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                       Aug 08 2017, 7:49 am

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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kevin Wild                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

David Lee,                                               August 8, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1610-CR-2414
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt Eisgruber,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G01-1601-F4-2819



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2414 | August 8, 2017       Page 1 of 12
[1]   Following a jury trial, David Lee was convicted of child molesting as a Class C

      felony. Lee now appeals, presenting two issues for our review:


              1. Did the trial court abuse its discretion in excluding a defense
              witness?


              2. Did statements made by the State during closing argument
              constitute prosecutorial misconduct rising to the level of
              fundamental error?


[2]   We affirm.


                                       Facts & Procedural History


[3]   I.L. was born in 2003. When she was about four or five years old, Lee, her

      grandfather, began molesting her, and he continued to do so until she was eight

      or nine years old. When I.L. would stay overnight at Lee’s apartment, Lee

      would direct I.L. to join him on the couch. Lee would lie on his side and

      would have I.L. lie on her side in front of him, with her back to his stomach.

      During these incidents, I.L. was clothed and Lee was wearing boxers or shorts

      and would cover himself with a blanket. Lee would position his body so that

      his penis was against I.L.’s buttocks and he would “hump” her. Transcript Vol.

      2 at 56. Lee’s penis would get “hard” when this was occurring. Id. at 57. Lee

      also kissed I.L. and put his tongue in her mouth.


[4]   In October 2015, I.L.’s mother caught I.L. sending sexual text messages to a

      boy. When I.L.’s mother confronted I.L. about the text messages, I.L. said she

      was sorry, fell down, and “started balling [sic],” a reaction I.L.’s mother found

      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2414 | August 8, 2017   Page 2 of 12
      to be unusual for I.L. Id. at 79. I.L. then told her mother about the incidents

      with Lee when she was younger. I.L.’s mother contacted the police and

      reported I.L.’s allegations against Lee.


[5]   On January 26, 2016, the State charged Lee with four counts of Class C felony

      child molesting and two counts of Level 4 felony child molesting. Prior to trial,

      the State moved to dismiss all but one of the Class C felony charges. A jury

      trial was scheduled for September 19, 2016. Prior to the start of the trial, the

      trial court granted the State’s motion to dismiss and permitted the State to

      modify the language of the remaining charge.


[6]   At trial, after the State finished its presentation of evidence, Lee sought to call

      his daughter, Rachel, to testify in his defense. Rachel was not identified on any

      witness list prepared prior to trial and was present in the courtroom throughout

      the State’s presentation of evidence. Counsel for Lee explained that he had

      only just learned of Rachel’s potential testimony, which would have been to the

      effect that Rachel claimed she was present when I.L. made the allegations

      against Lee and that I.L. first made her allegations to her step-father and she

      “never fell down on the ground crying” like I.L.’s mother described. Id. at 101.

      The State objected to Rachel being called as a witness on two grounds—first,

      that Lee had not previously disclosed Rachel as a potential defense witness, and

      second, that Rachel had been in the courtroom during the trial despite an order

      for separation of witnesses. The trial court sustained the State’s objection. Lee

      then took the stand in his own defense and testified as follows:



      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2414 | August 8, 2017   Page 3 of 12
              Q.       [Lee], did you ever have inappropriate contact with IL?


              A.       No, I never.


      Id. at 105.


[7]   During closing argument, the prosecutor argued, without objection, that Lee’s

      testimony was not credible. Specifically, the prosecutor stated:


              He testified. He wasn’t credible. He wasn’t credible. “Did you
              touch your . . . granddaughter inappropriately?” “No.” That’s
              not credible testimony. You’re telling me that you’re testifying in
              your child molest daughter [sic] and that’s all you have to say?
              That is not credible testimony.


      Id. at 121. The jury found Lee guilty as charged. On September 30, 2016, the

      trial court sentenced Lee to six years, with two years suspended to probation.

      Additional facts will be provided as necessary.


