MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                                Jun 28 2019, 9:54 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Philip R. Skodinski                                      Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Quintein S. Walker,                                      June 28, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1708-CR-1837
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable John M.
Appellee-Plaintiff                                       Marnocha, Judge
                                                         Trial Court Cause No.
                                                         71D02-1610-F1-18



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1708-CR-1837 | June 28, 2019             Page 1 of 9
[1]   Quintein S. Walker appeals his conviction of Level 1 felony child molestation. 1

      Walker argues the evidence was insufficient to convict him and the trial court

      abused its discretion and violated his constitutional right to cross-examine a

      witness by not allowing testimony regarding his victim’s previous sexual

      encounters. We affirm.



                                Facts and Procedural History
[2]   In October 2016, Walker was living with his girlfriend Chandra Jackson and

      her six children. On October 8, 2016, Jackson and Walker were watching

      movies in their bedroom. Two of Jackson’s children, N.J. and Z.J., were

      watching movies with them. Walker and Jackson had both mattresses in the

      room pushed together and were lying with the children. N.J., who was eight,

      was lying between Walker and Z.J. Jackson and Z.J. both fell asleep. While

      they were asleep, Walker pushed N.J. “towards his balls” and “made [her] suck

      them.” (Tr. Vol. II at 47-49.) Walker also touched N.J.’s butt and put his

      fingers in her vagina. Walker told N.J. he would hit her if she told anyone.


[3]   Jackson woke up when she felt Walker’s arm moving as if he were

      masturbating. Jackson said Walker was still watching the same movie that

      Jackson had fallen asleep to. When Jackson began to move, Walker moved

      closer to her and adjusted his pants. Jackson turned on the lights and told the




      1
          Ind. Code § 35-42-4-3 (2015).


      Court of Appeals of Indiana | Memorandum Decision 71A03-1708-CR-1837 | June 28, 2019   Page 2 of 9
      children to leave. Jackson noticed N.J. was still under the covers. When

      Jackson pulled back the covers, N.J. was “facing [Walker’s] private area.” (Tr.

      Vol. II at 25.) As N.J. left the room, Jackson saw her adjusting her underwear.

      After asking N.J. what happened, Jackson and N.J. confronted Walker, who

      immediately got angry.


[4]   Walker left the house, and Jackson took N.J. to the hospital. The doctor

      observed evidence of irritation on the inside of N.J.’s vagina. The doctor

      explained the irregularities were uncommon for someone N.J.’s age. The

      injuries were consistent with finger penetration. A DNA test of material found

      on N.J.’s underwear revealed male DNA, but there was not enough to

      determine whose it was.


[5]   At trial, Walker’s attorneys wanted to question N.J. about her sexual

      knowledge and about prior sexual encounters she had had with her cousins and

      brother. After a brief hearing away from the jury, the trial court decided to not

      allow questioning regarding those matters. Walker was convicted of one count

      of Level 1 felony child molesting and sentenced to thirty-years.



                                 Discussion and Decision




      Court of Appeals of Indiana | Memorandum Decision 71A03-1708-CR-1837 | June 28, 2019   Page 3 of 9
                                            Sufficient Evidence
[6]   Walker argues the evidence is insufficient to support his conviction. 2 When

      considering the sufficiency of evidence, “a reviewing court does not reweigh the

      evidence or judge the credibility of the witnesses.” McHenry v. State, 820 N.E.2d

      124, 126 (Ind. 2005). We must affirm “if the probative evidence and reasonable

      inferences drawn from the evidence could have allowed a reasonable trier of

      fact to find the defendant guilty beyond a reasonable doubt.” Id. at 126

      (internal citation omitted).


[7]   To prove Walker committed Level 1 felony child molesting, the State had to

      present sufficient evidence that (1) Walker, (2) who was over the age of twenty-

      one, (3) with a child under fourteen years of age, (4) knowingly or intentionally

      performed “other sexual conduct.” Ind. Code § 35-42-4-3(a)(1). “Other sexual

      conduct” is defined as “an act involving a sex organ of one person and the

      mouth or anus of another person; or the penetration of the sex organ or anus of

      a person by an object.” Ind. Code § 35-31.5-2-221.5.


[8]   N.J. testified Walker put his finger in her vagina. Walker argues N.J.’s account

      is not believable because Jackson and Z.J. were both in the room. However, it

      is not our duty to judge the credibility of a witness or reweigh the evidence. See

      McHenry, 820 N.E.2d at 126 (stating standard of review). N.J.’s testimony,




      2
       The Appellant’s brief contained multiple spelling, grammar, and citation errors rendering it difficult to read
      and determine the arguments being made.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1708-CR-1837 | June 28, 2019                Page 4 of 9
      which is supported by part of Jackson’s testimony and by the doctor’s findings,

      is sufficient to support Walker’s conviction. See, e.g., D’Paffo v. State, 749

      N.E.2d 1235, 1239 (Ind. Ct. App. 2001) (minor victim’s testimony as to

      defendant sexually assaulting her with fingers was sufficient to support child

      molesting conviction), summarily aff’d in relevant part 778 N.E.2d 798, 803 n.2

      (Ind. 2002).


