MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
                                                                   Jun 30 2017, 8:56 am
court except for the purpose of establishing
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
Thomas F. Little                                        Curtis T. Hill, Jr.
Power, Little, Little & Little                          Attorney General of Indiana
Frankfort, Indiana
                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James O. Jones,                                         June 30, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        12A02-1606-CR-1502
        v.                                              Appeal from the Clinton Circuit
                                                        Court
State of Indiana,                                       The Honorable Bradley K. Mohler,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        12C01-1507-F1-669



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1502| June 30, 2017         Page 1 of 16
                                           Case Summary
[1]   After a jury trial, James O. Jones (“Jones”) was convicted of Child Molesting,

      as a Level 4 felony,1 and the trial court found him to be a sexually violent

      predator.2 He was sentenced to ten years’ imprisonment. He now appeals.


[2]   We affirm.



                                                   Issues
[3]   Jones raises several issues for our review. We restate these as:

                    I.     Whether the trial court abused its discretion when it:


                                a. Admitted into evidence statements made by Jones
                                   during an interview with a police detective because
                                   the statements were coerced;


                                b. Limited the scope of Jones’s inquiry during cross-
                                   examination of a witness for the State;


                                c. Allowed a police detective to testify as to the
                                   content of a statement made by Jones that was
                                   captured on a recording while the detective was
                                   outside the interview room; and




      1
          Ind. Code § 35-42-4-3(b).
      2
          I.C. § 35-38-1-7.5.


      Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1502| June 30, 2017   Page 2 of 16
               II.    Whether Jones’s sentence is inappropriate.


                            Facts and Procedural History
[4]   In July 2015, Jones shared a home with his then-fiancée, Bridgett Painter

      (“Painter”), in Frankfort. Jones and Painter lived in the home with several of

      Painter’s children from prior relationships, and a child Jones and Painter shared

      together. Among the children was K.B., who was born to Painter before her

      relationship with Jones. Jones and Painter’s relationship began shortly after

      K.B.’s birth, and K.B. called Jones “Daddy.”


[5]   On July 17, 2015, Painter took K.B. and one other child with her to go grocery

      shopping. Jones stayed home. During the shopping trip, K.B. became

      impatient. Painter met Jones’s mother at the grocery store, and Jones’s mother

      took K.B. back to the home Jones and Painter shared, leaving K.B. with Jones.


[6]   A little while later, Painter returned home from grocery shopping. Painter

      found both the front and back doors to the home locked, which was very

      unusual when Jones was home. When she entered the home, she heard K.B.

      screaming, “Daddy stop!” (Tr. at 135.) Painter first went to K.B.’s room, but

      did not find the girl there and continued to search the home.


[7]   Painter went to the bedroom she and Jones shared, and found the door closed

      and blocked from the inside. Eventually, whatever was blocking the door was

      moved and Painter could open the door. When she did, she saw K.B. bent over




      Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1502| June 30, 2017   Page 3 of 16
       the bed with her pants pulled down around her legs and her bare bottom

       exposed. Jones was standing over K.B. with his hand on K.B.’s bottom.


[8]    Painter removed K.B. from the room and asked Jones for an explanation for his

       conduct. Jones stated that he was just tickling K.B. Painter knew that K.B. did

       not like when Jones tickled her, but she had never seen Jones tickle K.B. in that

       manner. Painter subsequently contacted police and took K.B. to a hospital for

       a doctor’s exam.


[9]    During the ensuing police investigation, Detective Hickson of the Frankfort

       City Police Department asked Jones to come to the police station for an

       interview. During the interview, Jones signed a written waiver of his Miranda

       rights and answered questions posed by Detective Hickson. The interview,

       which took approximately 1 ¾ hours, included Jones admitting to certain

       conduct with K.B. Before the interview concluded, Jones wrote an apology

       letter to K.B. After the interview ended, Jones was arrested.


[10]   On July 23, 2015, Jones was charged with one count of Child Molesting, as a

       Level 1 felony,3 and one count of Child Molesting, as a Level 4 felony.


[11]   On April 11, 2016, Jones filed a motion to suppress evidence, seeking to

       suppress his statements during his interview with Detective Hickson and any




       3
           I.C. § 35-42-4-3(a).


       Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1502| June 30, 2017   Page 4 of 16
       evidence obtained therefrom. On the same day, the trial court denied the

       motion to suppress.