                                          Discussion & Decision


                                         1. Exclusion of Witness


[8]   Lee argues that the trial court abused its discretion in excluding Rachel as a

      defense witness for rebuttal purposes. He asserts that credibility of the State’s

      witnesses was central to the case and thus Rachel’s testimony was “very

      significant” because it would have “directly contested the[ir] credibility.”

      Appellant’s Brief at 13.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2414 | August 8, 2017   Page 4 of 12
[9]    We review a trial court’s decision to admit or exclude evidence for an abuse of

       discretion. Franciose v. Jones, 907 N.E.2d 139, 144 (Ind. Ct. App. 2009), trans.

       denied. We will reverse a trial court’s decision to admit or exclude evidence

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

       circumstances before the court or the reasonable, probable, and actual

       deductions to be drawn therefrom. Id. Additionally, “[a] trial court is accorded

       broad discretion in ruling on issues of discovery, and a reviewing court will

       interfere only when a party can show an abuse of that discretion.” Morse v.

       Davis, 965 N.E.2d 148, 160 (Ind. Ct. App. 2012), trans. denied.


[10]   Lee does not dispute that Rachel was an undisclosed witness and that the State

       had already rested its case-in-chief when he indicated his intent to call her to

       testify. Giving due regard to a defendant’s constitutional right to compulsory

       process, there is a strong presumption to allow even late-disclosed witnesses to

       testify. Williams v. State, 714 N.E.2d 644, 651 (Ind. 1999). In such cases, the

       preferred remedy is to grant a continuance to allow the State an opportunity to

       depose the witness and investigate the witness’s story. Cain v. State, 955 N.E.2d

       714, 718 (Ind. 2011). Nevertheless, “while the right to present witnesses is of

       the utmost importance, it is not absolute.” Townsend v. State, 26 N.E.3d 619,

       627 (Ind. Ct. App. 2015), trans. denied. “The accused, as is required by the

       State, must comply with established rules of procedure and evidence designed

       to assure both fairness and reliability in the ascertainment of guilt and

       innocence.” Jacobs v. State, 22 N.E.3d 1286, 1288 (Ind. 2015).




       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2414 | August 8, 2017   Page 5 of 12
[11]   As both parties have identified, our Supreme Court has set forth five factors to

       consider in determining whether to exclude a witness:


               (i) when the parties first knew of the witness; (ii) the importance
               of the witness’s testimony; (iii) the prejudice resulting to the
               opposing party; (iv) the appropriateness of lesser remedies such
               as continuances; and (v) whether the opposing party would be
               unduly surprised and prejudiced by the inclusion of the witness’s
               testimony.


       Vasquez v. State, 868 N.E.2d 473, 476 (Ind. 2007) (citing Williams v. State, 714

       N.E.2d 644, 651 n.5 (Ind. 1999)).


[12]   With regard to the first factor, Lee claims he did not know Rachel was a

       potential witness until after the State presented its case and she approached him

       with her version of events. The fact of the matter is, however, that Rachel is

       Lee’s own daughter, who, after hearing I.L. and I.L.’s mother testify, now

       claims she can provide a different version of the circumstances surrounding

       I.L.’s disclosure of the allegations against Lee. With regard to the importance

       of Rachel’s testimony, we note that while it might have cast doubt as to the

       credibility of I.L.’s mother’s, Rachel’s proposed testimony did not directly

       challenge I.L.’s credibility or her testimony regarding the molestations.