                                   Indiana Evidence Rule 412
[1]   Walker also argues the trial court abused its discretion by not allowing Walker

      to cross-examine N.J. about her prior sexual experience and her sexual

      knowledge. Trial courts have broad discretion to determine the admissibility of

      evidence at trial, Snow v. State, 77 N.E.3d 173, 177 (Ind. 2017), and we review

      the trial court’s decision for an abuse of discretion. Marcum v. State, 772 N.E.2d

      998, 1000 (Ind. Ct. App. 2002). An abuse of discretion occurs if the trial court’s

      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.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g

      875 N.E.2d 218 (Ind. 2007).


[2]   Indiana Evidence Rule 412, the Rape Shield Rule, prevents the admission of

      evidence offered to prove a victim or witness engaged in sexual behavior on

      other occasions. There are three exceptions to the Rule:


              (A) evidence of specific instances of a victim’s or witness’s sexual
              behavior, if offered to prove that someone other than the


      Court of Appeals of Indiana | Memorandum Decision 71A03-1708-CR-1837 | June 28, 2019   Page 5 of 9
              defendant was the source of semen, injury, or other physical
              evidence;


              (B) evidence of specific instances of a victim’s or witness’s sexual
              behavior with respect to the person accused of the sexual
              misconduct, if offered by the defendant to prove consent or if
              offered by the prosecutor; and


              (C) evidence whose exclusion would violate the defendant’s
              constitutional rights.


      Evid. Rule 412(b)(1).


[3]   Walker wanted to use Exception (A) to question N.J. regarding prior sexual

      contacts with her cousins and brother. The trial court held a hearing outside

      the presence of the jury to determine the admissibility of the testimony. Under

      Exception (A), evidence of sexual behavior becomes admissible if it could prove

      “someone other than the defendant was the source of semen, injury, or other

      physical evidence[.]” Id. However, Walker did not argue N.J.’s cousins or

      brother were the source of the irritation inside her vagina, and in regard to the

      experiences with her cousins and brother, N.J. testified she touched them, but

      they did not touch her. (See Tr. Vol. II at 105.) As a result, the evidence could

      not have demonstrated someone other than Walker was the source of the

      physical evidence, and the trial court correctly determined the information was




      Court of Appeals of Indiana | Memorandum Decision 71A03-1708-CR-1837 | June 28, 2019   Page 6 of 9
      not admissible under Exception (A). 3 See Parrish v. State, 515 N.E.2d 516, 519-

      520 (Ind. 1987) (trial court properly denied the defendant’s request to question

      the child victim about prior sexual abuse because the Indiana Rape Shield

      statute prevents inquiry into past sexual conduct).


[4]   Additionally, under Exception (C), Walker argues his Sixth Amendment right

      to confront a witness was violated. At trial, Walker did not assert a

      constitutional argument. As a result, Walker waived this argument. See Small

      v. State, 736 N.E.2d 742, 747 (Ind. 2000) (defendant failed to raise a

      Confrontation Clause objection at trial and, thereby, waived the argument on

      appeal).


[5]   Waiver, notwithstanding Walker’s right to confront N.J., was not violated. The

      Supreme Court has held “the Confrontation Clause guarantees an opportunity

      for effective cross-examination, not cross-examination that is effective in

      whatever way, and to whatever extent, the defense might wish.” Delaware v.

      Fensterer, 474 U.S. 15, 20 (1985) (emphasis in original). “[T]rial judges retain

      wide latitude insofar as the Confrontation Clause is concerned to impose

      reasonable limits on such cross-examination based on concerns about, among

      other things, harassment, prejudice, confusion of the issues, the witness safety,




      3
       Nor could the evidence had been admissible under Exception (B) as an eight-year-old child cannot ever give
      consent. See Evid. Rule 412(b)(1)(B) (making other sexual encounters between victim and defendant
      admissible “if offered by the defendant to prove consent”).

      Court of Appeals of Indiana | Memorandum Decision 71A03-1708-CR-1837 | June 28, 2019            Page 7 of 9
      or interrogation that is repetitive or only marginally relevant.” Delaware v. Van

      Arsdall, 475 U.S. 673, 679 (1986).


[6]   Walker wanted to question N.J. regarding her previous sexual encounter with

      her cousins because, Walker alleged, that was where she learned the term

      “sucking balls.” (Tr. Vol. II at 94.) The trial court determined this information

      was not relevant and would not have been effective in disproving any facts of

      consequence in this case. (Id. at 113.) “Evidence is relevant when it has ‘any

      tendency’ to prove or disprove a consequential fact.” Snow, 77 N.E.3d at 177.

      We fail to see how testimony regarding where N.J. learned the term “sucking

      balls” could be relevant to whether inappropriate sexual contact occurred

      between Walker and N.J. on the night in question. At best, the evidence was

      only marginally relevant. The trial court did not violate Walker’s constitutional

      right to cross-examine a witness by excluding the evidence. See West v. State,

      755 N.E.2d 173, 185 (Ind. 2001) (trial court properly denied the cross-

      examination of a witness where the testimony would have been irrelevant).



                                              Conclusion
[7]   The evidence was sufficient to convict Walker of Level 1 felony child

      molestation. Additionally, because Walker did not meet any of the exceptions

      in Indiana Evidence Rule 412, the trial court properly refused to permit Walker

      to question N.J. about prior sexual behavior. Finally, the trial court’s denial of

      Walker’s request to question N.J. about prior sexual behavior did not violate

      Walker’s Sixth Amendment rights. Accordingly, we affirm.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1708-CR-1837 | June 28, 2019   Page 8 of 9
[8]   Affirmed.


      Mathias, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1708-CR-1837 | June 28, 2019   Page 9 of 9
