      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                           FILED
      regarded as precedent or cited before any
      court except for the purpose of establishing               May 04 2017, 8:12 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
      Yvette M. LaPlante                                      Curtis T. Hill, Jr.
      Keating & LaPlante, LLP                                 Attorney General of Indiana
      Evansville, Indiana                                     Jesse R. Drum
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Eugene Croffett,                                        May 4, 2017
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              82A01-1606-CR-1428
              v.                                              Appeal from the Vanderburgh
                                                              Circuit Court
      State of Indiana,                                       The Honorable Michael J. Cox,
      Appellee-Plaintiff.                                     Magistrate
                                                              Trial Court Cause No.
                                                              82C01-1510-F1-5993



      Mathias, Judge.


[1]   Following a jury trial in Vanderburgh Circuit Court, Eugene Croffett

      (“Croffett”) was convicted of child molesting as a Level 4 felony and admitted


      Court of Appeals of Indiana | Memorandum Decision 82A01-1606-CR-1428 | May 4, 2017    Page 1 of 9
      to being a habitual offender. Croffett appeals and argues that the trial court

      committed fundamental error by admitting into evidence a handwritten note

      Croffett composed during a police interrogation. Concluding that the admission

      of the note did not constitute fundamental error, we affirm.


                                 Facts and Procedural History

[2]   Croffett is the uncle of Arthur Croffett (“Arthur”), who is married to Crystal

      Croffett (“Crystal”). Arthur and Crystal have four children — two boys and two

      girls. Their younger daughter is L.C., who was born in 2010, and the older

      daughter is M.C., who was born in 1999.


[3]   On September 26, 2015, Arthur threw a surprise birthday party for Crystal.

      Croffett was one of the guests to this party. While the adults drank alcohol and

      played cards, the children were upstairs watching a movie. Croffett drank a

      considerable amount of alcohol and became intoxicated. Most of the guests left

      by 10:00 p.m., but Croffett stayed until Arthur went to bed. Arthur told his

      uncle that he could sleep on the couch.

[4]   At approximately midnight, M.C., who had been at a friend’s house and

      decided to spend the night there, came back home to get some clothes. She saw

      Croffett walking around downstairs by himself. After getting her clothes from

      upstairs, M.C. came back downstairs, and Croffett told her, “[I]f you need

      anything, I gotcha.” Tr. p. 116. M.C. thought this was an odd statement, and it

      made her feel uncomfortable.



      Court of Appeals of Indiana | Memorandum Decision 82A01-1606-CR-1428 | May 4, 2017   Page 2 of 9
[5]   Later that night, Croffett snuck into L.C.’s room. He rubbed the then five-year-

      old girl’s back, placed his hands inside her clothing, and touched her genitals

      and anal area.


[6]   The next morning, Arthur and his family went out to eat breakfast, but Croffett

      remained behind. On the way back home, M.C. stated that Croffett was a

      “creep” for what he had said to her. L.C. then chimed in and stated, “[Y]eah,

      and your uncle came in my room, and he rubbed my back, and he put his hands

      where I pee.” Tr. pp. 44-45. Arthur returned home and confronted his uncle,

      who denied having touched the girl.


[7]   Crystal eventually reported the incident to the police and was told to take L.C.

      to a victim’s advocacy center to be interviewed. There, L.C. claimed that she

      was touched by “Uncle Nate.” Tr. p. 283. Uncle Nate was the name of another

      friend of the family. Investigators therefore showed L.C. a photographic line-up

      of six men, which included photos of both Uncle Nate and Croffett. L.C.

      identified both men as “Uncle Nate,” but immediately identified Croffett as the

      one who had inappropriately touched her.


[8]   In the meantime, Evansville Police Department Detective Brian Turpin

      (“Detective Turpin”) interviewed Croffett at the police station. Detective

      Turpin read Croffett each of his Miranda rights off of a form and asked if

      Croffett understood each of these rights. Croffett indicated that he understood.

      Croffett then signed a waiver of his rights and agreed to speak to the police.