[13]   Turning to the third factor, the State would clearly have been prejudiced in that

       the State was not afforded an opportunity to investigate Rachel’s proposed

       testimony before presenting its evidence. Additionally, Rachel was present




       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2414 | August 8, 2017   Page 6 of 12
       throughout the trial and was privy to the testimony given by I.L. and I.L.’s

       mother before she came forward and indicated she had contrary testimony. 1


[14]   Similarly, with regard to the fourth factor, a continuance would not remedy the

       fact that Rachel had the opportunity to listen to the testimony of the State’s

       witnesses and tailor her testimony accordingly. Even affording the State the

       opportunity to depose Rachel in the middle of trial would not have obviated the

       need for additional investigation. As noted by the State, if Rachel is over

       eighteen years of age, it would have been prudent to determine if she had any

       prior convictions to impeach her credibility. The State also notes that

       additional investigation might have yielded evidence that could have disputed

       Rachel’s claim that she was present when I.L. first made her allegations against

       Lee. Essentially, the State asserts that if it had known of Rachel’s proffered

       testimony prior to trial, such may have changed the manner in which the State

       presented its case. Finally, with regard to the fifth factor, there is no dispute

       that the State was surprised by Lee’s request to have Rachel testify and such

       request came after the State had completed its case-in-chief.


[15]   Considering each of these factors, we conclude that the trial court’s decision to

       exclude Rachel as a defense witness was not an abuse of discretion. See




       1
         The State argues that Rachel’s presence in the courtroom while the State presented its evidence was a
       violation of the separation of witnesses order, the primary purpose of which is “to prevent witnesses from
       gaining knowledge from the testimony of other witnesses and adjusting their testimony accordingly.” See
       Morell v. State, 933 N.E.2d 484, 489 (Ind. Ct. App. 2010). Rachel, however, was never listed as a witness,
       thus the separation of witnesses order did not apply to her.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2414 | August 8, 2017             Page 7 of 12
       McDonald v. State, 511 N.E.2d 1066 (Ind. 1987) (finding no abuse of discretion

       in trial court’s exclusion of witness not listed as a potential witness where

       witness was present in court room).


[16]   Furthermore, even if it was an abuse of discretion to exclude Rachel as a

       defense witness, any such error was harmless. Errors in the exclusion of

       evidence are generally to be disregarded as harmless unless they affect the

       substantial rights of the defendant. Allen v. State, 813 N.E.2d 349, 361 (Ind. Ct.

       App. 2004), trans. denied. “In determining whether an evidentiary ruling

       affected a party’s substantial rights, the court assesses the probable impact of the

       evidence on the trier of fact.” Hyser v. State, 996 N.E.2d 443, 448 (Ind. Ct. App.

       2013).


[17]   As noted above, Rachel’s proposed testimony did not directly challenge I.L.’s

       testimony regarding the molestations, nor did it challenge I.L.’s mother’s

       testimony that I.L. had disclosed Lee’s molestations. Rather, Rachel’s

       testimony could have, at most, challenged I.L’s mother’s testimony regarding

       I.L.’s demeanor at the time she disclosed the molestations. This was a

       collateral matter that would not have undermined I.L.’s testimony regarding the

       molestations. Lee has not established that exclusion of Rachel as a defense

       witness affected his substantial rights.


[18]   Moreover, we note that Lee had the opportunity to challenge I.L.’s credibility

       by focusing on discrepancies between her prior statements and her testimony at

       trial as well as by focusing on the fact I.L. did not make the accusations against


       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2414 | August 8, 2017   Page 8 of 12
       Lee until she was in trouble for sending sexual text messages to a boy. Lee was

       not prejudiced by the trial court’s exclusion of Rachel’s testimony, which would

       have had little, if any, significance to I.L.’s testimony about the molestations.

       Accordingly, even if it was error to exclude Rachel’s testimony, any such error

       would have been harmless.


                                       2. Prosecutorial Misconduct


[19]   Lee argues that the prosecutor committed misconduct during closing argument.

       Lee acknowledges that he did not object to the prosecutor’s statements or

       request an admonishment at trial. To avoid waiver, he argues that the

       prosecutor’s statements constitute fundamental error. See Booher v. State, 773

       N.E.2d 814, 818 (Ind. 2002). “The ‘fundamental error’ exception is extremely

       narrow, and applies only when the error constitutes a blatant violation of basic

       principles, the harm or potential for harm is substantial, and the resulting error

       denies the defendant fundamental due process.” Mathews v. State, 849 N.E.2d

       578, 587 (Ind. 2006). This exception is available only in egregious

       circumstances. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010).


