MEMORANDUM DECISION                                                                       FILED
                                                                                     May 25 2016, 6:53 am

Pursuant to Ind. Appellate Rule 65(D),                                                    CLERK
                                                                                      Indiana Supreme Court
this Memorandum Decision shall not be                                                    Court of Appeals
                                                                                           and Tax Court
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
Ronald K. Smith                                         Gregory F. Zoeller
Public Defender                                         Attorney General of Indiana
Muncie, Indiana
                                                        Monika Prekopa Talbot
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jerome C. Lockhart,                                     May 25, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A02-1507-CR-895
        v.                                              Appeal from the Delaware Circuit
                                                        Court
State of Indiana,                                       The Honorable Marianne Vorhees,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        18C01-1212-FB-25



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016               Page 1 of 14
[1]   Jerome Lockhart appeals his convictions for Rape, a Class B Felony,1 and

      Sexual Misconduct, a Class B Felony.2 He argues that the State improperly

      used a peremptory challenge on a Black jury candidate, and that the trial court

      made several evidentiary errors. Finding that the State had a race-neutral

      justification for its peremptory challenge and that the trial court made no

      evidentiary errors, we affirm.


                                                      Facts      3




[2]   In August 2012, fourteen-year-old M.S. and her friend J.H. went to Lockhart’s

      residence in Muncie. Lockhart was twenty-one years old at the time. M.S.’s

      parents had given her money to go bowling, but she gave it to Lockhart so that

      he could purchase alcohol. They joined a party taking place in Lockhart’s

      apartment. At some point in the night, M.S. became very intoxicated and

      blacked out. She remembered that she went into the restroom and that

      Lockhart followed her in there. She also testified that she never consented to

      have sex with Lockhart.




      1
          Ind. Code § 35-42-4-1.
      2
          I.C. § 35-42-4-9.
      3
       We held oral argument in this case in the Posey County Courthouse in Mount Vernon. We had the
      pleasure of following a moot court competition between the local high schools, created and hosted by Judge
      Redwine and Judge Almon, a tradition going back a number of years. The moot court jury consists of
      members of the local bar. We thank Judge Redwine, Judge Almon, and the Posey County Bar for their
      hospitality and continued efforts at legal education. And we thank counsel for their able and engaging oral
      advocacy.

      Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016              Page 2 of 14
[3]   A short while later, Lockhart told J.H. that M.S. was in the bathroom. When

      J.H. went in there, she found M.S. unconscious with her pants down around

      her knees. J.H. pulled M.S.’s pants up and took her out to the living room.


[4]   After M.S., who was still unconscious, was propped up in a chair in the living

      room, the party-goers decided that they would “ma[k]e a taco patty out of her,”

      tr. p. 71—they threw soft taco shells, hot sauce, shaving gel, and dishwashing

      liquid at her, covering her unconscious body. At some point, M.S. was taken to

      Lockhart’s bedroom, where J.H. undressed her and changed her into some of

      Lockhart’s clothes.


[5]   When M.S. did not come home by her midnight curfew, her mother became

      concerned. Her mother found out where M.S. had gone, and she drove over to

      Lockhart’s house with her husband. She found her daughter unresponsive and

      unable to wake up. Her husband carried M.S. out of the house. M.S.’s mother

      believed that M.S. might have been raped, so the parents took her to the

      hospital.


[6]   At the hospital, doctors found bruising on M.S.’s inner thighs. She felt

      abdominal pain. She underwent a rape kit examination, but was in so much

      pain that she could not tolerate the speculum examination. The examination

      revealed the presence of seminal material, and a later DNA analysis showed

      that the semen came from Lockhart.




      Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016   Page 3 of 14
[7]   After being read his Miranda4 rights and signing a waiver of rights form,

      Lockhart spoke with Muncie Police investigators in a taped interview, which

      was played with some redactions for the jury. During the interview, Lockhart

      gave multiple versions of what had transpired. First, he said that he let M.S.

      into his apartment so that she could use the restroom, that he found her laying

      on the ground, and that he covered her with a blanket. He said that there

      “wasn’t no sex . . . . Didn’t kiss or, didn’t hug her.” Tr. p. 76. But after a few

      minutes, his story changed: “It was like, I didn’t know she was the age she was,

      okay? She told [me] she was about to be seventeen.” Id. at 90. He then

      conceded that he had sex with her, but said “I mean, it was like she was

      begging me.” Id. He claimed that the intercourse was brief because he began

      feeling guilty about her age. “I didn’t want to. It was like, she damn near

      forced me.” Id. at 103.


