, was intended to show bias,

prejudice or an ulterior motive on the part of D.H.6 Our Supreme Court has said that

“[g]rounds for the admission of evidence which are urged on appeal must be the same as

those presented at trial.” Fox v. State, 506 N.E.2d 1090, 1093 (Ind. 1987). Recognizing

that he may have waived this issue on appeal, Pace contends that the exclusion of this

evidence constituted fundamental error because it denied him his Sixth Amendment right

to effectively cross-exam D.H. as to his ulterior motive for accusing Pace. Assuming

without deciding that Pace has preserved the issue of ulterior motive on appeal, we

conclude for the following reasons that the trial court did not abuse its discretion when it

excluded evidence regarding D.H.’s school suspension and his having run away from

home.

        Pace correctly notes that evidence of a witness’s bias, prejudice or ulterior motives

is relevant at trial. Appellant’s Br. at 8 (citing Shanholt, 448 N.E.2d at 316). “Indiana

Evidence Rule 616 explicitly makes ‘evidence of bias, prejudice, or interest of the


        6
           Pace asserts that he did not waive the ulterior motive issue on appeal and contends that the
State’s assertion of waiver “is based on an apparent misapprehension of the nature of Pace’s argument.”
Appellant’s Reply Br. at 1. Pace offers that “the entirety of [his] argument on appeal is a challenge to the
trial court’s decision to exclude evidence.” Id. Accordingly, he maintains that the inquiry as to waiver
should focus on whether he made an offer to prove, which Pace claims he did. “The purpose of an offer
to prove is to enable the trial court and this court to determine the admissibility and relevance of the
proffered evidence.” Carter v. State, 932 N.E.2d 1284, 1287 (Ind. Ct. App. 2010). Here, there was no
need to make an offer to prove; it was clear what evidence Pace intended to admit. Therefore, the
question of waiver does not, as Pace contends, turn on Pace’s failure to make an offer of proof, but
instead, on whether the “[g]rounds for the admission of evidence” that Pace argues on appeal are the same
as those presented at trial. Fox v. State, 506 N.E.2d 1090, 1093 (Ind. 1987).


                                                     8
witness for or against any party’ relevant and admissible for impeachment purposes, as

this evidence can impact the weight of the witness’s testimony.” Konopasek v. State, 946

N.E.2d 23, 27-28 (Ind. 2011). “Not only is such evidence merely allowed by Indiana

law, it has been held that a party has a right to cross-examine an opposing party’s witness

on matters which tend to impair that witness’s credibility or to show her interest, bias, or

motives.’” Appellee’s Br. at 8 (quoting Shanholt, 448 N.E.2d at 316). That being said,

Pace has failed to show at trial or on appeal how the excluded evidence is even relevant

to whether or not D.H. had any reason to falsely accuse Pace of these crimes.

       Pace cites various cases to illustrate instances where a victim may have had an

ulterior motive for accusing a defendant of criminal conduct. In Zawacki v. State, the

defendant sought to admit evidence that the alleged victim in a sexual misconduct case

had asked defendant’s permission to engage in a relationship with defendant’s daughter

and that the defendant refused that request. 753 N.E.2d 100, 103 (Ind. Ct. App. 2001),

trans. denied. In Marshall v. State, the defendant sought to introduce evidence to support

his theory that the alleged victim fabricated her story of child molestation because she

was angry with the defendant for failing to complete a drug deal involving victim’s

husband that allegedly would have earned them thousands of dollars. 893 N.E.2d 1170,

1177 (Ind. Ct. App. 2008). Finally, in Kirk v. State, the defendant sought to introduce

evidence that the victim of sexual assault falsely accused Kirk because he had refused to

impersonate the victim’s father in order to allow the victim to regain admittance to school

after a suspension. 797 N.E.2d 837, 840 (Ind. Ct. App. 2003), trans. denied. The instant

case contains no such similar facts. D.H.’s suspension and history as a runaway all

                                             9
occurred before Pace moved into D.H.’s home; additionally, there is no evidence that

Pace had any knowledge of or connection with these events at any time. Pace has shown

us no reason why, in light of these events, D.H. would have had an incentive to falsely

accuse Pace of child molesting.

       We find Pace’s argument regarding ulterior motive more closely resembles a

request that we address whether the excluded evidence was properly excluded under

Indiana Evidence Rule 404(b). On appeal, Pace maintains that the trial court abused its

discretion in precluding the admission of Exhibits A and B because those exhibits “show

an escalating pattern of problematic behavior from [D.H.].”           Appellant’s Br. at 11.

Indiana Evidence Rule 404(b) provides in relevant part:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. . . .

The trial court did not abuse its discretion by refusing to let Pace introduce evidence of

D.H.’s suspension or his having been a runaway to show that D.H. was a troubled child

who had acted badly before. The only possible reason for introducing this evidence was

to suggest to the jury that, in light of D.H.’s prior bad acts, the jury could not trust D.H.’s

current testimony regarding his accusations about Pace. The excluded evidence was

correctly characterized by the trial court as Rule 404(b) evidence, and the trial court

properly excluded it.

       Notwithstanding the exclusion of Exhibits A and B, Pace was able to effectively

cross-examine D.H. regarding his credibility. After ruling that Exhibits A and B would

be excluded, the trial court advised Pace that he could explore the question of whether


                                              10
D.H. had ever told a lie and what happened if he did. (A/V Rec. No. 1; 01/07/13;

15:13:09). Pace did exactly that and, during cross-examination, asked D.H. if he had

ever been caught in a lie. D.H. admitted that he had, and when asked how his parents

dealt with D.H. if he lied, D.H. testified that his mother would ground him and his father

would swat him with a belt. In this way, Pace was able to effectively cross-examine D.H.

      Finding that the trial court did not abuse its discretion in excluding evidence that

D.H. had been suspended and had run away, we affirm Pace’s convictions.

      Affirmed.

MAY, J., and BRADFORD, J., concur.




                                           11