      Detective Turpin told him that L.C. had accused Croffett of touching her


      Court of Appeals of Indiana | Memorandum Decision 82A01-1606-CR-1428 | May 4, 2017   Page 3 of 9
       private parts. Croffett denied this. He admitted that he had drank alcohol and

       smoked marijuana at the party, and he also stated that he went upstairs at one

       point in the evening to talk to his nephew Arthur but went back down stairs to

       sleep on the couch when Arthur told him that he was trying to sleep. Croffett

       insisted that he had not gone into L.C.’s room.


[9]    When confronted with the possibility that his DNA might be in L.C.’s clothing,

       he maintained his innocence and agreed to have his DNA collected for testing.

       Croffett also stated that he had drank quite a bit that night and did not

       remember anything after falling asleep on the couch. Detective Turpin asked

       Croffett if he was sorry for what happened to L.C., to which Croffett replied, “I

       don’t know what happened to her but you know like I say, I don’t remember

       nothing about that.” Tr. p. 269.


[10]   Detective Turpin then told Croffett that writing a note apologizing for what he

       had done might help the family feel better. Still, Croffett stated, “I don’t

       remember nothing.” Tr. p. 270. Detective Turpin then stated, “Just do your best

       and I think that that would really help a lot in letting them know that you’re

       not, you know, calling [L.C.] a liar or anything like that because you know

       you’re sorry for what happened. If you’re not sorry for what happened then

       definitely don’t write the letter, alright?” Id. Detective Turpin gave Croffett a

       pad of paper and a pen and left the room. Croffett wrote a note stating, “I’m so

       sorry what had haping [sic] to you I’m very sorry of that.” Appellant’s App. p.

       137.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-CR-1428 | May 4, 2017   Page 4 of 9
[11]   On October 1, 2015, the State charged Croffett with Count I, Level 1 felony

       child molesting, Count II, Level 1 felony child molesting, and Count III, Level

       4 felony child molesting. The State later alleged that Croffett was a habitual

       offender. A jury trial was held on May 11 and 12, 2016. At trial, the State

       introduced into evidence the note Croffett had written without objection. The

       jury ultimately found Croffett not guilty on Counts I and II, but guilty on Count

       III. Croffett then admitted to being a habitual offender. On June 9, 2016, the

       trial court sentenced Croffett to the advisory term of six years to which the

       court added a ten-year habitual offender enhancement. Croffett now appeals.


                                      Discussion and Decision

[12]   Croffett claims that the trial court committed fundamental error in the

       admission of the handwritten note. Questions regarding the admission of

       evidence are entrusted to the sound discretion of the trial court. Boatner v. State,

       934 N.E.2d 184, 186 (Ind. Ct. App. 2010). On appeal, we review the trial

       court’s decision only for an abuse of that discretion. Id. A trial court abuses its

       discretion if its decision is clearly against the logic and effect of the facts and

       circumstances before the court, or if the court has misinterpreted the law. Id.


[13]   Generally, to preserve a claim of evidentiary error for purposes of appeal, a

       defendant must make a timely objection to the admission of the evidence at

       issue. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). “The purpose of this rule

       is to allow the trial judge to consider the issue in light of any fresh developments

       and also to correct any errors.” Id. If a defendant fails to properly preserve the


       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-CR-1428 | May 4, 2017   Page 5 of 9
       evidentiary issue by failing to object, we will review the trial court’s decision

       only for fundamental error. As explained by our supreme court in Sampson v.

       State:


                The fundamental error doctrine is an exception to the general
                rule that the failure to object at trial constitutes procedural default
                precluding consideration of the issue on appeal. This exception
                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. Harm is not shown by the fact that the defendant was
                ultimately convicted; rather harm is found when error is so
                prejudicial as to make a fair trial impossible.


       38 N.E.3d 985, 992 (Ind. 2015) (citations and internal quotations omitted). This

       is an exacting standard that Croffett has failed to meet.

[14]   The essence of Croffett’s argument is that his “confession” in the note was

       involuntary due to the deceptive interrogation tactics of Detective Turpin.