[8]   On December 13, 2013, the State charged Lockhart with class B felony rape,

      class B felony sexual misconduct with a minor, and class A misdemeanor

      contributing to the delinquency of a minor. During the voir dire portion of the

      trial, the State used a peremptory challenge to strike a Black woman from the

      jury. She had indicated that she had prior experience with Muncie law

      enforcement and that she felt that the police had not been fair to her. Although

      she would have been the only Black person on the twelve-member jury, two

      alternate jury members were Black women. The trial court ruled in the State’s



      4
          Miranda v. Arizona, 384 U.S. 436 (1966).


      Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016   Page 4 of 14
       favor, finding that the State had a race-neutral reason behind its peremptory

       challenge.


[9]    After the April 13-14, 2015, trial, the jury found Lockhart guilty of rape and

       sexual misconduct with a minor, but not guilty of contributing to the

       delinquency of a minor. The trial court merged the latter conviction into the

       former, and sentenced Lockhart to ten years of incarceration. Lockhart now

       appeals.


                                    Discussion and Decision
                               I. The Peremptory Challenge
[10]   Lockhart’s first argument is that his constitutional rights were violated when the

       State used a peremptory challenge on a Black juror. “Purposeful racial

       discrimination in selection of the venire violates a defendant’s right to equal

       protection because it denies him the protection that a trial by jury is intended to

       secure.” Batson v. Kentucky, 476 U.S. 79, 86 (1986). To determine whether a

       Batson violation has occurred, courts use a three-part test: first, the defendant

       must make a prima facie showing that the peremptory challenge was exercised

       on the basis of race; second, if such a showing is made, the State must offer a

       race-neutral basis for the challenge; third, the trial court must determine

       whether the defendant has shown purposeful discrimination. Cartwright v. State,

       962 N.E.2d 1217, 1220-21 (Ind. 2012). The removal of the only prospective

       Black juror that could have served on a jury is sufficient to create an inference

       that racial discrimination has occurred. McCants v. State, 686 N.E.2d 1281,

       Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016   Page 5 of 14
       1284 (Ind. 1997). On appeal, the trial court’s decision is given great deference,

       and will be set aside only if clearly erroneous. Cartwright, 962 N.E.2d at 1221.


[11]   The State argues that the prima facie showing has not been established;

       although this particular Black woman was struck from the jury, two other

       alternate jurors were Black and were not struck. However, the State has not

       cited to any case holding that the presence of Black alternate jurors is sufficient

       to defeat a Batson challenge,5 and so we will assume that Lockhart has

       established the prima facie showing of racial discrimination.


[12]   Even if we do so, Lockhart’s argument is still unavailing; turning to the second

       part of the Cartwright test, we find that the State had a race-neutral justification

       for its peremptory challenge. This second step of a Batson challenge is satisfied

       if the State’s explanation, on its face, is based on something other than race.

       Forrest v. State, 757 N.E.2d 1003, 1004 (Ind. 2001).


[13]   We initially note that the voir dire procedure was not transcribed in this case.

       The parties subsequently went on the record before the trial judge and recreated

       the circumstances of the peremptory challenge. The parties’ recollection was

       that this potential juror filled out a questionnaire in which she indicated that

       either she or one of her family members had been convicted of a criminal

       offense. The prosecutor informed the trial court that the potential juror had




       5
         In McCants, our Supreme Court found that the defendant made the prima facie showing despite the
       presence of “two other prospective African-American jurors” because “they were among the last members of
       the jury venire and had little chance of serving on the jury.” 686 N.E.2d at 1284 n.1.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016           Page 6 of 14
       been arrested and prosecuted for battery. Moreover, she indicated that she felt

       that the local police had treated her unfairly. The defense attorney, however,

       asked her whether she could fairly and impartially hear the case, and she

       indicated that she could. After hearing argument, the trial court ruled, “I do

       find that the State has proper . . . reasons that are race-neutral for exercising a

       peremptory challenge as to Juror #2, and I will allow the State to exercise a

       peremptory challenge on Juror 2.” Tr. p. 10-11.


[14]   Lockhart argues that “[t]he potential juror was asked several times whether or

       not she could hear this case fairly despite prior contacts with the law. She

       stated that she could. The State of Indiana adduced no evidence to show that

       the potential juror could not do that.” Appellant’s Br. p. 6. But the State did

       present such evidence; namely, that the potential juror felt that the local police

       did not treat her fairly. This is no small matter; the case involved testimony of

       several local police officers, and the potential juror’s negative feelings toward

       the police could have affected how she saw the evidence. Lockhart is

       essentially requesting that this Court replace the trial court’s judgment with our

       own; given our deferential standard of review, this is something we will not do.


