MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Nov 22 2017, 6:17 am
court except for the purpose of establishing
the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Susan D. Rayl                                           Curtis T. Hill, Jr.
Smith Rayl Law Office, LLC                              Attorney General of Indiana
Indianapolis, Indiana
                                                        George P. Sherman
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Dennis Winfert,                                         November 22, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1706-CR-1422
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Marc T.
Appellee-Plaintiff.                                     Rothenberg, Judge
                                                        Trial Court Cause No.
                                                        49G02-1602-F3-7567



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1422 | November 22, 2017       Page 1 of 10
                                       Statement of the Case
[1]   Dennis Winfert appeals his conviction, following a jury trial, for sexual

      misconduct with a minor, as a Level 4 felony. Winfert raises two issues for our

      review, which we restate as follows:


              1.      Whether the trial court abused its discretion and violated
                      Winfert’s Fifth Amendment right to testify and his Sixth
                      Amendment right to present a defense when it excluded a
                      statement made by Winfert that a witness was not telling
                      the truth.

              2.      Whether the trial court abused its discretion when it
                      excluded extrinsic evidence of a witness’ prior inconsistent
                      statement.


[2]   We affirm.


                                 Facts and Procedural History
[3]   A.A. was born in January of 2002 to J.A. (“Mother”). In 2008, Winfert and

      Mother began a romantic relationship. In 2013, they began to live together

      with A.A. and Winfert’s children. On February 17, 2016, Winfert came into

      A.A.’s room and pulled her pants down. Winfert “told [A.A.] to shut up and

      he put his hand on [her] mouth.” Tr. at 12. Winfert then had sexual

      intercourse with A.A. After Winfert left her room, A.A. showered, changed

      her clothes, and threw the underwear and pajamas she had been wearing into

      the trash. The next day, A.A. told a counselor at her school what Winfert had

      done. The counselor called the Indiana Department of Children Services



      Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1422 | November 22, 2017   Page 2 of 10
      (“DCS”), and a DCS family case manager went to A.A.’s school to interview

      her.


[4]   Thereafter, the DCS family case manager took A.A. to the Center of Hope at

      Riley Hospital for Children where pediatric nurse Barbara Mulvaney examined

      her. During the examination, Mulvaney observed an area of redness and

      swelling on A.A.’s labia minora, which, Mulvaney concluded, was indicative of

      possible trauma. Mulvaney then collected a total of eight internal and external

      genital swabs from A.A. Those items were submitted for DNA testing. On at

      least four of the swabs, the forensic scientist with the Indianapolis/Marion

      County Forensic Services Agency found two contributors of DNA, A.A. and

      another person, but there was an insufficient amount of DNA for additional

      DNA testing. The forensic scientist then performed YSTR testing, which looks

      for Y chromosomes, on all eight swabs. Those tests showed the presence of

      YSTR DNA in all eight samples. The forensic scientist then compared the

      YSTR DNA found in the samples to a sample of DNA that officers collected

      from Winfert. The YSTR DNA profile found in the samples was consistent

      with the YSTR DNA profile of Winfert. Based on this, “Winfert and all of his

      male patrilineal related relatives” could not be excluded as potential

      contributors of the sample. Id. at 186. Further, the forensic scientist estimated

      that one in 621 individuals would have the same YSTR DNA profile.


[5]   On February 29, 2016, the State charged Winfert with rape, as a Level 3 felony;

      sexual misconduct with a minor, as a Level 4 felony; and battery, as a Class A

      misdemeanor. The trial court held a jury trial on May 22 and 23, 2017.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1422 | November 22, 2017   Page 3 of 10
Mother testified during the State’s case-in-chief. During his cross-examination

of Mother, Winfert questioned her about A.A.’s behavioral problems at school.

The following colloquy occurred:


        Q.    Is it your understanding that A.A.[,] during this time
        period of February 17, 18, of 2016, was having some disciplinary
        problems at school?


        A.      No.


        Q.     Do you recall giving a statement at the child advocacy
        center on February the 18[th], of 2016? With Detective Nicolle
        Flynn present?


        A.      Was that a lady detective?


        Q.      Yes.


        A.      Yes, I remember.


        Q.      In fact she’s sitting right here.


        A.      Yes.


        Q.    I would like to show you what you said on that day and let
        you read it. Page six.


        A.    A.A. was never in trouble at school. She struggled with
        math but that was all. Yes, A.A. is bright. She does well in
        school. Is that all?



Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1422 | November 22, 2017   Page 4 of 10
              Q.     Did you say that—on that date that A.A. was in trouble
              and Dennis tried to help her when she failed eighth grade? I
              think the interpreter was unsure of the word failed.


              A.      No, that’s not true.


                                                    * * *


              A.      A.A. has never failed in school. Never.


                                                    * * *


              Q.    Do you recall being asked, did she get in trouble last night
              and answering, yes, she was smarting off, not doing well in
              school?


              A.     I remember that day but I did not say that. And I wasn’t
              talking about the school situation.


      Tr. at 69-70.


[6]   The State also called Detective Nicolle Flynn as a witness. Winfert cross-

      examined her, and the following colloquy occurred:


              Q.    Okay. And . . . during your investigation you took a
              statement from . . . A.A.’s mother, correct?


              A.      Yes.


              Q.    And [Mother] told you that A.A. had been in trouble at
              school didn’t she?


      Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1422 | November 22, 2017   Page 5 of 10
      Tr. at 126. The State then objected to the statement on hearsay grounds. The

      court sustained the objection, struck the question, and instructed the jury to not

      consider the statement in any way.


[7]   During Winfert’s case-in-chief, Winfert testified. During his testimony, his

      attorney asked him why he had decided to testify. In response, Winfert stated,

      “I felt I should go ahead because [Mother] did not tell the truth about a lot

      things and I just wanted—.” Tr. at 207. The State objected to the testimony,

      and the court sustained the objection.


[8]   The jury found Winfert guilty of sexual misconduct with a minor, as a Level 4

      felony, but acquitted him on the other two charges. The trial court entered

      judgment of conviction accordingly and sentenced Winfert to eight years, with

      five years executed in the Indiana Department of Correction, two years on

      home detention, and one year on sex-offender probation. This appeal ensued.


                                     Discussion and Decision
                                    Issue One: Winfert’s Testimony

      Winfert first claims that the trial court abused its discretion when it excluded his

      testimony that Mother had lied during her testimony, and he maintains that this

      exclusion violated his Fifth and Sixth Amendment rights. The Indiana

      Supreme Court has recently provided that when ruling on the admissibility of

      evidence when a constitutional violation is alleged, “‘the proper standard of

      appellate review is de novo.’” Ackerman v. State, 51 N.E.3d 171, 177 (Ind. 2016)

      (quoting Speers v. State, 999 N.E.2d 850, 852 (Ind. 2013)).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1422 | November 22, 2017   Page 6 of 10
[9]    Again, Winfert testified during his case-in-chief. During his testimony, his

       attorney asked him why he had decided to testify. In response, Winfert stated:

       “I felt I should go ahead because [Mother] did not tell the truth about a lot

       things and I just wanted—.” Tr. at 207. The State objected and asserted that

       “[a]nother witness cannot testify as [to] the truthfulness of another witness.” Id.

       The court sustained the objection and struck that portion of the testimony.


[10]   Winfert asserts that he “was the defendant, not a witness, in this case and he

       had a Fifth Amendment right to testify and tell the jury that a witness against

       him lied about facts of which he had personal knowledge, as well as a Sixth

       Amendment right to present his defense.” Appellant’s Br. at 12. In other

       words, Winfert contends that Indiana Rule of Evidence 704(b) only applies to

       witnesses, and a defendant is not a “witness” for purposes of the rule. Winfert

       contends further that “[t]here is no evidentiary rule, including Rule 704,

       forbidding a defendant from testifying as to the truthfulness of a witness.” Id. at

       14. However, Winfert does not cite any legal authority to support his

       contentions on this issue.


[11]   Indiana Rule of Evidence 704(b) states that “[w]itnesses may not testify to

       opinions concerning intent, guilt, or innocent in a criminal case; the truth or

       falsity of allegations; whether a witness has testified truthfully; or legal

       conclusions.” (Emphasis added.) And “‘[n]o witness, whether lay or expert, is

       competent to testify that another witness is or is not telling the truth.’” Bradford

       v. State, 960 N.E.2d 871, 875 (Ind. Ct. App. 2012) (quoting Angleton v. State, 686

       N.E.2d 803, 812 (Ind. 1997)).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1422 | November 22, 2017   Page 7 of 10
[12]   A witness is defined as “someone who gives testimony under oath or

       affirmation (1) in person, (2) by oral or written deposition, or (3) by affidavit.”