[12]   On April 12 and 13, 2016, a jury trial was conducted. During the trial, just

       prior to Detective Hickson’s testimony, Jones moved to exclude any evidence

       related to his pre-trial motion to suppress. The trial court noted Jones’s

       objection and overruled it.


[13]   After the close of the State’s evidence, the State moved to dismiss the count of

       Child Molesting, as a Level 1 felony. The remaining charge of Child

       Molesting, as a Level 4 felony, was submitted to the jury, which found Jones

       guilty as charged.


[14]   On June 7, 2016, the trial court entered judgment of conviction against Jones

       and conducted a sentencing hearing. At the hearing’s conclusion, the trial court

       adjudicated Jones as a sexually violent predator and sentenced him to ten years

       imprisonment, with seven years executed in the Indiana Department of

       Correction and three years suspended to probation.


[15]   This appeal ensued.




       Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1502| June 30, 2017   Page 5 of 16
                                 Discussion and Decision
                                        Evidentiary Matters
                                          Standard of Review
[16]   Jones challenges numerous of the trial court’s rulings on the admissibility of

       evidence and the conduct of cross-examination. Decisions on evidentiary

       matters and the conduct of examination of witnesses by counsel are left to the

       sound discretion of the trial court. We will reverse only when there has been an

       abuse of discretion, which occurs when the trial court’s decision is clearly

       against the logic and effect of the facts and circumstances before it, or when the

       court errs on a legal matter. Wilson v. State, 973 N.E.2d 1211, 1213-14 (Ind. Ct.

       App. 2012). Even when the trial court errs, we will not reverse the court’s

       decision when the error was harmless, that is, when the error did not prejudice

       the substantial rights of a party. Ind. Trial Rule 61; Wilson, 973 N.E.2d at 1214.


                                                  Coercion
[17]   Jones’s first challenge to the trial court’s evidentiary rulings contends that the

       trial court erred when it admitted into evidence statements Jones made during a

       recorded police interview. Jones contends that Detective Hickson, who

       conducted the interview, made false and misleading statements that overbore

       Jones’s will and resulted in Jones making coerced admissions of criminal

       conduct toward K.B. Jones frames this claim as a challenge to the trial court’s

       denial of his motion to suppress evidence. However, because Jones appeals

       from a judgment and not directly from an interlocutory order upon a motion to

       Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1502| June 30, 2017   Page 6 of 16
       suppress, an appeal from the motion to suppress is not viable. Clark v. State, 994

       N.E.2d 252, 259 (Ind. 2013). Accordingly, we review his challenge under the

       same standard as any challenge to the admission of evidence at trial, and apply

       an abuse of discretion standard. Id.


[18]   Whether to admit a defendant’s statements into evidence is a matter within the

       trial court’s discretion in light of the totality of the circumstances before it.

       Miller v. State, 770 N.E.2d 763, 767 (Ind. 2002). Upon appeal, we do not

       reweigh evidence, “‘but instead examine the record for substantial, probative

       evidence of voluntariness.’” Id. (quoting Schmitt v. State, 730 N.E.2d 147, 148

       (Ind. 2000)). The State must prove beyond a reasonable doubt that the

       defendant’s waiver of his rights was voluntary, and that his confession was

       voluntarily given. Id. (citing Schmitt, 730 N.E.2d at 148). When reviewing a

       trial court’s ruling that a statement was made voluntarily, numerous factors

       may be considered as within the totality of the circumstances. Such factors

       include whether the statement was the result of police coercion; the length,

       location, and continuity of a police interrogation; and the defendant’s maturity,

       education, physical condition, and mental health. Id. (citing numerous

       decisions of the United States Supreme Court and Indiana courts).


[19]   “We must determine, in light of the totality of the circumstances, whether the

       police conduct overbore the defendant’s will, thus rendering his statement

       involuntary.” Id. This inquiry “focuses on the entire interrogation, not on any

       single act by police or condition of the suspect.” Washington v. State, 808

       N.E.2d 617, 622 (Ind. 2004). Thus, whether police engaged in deception is

       Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1502| June 30, 2017   Page 7 of 16
       among the factors that may be considered in evaluating whether a statement

       was coerced or otherwise offered involuntarily, but will not necessarily be

       dispositive. Miller, 770 N.E.2d 767 n. 5. Moreover, “if the police have a good

       faith basis for their technical falsehood, then their action will not be deemed

       deceptive.” Id. A defendant’s statement may also be the product of coercion,

       and thus inadmissible, if it is obtained through promise of immunity or

       mitigation of punishment. Massey v. State, 473 N.E.2d 146, 148 (Ind. 1985).