                                  II. Admission of Evidence

                                      A. Confession/Saliva
[15]   Lockhart argues that the trial court should have granted his motion to suppress

       his interview with police investigators and his motion to suppress his DNA

       sample. Although he concedes that he signed the waiver of rights form, he

       Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016   Page 7 of 14
       argues that he did not make a knowing and intelligent waiver of his right to

       remain silent, as required by Miranda v. Arizona, 384 U.S. 436, 444 (1966). It is

       the State’s burden to prove beyond a reasonable doubt that the confession was

       given voluntarily. Jackson v. State, 735 N.E.2d 1146, 1153-54 (Ind. 2000). At

       the suppression hearing, Lockhart presented the reports of two mental health

       professionals, who stated that he was below average intelligence, that he felt

       intimidated by the police, and that his fear made him reluctant to assert his

       rights.


[16]   Because the admission or exclusion of evidence falls within the sound discretion

       of the trial court, we review the admission of evidence only for an abuse of

       discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). Such an abuse

       of discretion occurs when the trial court’s decision is clearly against the logic

       and effect of the facts and circumstances before the court. Id. When deciding

       whether a confession was given voluntarily, courts look to the totality of the

       circumstances surrounding the waiver or confession. Jackson, 735 N.E.2d at

       1153. On appeal, we will uphold the finding of the trial court if there is

       substantial evidence of probative value to support it. Id. at 1153-54.


[17]   We find such evidence here. Even the two mental health care professionals,

       cited by Lockhart to establish his reluctance to assert his rights, concluded that

       Lockhart is capable of understanding the waiver of his right to remain silent.

       Lockhart was explained this right by the police and he expressly waived it. Tr.

       p. 64-65. Thus, there is substantial evidence supporting the trial court’s

       conclusion that Lockhart made a voluntary waiver of his right to remain silent,

       Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016   Page 8 of 14
       and the trial court did not err by admitting the confession into evidence. For

       the same reasons, the trial court did not err when it admitted the saliva sample

       that Lockhart volunteered.


                                      B. Modessit Argument
[18]   Lockhart’s third argument is that the State ran afoul of Modessit v. State, 578

       N.E.2d 649 (Ind. 1991). In that case, the State called several witnesses to the

       stand prior to calling the victim, many of whom testified as to statements they

       heard the victim make. Id. at 651-52. Our Supreme Court was concerned that

       by the time the victim testified as to her own statements, there was a prejudicial

       “drumbeat” effect of repeating the same statements multiple times before the

       jury. Id.


[19]   Lockhart argues that something similar happened in this case: the taped

       investigation included questions like, “did you ever hear her say stop, get off of

       me, at any time,” or “would you be surprised if she said that [J.H.] is one of the

       people who heard her saying, ‘Stop. Get off of me.” Tr. p. 76-79. Lockhart

       argues that this created the same “drumbeat” effect mentioned by our Supreme

       Court.


[20]   We disagree; in Modessit, our Supreme Court stressed its concern that the victim

       testified after the other witnesses who repeated her out-of-court statements:

       “Prior to putting the victim on the stand, the victim’s veracity had been, in

       essence, vouchsafed by permitting the three witnesses to repeat the accusations

       of the victim.” 578 N.E.2d at 651. In this case, the State called M.S. as the first

       Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016   Page 9 of 14
       witness. Further, although the officer’s question mentioned statements

       allegedly made by J.H., she was the second witness called in this case. Our

       Supreme Court explained “that truthfulness is safeguarded by having the

       declarant available for cross examination as to the out-of-court statements.” Id.

       Both M.S. and J.H. were available for cross-examination before the taped

       investigation was played for the jury, and so the Modessit rationale does not

       apply to this case.


                         C. Crawford Right to Cross-Examine
[21]   Lockhart next argues that some of the questions used during the course of the

       taped investigation incorporated testimonial hearsay statements of people not

       called to testify at trial, and that this violated Crawford v. Washington, 541 U.S.

       36 (2004). For example, the officers asked Lockhart why “Lavon,” who was

       not called as a witness, asked Lockhart, “Did you have sex with my little

       sister?” Tr. p. 79. Lockhart argues that he had a constitutional right to

       confront whoever made this statement, or that if he could not confront the

       person, that the State should have redacted this question from its video.