[20]   To establish prosecutorial misconduct, we must “determine (1) whether the

       prosecutor engaged in misconduct, and if so, (2) whether the misconduct, under

       all of the circumstances, placed the defendant in a position of grave peril to

       which he or she would not have been subjected.” Booher, 773 N.E.2d at 817

       (quoting Coleman v. State, 750 N.E.2d 370, 374 (Ind. 2001)). The gravity of peril

       is measured by the probable persuasive effect of the misconduct on the jury’s


       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2414 | August 8, 2017   Page 9 of 12
       decision rather than the degree of impropriety of the conduct. Id. For

       prosecutorial misconduct to constitute fundamental error, it must “make a fair

       trial impossible or constitute clearly blatant violations of basic and elementary

       principles of due process [and] present an undeniable and substantial potential

       for harm.” Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002).


[21]   Lee challenges the prosecutor’s statements during closing insofar as they

       concerned Lee’s testimony. During the trial Lee took the stand and answered a

       single question:

               Q: David, did you ever have inappropriate contact with IL?


               A: No, I never.


       Transcript Vol. II at 105. In closing, the prosecutor commented on Lee’s

       testimony, stating:

               He testified. He wasn’t credible. He wasn’t credible. “Did you
               touch your . . . granddaughter inappropriately?” “No.” That’s
               not credible testimony. You’re telling me that you’re testifying in
               your child molest daughter (sic) and that’s all you have to say?
               That is not credible testimony.


       Id. at 121.


[22]   In arguing that the prosecutor’s statements were improper, Lee cites Rowley v.

       State, 259 Ind. 209, 213, 285 N.E.2d 646, 648 (1972), for the rule that “[a]

       comment made by a prosecuting attorney, directly or indirectly, which is

       subject to interpretation by a jury as a comment upon failure of a defendant to

       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2414 | August 8, 2017   Page 10 of 12
       testify has been strictly regarded as an impingement on the substantial right of

       the defendant.” Lee acknowledges that he did not remain completely silent in

       that he took the stand and answered a single question. He nevertheless argues

       that it is misconduct for the prosecutor to draw attention to the fact that he had

       nothing more to say about the allegations in his defense and to equate such to a

       lack of credibility on his part.


[23]   When a defendant does not take the stand in his own defense, the “Fifth

       Amendment privilege against self-incrimination is violated ‘when a prosecutor

       makes a statement that is subject to reasonable interpretation by a jury as an

       invitation to draw an adverse inference from a defendant’s silence.’” Dumas v.

       State, 803 N.E.2d 1113, 1118 (Ind. 2004) (quoting Moore v. State, 669 N.E.2d

       733, 739 (Ind. 1996)). Here, however, Lee chose not to remain silent and

       testified in his own defense. Thus, the prosecutor’s comments were not a

       comment on Lee’s failure to take the stand and thus, did not violate his Fifth

       Amendment right not to testify. See U.S. v. Miller, 276 F.3d 370, 374 (7th Cir.

       2002) (noting that because defendant testified, prosecutor’s remarks did not

       violate defendant’s Fifth Amendment right not to testify); U.S. v. Cabrera, 201

       F.3d 1243, 1250 (9th Cir. 2000) (holding that defendant’s “Fifth Amendment

       rights were not implicated because he chose to testify in his own defense”).

       Moreover, the challenged statements were comments directed at Lee’s

       credibility, not his right not to testify. The prosecutor’s comments do not

       constitute misconduct, let alone amount to fundamental error


[24]   Judgment affirmed.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2414 | August 8, 2017   Page 11 of 12
[25]   Kirsch, J. and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2414 | August 8, 2017   Page 12 of 12