       But “vague and indefinite statements by the police that it would be in a

       defendant’s best interest if he cooperated do not render a subsequent confession

       inadmissible.” Malloc v. State, 980 N.E.2d 887, 902 (Ind. Ct. App. 2012), trans.

       denied.


[20]   Here, Jones draws our attention to statements by Detective Hickson that he

       wanted to help Jones, and that helping Jones would require that Jones be open

       concerning his actions toward K.B. Jones also notes statements Detective

       Hickson made concerning the confidentiality of the contents of any report he

       might make concerning the interview with Jones. Jones further contends that

       Detective Hickson was deceptive with respect to the results of a medical

       examination performed upon K.B. at the hospital on the day of the charged

       conduct. Taking these together, Jones argues that his will was overborne and

       his statement involuntary, and that the trial court abused its discretion when it

       concluded otherwise and admitted his statements into evidence.


[21]   A review of the video recording of the interview, Jones’s statements from which

       are the subject of this appeal, leads us to conclude that the trial court did not

       Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1502| June 30, 2017   Page 8 of 16
       abuse its discretion. The interview commenced with Jones reviewing and

       signing a written waiver of his Miranda rights, and the interview ran less than

       two hours. Jones acknowledged at the beginning of the interview that he

       understood he was present to discuss “allegations” against him. On numerous

       occasions during the interview, Detective Hickson stated that he wished to help

       Jones and that the report on the interview would not be disclosed to the

       public—but Detective Hickson was also clear that he would submit the report

       to the prosecutor and the court, and that he could not control anything past

       that. In addition, at one point Jones stated that he “blacked out” during a

       portion of his conduct with K.B., and Detective Hickson stated that he did not

       believe the “black out” claim, and that a court would not find it credible. This

       claim came after Jones had admitted to touching K.B.’s bare buttocks. Thus, it

       was clear from the beginning that the purpose of the interview was to facilitate a

       criminal investigation, and Detective Hickson made no concrete promises of

       leniency in prosecution or sentencing.


[22]   With respect to Detective Hickson’s statements concerning the results of a

       medical examination of K.B., Detective Hickson advanced a claim of injury to

       K.B.’s anus as a stratagem to induce Jones to speak about the period during

       which he claimed to have “blacked out.” Jones claimed that if he had

       penetrated K.B.’s anus, he did not intend to do so and did not remember doing

       so because of the “black out,” and Detective Hickson told Jones that medical

       reports indicated that there had been injury to K.B. However, by that time in

       the interview, Jones had already admitted to the criminal conduct toward K.B.


       Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1502| June 30, 2017   Page 9 of 16
       And, as the State notes in its brief, Jones made numerous statements to himself

       while Detective Hickson was not present in the interview room indicating that

       Jones understood the nature of the interview, including statements recognizing

       that he would be walking out of the room “in handcuffs.”


[23]   When viewed in light of the totality of the circumstances, we cannot conclude

       that the trial court abused its discretion when it determined that Jones’s

       statement was voluntarily given and admitted Jones’s statements into evidence

       over his objection.


                                          Cross-Examination
[24]   Jones next argues that the trial court abused its discretion in limiting the scope

       of cross-examination. The Sixth Amendment to the United States Constitution

       and Article I, section 13 of the Indiana Constitution guarantee the right to

       cross-examine witnesses. Strunk v. State, 44 N.E.3d 1, 4 (Ind. Ct. App. 2015),

       trans. denied. Governing the conduct of cross-examination is within the trial

       court’s discretion, and only a total denial of cross-examination “‘will result in

       an error of constitutional proportion.’” Id. (quoting Stonebraker v. State, 505

       N.E.2d 55, 58 (Ind. 1987)).


[25]   Generally, “cross-examination must lie within the scope of the direct

       examination.” Nasser v. State, 646 N.E.2d 673, 681 (Ind. Ct. App. 1995).

       “‘Anything less than a total denial is viewed as a regulation of the scope of

       cross-examination by the trial court, and will be reviewed for an abuse of

       discretion.’” Id. A trial court abuses its discretion in governing cross-

       Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1502| June 30, 2017   Page 10 of 16
       examination when it imposes a restriction that “relates to a matter which

       substantially affects the defendant’s rights.” Id. On appeal, a defendant must

       demonstrate how he was prejudiced by the trial court’s restriction of the scope

       of cross-examination. Id. We will not reverse the trial court if the defendant

       fails to identify prejudice from the restriction of cross-examination. Ingram v.