[22]   We find that these were not testimonial hearsay statements. “Hearsay” refers

       to “a statement that is not made by the declarant while testifying at the trial or

       hearing; and is offered in evidence to prove the truth of the matter asserted.”

       Ind. Evidence Rule 801(c). In contrast, police questions and comments in an

       interview may be designed to elicit responses from the defendant and if so, are




       Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016   Page 10 of 14
       not offered as proof of the facts asserted therein. Strong v. State, 538 N.E.2d

       924, 928 (Ind. 1989).


[23]   In this case, the trial court was aware that some of the officer’s questions might

       be problematic, and suggested that Lockhart submit a jury instruction that

       would instruct the jury to only consider the police officer’s statements as a

       method of questioning intended to elicit information from Lockhart and not as

       evidence of guilt. Tr. 59. Lockhart never submitted any such instruction.

       Insofar as the omission of this limiting instruction was error, it was invited

       error, which is not reversible. Dumas v. State, 803 N.E.2d 1113, 1121 (Ind.

       2004).


                                   D. Evidence Rule 704(b)
[24]   Lockhart next argues that several police statements included in the video

       violated Indiana Rule of Evidence 704(b), which states, “Witnesses may not

       testify to opinions concerning intent, guilt, or innocence in a criminal case; the

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

       conclusions.” During the interview, the officers questioning Lockhart pressed

       him by saying, “Well, wait a minute, you kinda have been lying. You have

       kind of been lying to us, okay?” Tr. p. 93.


[25]   This argument fails for the same reason that Lockhart’s Crawford argument fails;

       the police were clearly seeking to elicit a response from Lockhart, rather than

       testifying as to his truthfulness. The officers were giving Lockhart an

       opportunity to explain a potential inconsistency in his story. Once again, the

       Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016   Page 11 of 14
       trial court recommended that Lockhart tender a jury instruction explaining that

       the officer’s statements were being used to elicit a response, and once again

       Lockhart did not submit such an instruction.


                                  E. The Rape Shield Statute
[26]   Finally, Lockhart argues that he should have been able to present evidence

       regarding the presence of unknown male DNA that was produced during the

       investigation. The trial court issued an order in limine excluding this evidence,

       ruling that it violated Indiana’s Rape Shield Statute. Ind. Code § 35-37-4-4.

       Lockhart’s counsel violated this order at trial by asking the expert witness a

       question regarding the unknown male DNA. Lockhart argues that he should

       have been allowed to inquire further as a matter of his right to cross-examine

       witnesses and provide a defense.


[27]   Indiana Evidence Rule 412 provides as follows:

               (a)     Prohibited Uses. The following evidence is not admissible
                       in a civil or criminal proceeding involving alleged sexual
                       misconduct:


                       (1)      evidence offered to prove that a victim or witness
                                engaged in other sexual behavior; or


                       (2)      evidence offered to prove a victim’s or witness’s
                                sexual predisposition.


               (b)     Exceptions.



       Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016   Page 12 of 14
                       (1)      Criminal Cases. The court may admit the following
                                evidence in a criminal case:


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


       In this case, the evidence that Lockhart seeks to admit is clearly “evidence of

       the victim’s past sexual conduct.” Evid. Rule 412(a)(1). The question becomes

       whether any exception applies.


[28]   The evidence that Lockhart seeks to admit is not “offered to prove that

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

       physical evidence.” Evid. Rule 412(b)(1)(A). Lockhart admitted to having

       sexual intercourse with M.S. While the presence of other male DNA could be

       relevant to police investigators looking for an additional assailant, it has

       absolutely no bearing on whether Lockhart raped M.S., and therefore would

       not be probative of any issue in this case.



       Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016   Page 13 of 14
[29]   Lockhart’s argument would be stronger if the State had used M.S.’s physical

       injuries to prove that Lockhart acted forcibly against her will. Then Lockhart

       might be able to posit that those injuries came from another source. But that

       was not the State’s theory of the case; the State argued that M.S. was

       unconscious and incapable of providing consent. The jury found this fact to be

       proved beyond a reasonable doubt, and so whether someone else physically

       injured M.S. would, again, not be probative of any issue in Lockhart’s case.


[30]   In sum, the State had a race-neutral justification for exercising its peremptory

       challenge, and the trial court did not make any of the evidentiary errors that

       Lockhart alleges.


[31]   The judgment of the trial court is affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1507-CR-895 | May 25, 2016   Page 14 of 14