       Black’s Law Dictionary 1838 (10th ed. 2014). It is undisputed that Winfert

       gave testimony under oath and in person during his trial. As such, Winfert was

       a witness. Because Winfert was a witness at his trial, Indiana Rule of Evidence

       704(b) applies to his testimony. Further “‘[t]he accused does not have an

       unfettered right to offer testimony that is incompetent, privileged, or otherwise

       inadmissible under standard rules of evidence.’” Schermerhorn v. State, 61

       N.E.3d 375, 379 (Ind. Ct. App. 2016) (quoting Taylor v. Illinois, 484 U.S. 400,

       410 (1988)), trans denied. Because Indiana Rule of Evidence 704(b) applied to

       Winfert during his testimony, he was prohibited from testifying that Mother did

       not tell the truth during her testimony. The trial court did not violate Winfert’s

       Fifth Amendment right to testify or his Sixth Amendment right to present a

       defense when it sustained the State’s objection and struck his testimony that

       Mother had lied.


                               Issue Two: Prior Inconsistent Statement

[13]   Winfert next claims that the trial court abused its discretion when it excluded

       extrinsic evidence of Mother’s prior inconsistent statement. We review a trial

       court’s evidentiary rulings for an abuse of discretion. State Farm Mut. Auto. Ins.

       Co. v. Earl, 33 N.E.3d 337, 340 (Ind. 2015). Again, during the State’s case-in-

       chief Mother testified and Winfert cross-examined her. At one point, Winfert

       questioned Mother about A.A.’s behavioral problems at school. Specifically,

       Winfert asked Mother whether she had told Detective Flynn at the child

       Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1422 | November 22, 2017   Page 8 of 10
       advocacy center that A.A. had been in trouble at school. Mother responded

       and stated that A.A. had never failed in school. Mother further stated that she

       remembered the conversation with Detective Flynn, but that she did not say

       A.A. had been in trouble at school and that she “wasn’t talking about the

       school situation.” Tr. at 70.


[14]   During Detective Flynn’s testimony, Winfert cross-examined her. Winfert

       asked Detective Flynn if Mother told her that A.A. had been in trouble at

       school. The State then objected to the statement on hearsay grounds. Winfert

       responded by asserting that it was a “[p]rior inconsistent statement of what

       [Mother] said on the stand.” Id. The court sustained the objection, struck the

       question, and instructed the jury to not consider the statement in any way.


[15]   Winfert contends that Detective Flynn’s statement was admissible as a prior

       inconsistent statement under Indiana Evidence Rule 613. In support of his

       contention, Winfert cites Jackson v. State, 925 N.E.2d 369, 375 (Ind. 2010),

       where our Supreme Court stated that “Rule 613 allows the use of a prior

       inconsistent statement to impeach a witness, and when so used, the statement is

       not hearsay.” Id.


[16]   However, as the State points out and Winfert concedes, Winfert did not make

       an offer of proof to preserve this issue for our review. “It is well settled that an

       offer of proof is required to preserve an error in the exclusion of a witness’

       testimony.” Dowdell v. State, 720 N.E.2d 1146, 1150 (Ind. 1999). “An offer of

       proof allows the trial and appellate courts to determine the admissibility of the


       Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1422 | November 22, 2017   Page 9 of 10
       testimony and the potential for prejudice if it is excluded.” Id. Without an

       offer of proof as to how Detective Flynn would have answered Winfert’s

       question, we cannot say on appeal that her answer mattered. Accordingly, the

       issue is waived. And, waiver notwithstanding, we are not persuaded that any

       answer Detective Flynn would have given would have had a probable impact

       on the outcome. See Ind. Appellate Rule 66(A).


[17]   In conclusion, Winfert, the defendant, became a witness when he testified. As

       such, he was subject to Indiana Rule of Evidence 704. The trial court did not

       violate his Fifth Amendment right to testify or his Sixth Amendment right to

       present a defense when the trial court struck his testimony that Mother had lied

       during her testimony. Further, Winfert waived any error in the exclusion of

       Detective Flynn’s testimony when he failed to make an offer of proof.


[18]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1422 | November 22, 2017 Page 10 of 10