       State, 547 N.E.2d 823, 828 (Ind. 1989).


[26]   Jones complains here that the trial court’s limitation of the scope of cross-

       examination was overly restrictive, and that his rights were prejudiced as a

       result. Specifically, Jones contends that the trial court erred when, on hearsay

       grounds, it did not permit him to extend beyond the bounds of the evidence

       introduced by the State in its direct examination of Detective Hickson

       concerning his interrogation of Jones. Jones argues that because the trial court

       did not require the introduction of the complete recording of the interrogation,

       the only way he could have introduced evidence from the interrogation for

       purposes of completeness was by testifying himself—and this, in turn,

       implicated his right against self-incrimination as set forth in the Fifth

       Amendment to the United States Constitution.


[27]   We disagree with Jones. The trial court’s limitation of cross-examination to the

       matters in the State’s direct examination of Detective Hickson comports with

       the proper conduct of cross-examination: “cross-examination must lie within the

       scope of the direct examination.” Nasser, 646 N.E.2d at 681 (emphasis added). But

       the trial court’s compliance with this is precisely what Jones complains of;

       indeed, Jones’s brief characterizes the trial court’s purported error thusly: “The

       Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1502| June 30, 2017   Page 11 of 16
       Trial Court unlawfully limited Jones’s ability to cross-examine Detective

       Hickson by placing a restriction for addressing issues, questions and topics only

       raised through the State’s direct examination of Detective Hickson.”

       (Appellant’s Br. at 16.) There is, then, no abuse of discretion to be found with

       the trial court’s adherence to the legal requirements of cross-examination.4


[28]   With respect to Jones’s concerns with completeness, we note that there were

       other options available to Jones that would have satisfied his concern with

       completeness. Jones could have sought to introduce the entirety of the recorded

       interview into evidence through Detective Hickson’s testimony, but did not do

       so. Jones also could have called Detective Hickson as a witness for the defense

       and conducted a direct examination of Detective Hickson to inquire about

       other portions of the interrogation which were not part of the State’s direct

       examination. Jones did not do this, either.


[29]   Having let these opportunities go by, Jones cannot now obtain relief by

       complaining that the only option the trial court afforded him to fill in gaps in

       Detective Hickson’s testimony was to waive his Fifth Amendment right against

       self-incrimination by testifying at trial. We accordingly find no reversible error

       on this issue.




       4
        Jones complains that the State premised its objections to specific matters Jones raised based upon a
       misapplication of Evidence Rule 801, pertaining to matters that are or are not hearsay. Because we find no
       abuse of discretion in the trial court’s limitation of the scope of cross-examination, we do not reach the
       hearsay issues Jones raises.

       Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1502| June 30, 2017            Page 12 of 16
                                  Statements Made on Camera
[30]   We turn to Jones’s final challenge to the trial court’s evidentiary rulings, in

       which he contends that the trial court abused its discretion when it permitted

       Detective Hickson to testify as to statements Jones made that were recorded by

       a video camera in the interrogation room while Detective Hickson was not

       personally present in the room. Specifically, Jones contends that Detective

       Hickson’s statements were his opinions on what Jones had said, and that the

       offering of an opinion on this matter is reversible error.


[31]   In making his argument, Jones draws our attention to a single case, Williams v.

       State, 43 N.E.3d 578 (Ind. 2015). In Williams, testimony was elicited from a

       police detective who observed a controlled buy of narcotics by means of a

       camera recording. During the trial, the officer testified, “there’s zero doubt in

       my mind that that was a transaction for cocaine.” Id. at 580. Reviewing

       Williams’s conviction, the Indiana Supreme Court concluded that the trial

       court had abused its discretion when it admitted the officer’s statement into

       evidence over an objection based upon Evidence Rule 704(b). That rule

       provides for a “bright-line exception” as to the admissibility of opinion evidence

       by barring testimony as to opinions concerning the guilt or innocence of a

       defendant. Id. at 581.


[32]   Williams is readily distinguishable from Jones’s case. In Williams, the

       conviction was reversed because the trial court admitted opinion evidence on

       the ultimate question of guilt, and not merely on an element of the offense. Id.


       Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1502| June 30, 2017   Page 13 of 16
       at 582. Here, however, Detective Hickson did not voice his own opinion on

       any question of ultimate fact. Rather, he stated what he thought Jones had said

       based upon watching a video recording of the interrogation room. Detective

       Hickson’s statements do not amount to opinion evidence on innocence or guilt

       subject to exclusion under Evidence Rule 704(b).5 We accordingly conclude

       that the trial court did not abuse its discretion when it admitted Detective

       Hickson’s statements over Jones’s contention that the testimony was

       inadmissible opinion evidence.


                                Inappropriateness of Sentence
[33]   We turn now to Jones’s final contention on appeal, that the sentence the trial

       court imposed was inappropriate. The authority granted to this Court by

       Article 7, section 6 of the Indiana Constitution permitting appellate review and

       revision of criminal sentences is implemented through Appellate Rule 7(B),

       which provides: “The Court may revise a sentence authorized by statute if, after

       due consideration of the trial court’s decision, the Court finds that the sentence

       is inappropriate in light of the nature of the offense and the character of the

       offender.” Under this rule, and as interpreted by case law, appellate courts may

       revise sentences after due consideration of the trial court’s decision, if the

       sentence is found to be inappropriate in light of the nature of the offense and the




       5
         To the extent Detective Hickson’s testimony as to Jones’s statements that Detective Hickson heard only
       from a recording, and not while he was in the room with Jones, might have been inadmissible as hearsay, we
       note that Jones does not raise that question on appeal.

       Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1502| June 30, 2017          Page 14 of 16
       character of the offender. Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind.

       2008); Serino v. State, 798 N.E.2d 852, 856-57 (Ind. 2003). The principal role of

       such review is to attempt to leaven the outliers. Cardwell, 895 N.E.2d at 1225.


[34]   Jones was convicted of Child Molesting, as a Level 4 felony. The sentencing

       range for a Level 4 felony runs from two to twelve years imprisonment, with an

       advisory term of six years. Here, the trial court sentenced Jones to ten years

       imprisonment, with seven years executed in the Indiana Department of

       Correction and three years suspended to probation.


[35]   Looking first to the nature of Jones’s offense, Jones removed K.B.’s pants and

       touched her bare buttocks with the purpose of arousing his own sexual desires.

       K.B. was seven years old at the time, and viewed Jones as her father, including

       calling him “Daddy.” Jones was, then, in a position of trust vis-à-vis K.B. K.B.

       has required counseling to address molestation issues, a continuation of

       counseling treatment K.B. was receiving to address post-traumatic stress

       associated with the death of her biological father. K.B.’s behavior changed after

       the molestation incident, so that she would get angry, strike herself, and wish

       she were dead; K.B. would “shut[] down” when Jones’s name was mentioned.

       (Amended App’x Vol. 2 at 32.) As a result of the instant conviction, the trial

       court adjudicated Jones to be a sexually violent predator.


[36]   Looking to Jones’s character, we note that Jones has a single prior conviction

       from approximately sixteen years before the current offense; he was, in 2000,

       convicted of Sexual Battery, and has been required to attend sex offender


       Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1502| June 30, 2017   Page 15 of 16
       counseling and to register as a sex offender. Jones has three children from prior

       relationships, and he paid child support for these children. Prior to this offense,

       Jones held stable employment from 1998 through 2016, with interruptions due

       to arrests. Coworkers at Jones’s workplace spoke highly of him, and his boss

       reported that he would rehire Jones. Jones had a spotty employment history

       before 1998, and was fired from two jobs after allegations of having engaged in

       inappropriate sexual conduct or sexual harassment at work. In 1995, Jones was

       discharged from enlistment in the United States Navy due to psychiatric health

       problems, and has displayed suicidal ideation at various points in the past,

       including a threat to commit suicide several months before his trial in this case.

       Jones did not, however, report undergoing active treatment for his psychiatric

       diagnoses at the time of his offense, stating during his sentencing hearing that

       he believed the diagnosis to be “in error.” (Tr. Vol. 2 at 65.)


[37]   In light of the nature of Jones’s offense and his character, including his prior

       history of sexual misconduct, we cannot conclude that the sentence imposed by

       the trial court was inappropriate.



                                               Conclusion
[38]   The trial court’s evidentiary rulings do not constitute reversible error. Jones’s

       sentence is not inappropriate.


[39]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 12A02-1606-CR-1502| June 30, 2017   Page 16 of 16