       When evaluating a claim that a statement was not given voluntarily,1 a trial

       court should consider the totality of the circumstances, including whether there

       is police coercion; the length, location, and continuity of the interrogation; and




       1
         If a defendant challenges the voluntariness of a confession under the United States Constitution, the State
       must prove the statement was voluntarily given by a preponderance of the evidence. Malloch v. State, 980
       N.E.2d 887, 901 (Ind. Ct. App. 2012) (citing Pruitt v. State, 834 N.E.2d 90, 114 (Ind. 2005)), trans. denied. The
       Indiana Constitution, however, requires the State to prove beyond a reasonable doubt that the defendant
       voluntarily waived his rights and that the confession was voluntarily given. Id. Here, Croffett did not
       challenge the voluntariness of his statement below, and the State was accordingly not put to the task of
       meeting this burden. Croffett does not explain under which constitution he claims his statement was
       involuntary. Regardless, we believe that the State presented evidence sufficient to establish the voluntariness
       of Croffett’s statement under either standard.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-CR-1428 | May 4, 2017                    Page 6 of 9
       the maturity, education, physical condition, and mental health of the defendant.

       Malloch v. State, 980 N.E.2d 887, 901 (Ind. Ct. App. 2012), trans. denied. On

       appeal, we do not reweigh the evidence but instead examine the record for

       substantial, probative evidence of voluntariness. Id. We examine the evidence

       most favorable to the State, together with the reasonable inferences that can be

       drawn therefrom. Id. If there is substantial evidence to support the trial court's

       conclusion, we will not set it aside. Id.


[15]   Here, nothing in the record persuades us that Croffett’s statement was

       involuntary. He was interviewed by one detective in an interrogation room. He

       was not restrained in any way and was allowed to take restroom breaks. He was

       read his Miranda rights, one at a time, and asked if he understood his rights,

       which he indicated that he did. He was re-read his Miranda rights at the start of

       the second session of interrogation. The interviewing detective did not

       physically threaten Croffett, nor did he use any intimidating body language.

       Nor were the interviews excessive in duration. Detective Turpin told Croffett

       that he believed L.C.’s accusations, and repeatedly asked him to confess. But

       Croffett continued to maintain his innocence.


[16]   To be sure, Detective Turpin admitted that he was exaggerating or being

       deceptive regarding the possibility that Croffett’s DNA being found on the

       victim or her clothing, but this does not render Croffett’s statement involuntary.

       See Pierce v. State, 761 N.E.2d 821, 824 (Ind. 2002) (noting that police deception

       weights against the voluntariness of a confession but is not dispositive and is

       only one consideration in determining the voluntariness of a statement and that

       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-CR-1428 | May 4, 2017   Page 7 of 9
       the police claim that they had a preliminary DNA match for the defendant did

       not render his confession involuntary). However, even after being told that his

       DNA would be found on the victim or her clothing, Croffett maintained his

       innocence and stated that he would not believe such results.

[17]   We also cannot ignore that the handwritten note was not a full confession or

       even an admission that he committed the crime. “A confession must include all

       essential elements of the crime, whereas an admission merely admits some fact

       which tends to connect the defendant with the alleged offense.” Parsons v. State,

       166 Ind. App. 152, 155-56, 333 N.E.2d 871, 873 (1975); accord Knight v. State,

       436 N.E.2d 866, 868 (Ind. Ct. App. 1982). Here, Croffett’s note was merely a

       statement that Croffett was sorry for what happened to L.C. Although this may

       be somewhat incriminating, it falls short of a full confession or even an

       admission. Indeed, the State made no mention the note in its closing argument

       to the jury, whereas Croffett mentioned the note and argued that it was not

       incriminating because it was not a confession.

[18]   Croffett also claims that his lack of education and intelligence weighs against

       the admission of the statement. However, Croffett indicated that he understood

       his Miranda rights and waived them. Even given his limited education, he

       withstood the police interrogation without ever confessing, even in the face of

       exaggerated claims regarding the possibility of DNA evidence. We also cannot

       ignore that this was not Croffett’s first run-in with the criminal justice system.

       He has a long criminal history and admitted to being a habitual offender. Thus,

       he was not a naive first-time offender unfamiliar with police tactics.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-CR-1428 | May 4, 2017   Page 8 of 9
[19]   In short, nothing in the record convinces us that the admission of a marginally

       incriminating handwritten note deprived Croffett of due process or made a fair

       trial impossible.


[20]   Affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1606-CR-1428 | May 4, 2017   Page 9 of 9
