MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                      Mar 21 2017, 8:53 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jill A. Gonzalez                                         Curtis T. Hill, Jr.
Public Defender’s Office                                 Attorney General of Indiana
Muncie, Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Aaron J. King,                                           March 21, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A02-1610-CR-2477
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable John M. Feick,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         18C04-1305-FA-3



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A02-1610-CR-2477 | March 21, 2017   Page 1 of 8
                                                Case Summary
[1]   A jury found Aaron J. King guilty of rape, criminal deviate conduct, criminal

      confinement, and strangulation. On appeal, King argues that fundamental

      error occurred when the prosecutor talked with the victim during a break in her

      testimony and that his strangulation conviction is not supported by sufficient

      evidence. We affirm.


                                   Facts and Procedural History1
[2]   The facts most favorable to the convictions are that King and K.N. dated in

      high school and briefly during college, but they had only occasional contact for

      several years before the evening of April 21, 2013, when King called K.N.

      because he and his fiancée were having relationship difficulties. K.N. picked up

      King and drove them back to her apartment. They talked for several hours and

      fell asleep on her bed. In the morning, K.N. dropped off King at another

      apartment complex.


[3]   Two days later, King arrived unexpectedly at K.N.’s apartment and knocked on

      the door. K.N., who had been sleeping, answered the door and invited him in.

      They went into her bedroom and rested until K.N. had to get ready for a

      graduate school class. King said that he was going out to get a breakfast




      1
        King’s brief contains numerous grammatical and clerical errors. See, e.g., Appellant’s Br. at 6 (“The two of
      them had went [sic] back to [the victim’s] room ….”); id. (“The Defendant then had sex with the Defendant
      [sic] ….”); id. at 13 (“In addressing a claim of inefficiency [sic] of the evidence ….”). We advise counsel to
      proofread more carefully in the future.

      Court of Appeals of Indiana | Memorandum Decision 18A02-1610-CR-2477 | March 21, 2017               Page 2 of 8
      sandwich, but instead he bought duct tape at a hardware store and returned to

      K.N.’s apartment. As K.N. opened the door to leave for class, King shut the

      door, carried her into her bedroom, and pushed her onto the bed. K.N. asked

      King what he was doing. He told her to shut up, pulled down her pants, and

      raped her. At one point, he forced her to perform fellatio. He also put his

      hands on her neck several times and squeezed so hard that “[e]verything was

      going black” and she “was gasping for air.” Tr. Vol. 4 at 86. During the

      assault, K.N. yelled and hit the walls, so King put duct tape over her mouth and

      bound her wrists together. He ultimately removed the duct tape, apologized to

      K.N., and left the apartment. K.N. called 911. She was taken to the hospital

      for examination and was kept overnight due to swelling in her throat.


[4]   The State charged King with class A felony rape, class B felony criminal deviate

      conduct, class D felony criminal confinement, and class D felony strangulation.

      A jury found him guilty as charged, and the trial court sentenced him to forty

      years. King now appeals. Additional facts will be provided as necessary.


                                     Discussion and Decision

      Section 1 – King has failed to establish that fundamental error
      occurred when the prosecutor talked with K.N. during a break
                             in her testimony.
[5]   The prosecutor called K.N. as a witness during the State’s case in chief. She

      was then cross-examined by King’s counsel. During cross examination, the

      prosecutor asked if K.N. could take a break. The trial court called a recess.

      Before the jury was brought in, King’s counsel expressed displeasure with the

      Court of Appeals of Indiana | Memorandum Decision 18A02-1610-CR-2477 | March 21, 2017   Page 3 of 8
prosecutor “in the middle of [her] cross [taking K.N.] out in the hallway for ten

minutes, fifteen minutes[.]” Tr. Vol. 4 at 152. The court asked King’s counsel

if she wanted to make a record “before the jury comes in” regarding whether

the prosecutor told K.N. what to say. Id. King’s counsel replied that she did

not. The jury was brought in, and K.N. took the stand. The following

exchange occurred between King’s counsel and K.N.:

        Q [K.N.], we just took a break because you asked for a break,
        correct?

        A Yes.

        Q You were out in the hallway for about ten, fifteen minutes?

        A Yes.

        Q Were you talking with [the prosecutor] and his staff?

        A Yes.

        Q Were you asking him about what to do about my questions?

        A I used the restroom, and we did converse.

        Q Converse about what to say about my questions? Don’t look
        him—

        A Not—

        Q -- Answer the question.

        A Not specifically. Just because you are coming off very
        aggressively. So, I just was asking him if that was normal, and
        how to respond.
Court of Appeals of Indiana | Memorandum Decision 18A02-1610-CR-2477 | March 21, 2017   Page 4 of 8
              Q Okay. So, you were asking him how to respond to my
              questions?

              A If I should be as aggressive back to you as you are to me.

              Q You can be as aggressive to me as you want to be. I don't care.

              [PROSECUTOR]: Objection. If she’s going to make smart
              comments.

              THE COURT: None of this. None of this. None of this.

              [KING’S COUNSEL]: I withdraw. I’m sorry, Judge. I
              withdraw it.


      Id. at 153-54.


[6]   On appeal, King argues that the trial court should have declared a mistrial

      instead of allowing K.N. “to continue to testify after she was coached by the

      prosecution during a recess in the middle of her cross examination.”

      Appellant’s Br. at 10. King claims that the “[u]nethical coaching” was

      prosecutorial misconduct. Id. at 12. King failed to request either an

      admonishment or a mistrial, which results in waiver. Emerson v. State, 952

      N.E.2d 832, 836 (Ind. Ct. App. 2011), trans. denied. “Where a claim of

      prosecutorial misconduct has not been properly preserved, our standard of

      review is different from that of a properly preserved claim.” Id. “More

      specifically, the defendant must establish not only the grounds for the

      misconduct but also the additional grounds for fundamental error.

      Fundamental error is an extremely narrow exception that allows a defendant to


      Court of Appeals of Indiana | Memorandum Decision 18A02-1610-CR-2477 | March 21, 2017   Page 5 of 8
      avoid waiver of an issue.” Id. (citation omitted). “It is error that makes ‘a fair

      trial impossible or constitute[s] clearly blatant violations of basic and

      elementary principles of due process … present[ing] an undeniable and

      substantial potential for harm.’” Id. (quoting Benson v. State, 762 N.E.2d 748,

      756 (Ind. 2002)).


[7]   King has failed to establish that the prosecutor’s actions made a fair trial

      impossible. He cites no authority for the proposition that a party may not

      request a break to calm a flustered witness, and the record indicates that the

      prosecutor and K.N. discussed only the tone, and not the content, of her

      testimony going forward. Furthermore, K.N. was cross-examined about the

      conversation in front of the jury. In sum, King has failed to establish

      fundamental error.


         Section 2 – King’s strangulation conviction is supported by
                             sufficient evidence.
[8]   King also contends that his strangulation conviction is not supported by

      sufficient evidence. In reviewing an insufficient evidence claim, we neither

      reweigh evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495, 500

      (Ind. 2015). “Rather, if the testimony believed by the trier of fact is enough to

      support the verdict, then the reviewing court will not disturb it.” Id.


[9]   The State alleged that King committed strangulation when he, “in a rude,

      insolent or angry manner, did knowingly or intentionally apply pressure to the

      throat or neck of [K.N.] or obstruct the nose or mouth of [K.N.] in a manner


      Court of Appeals of Indiana | Memorandum Decision 18A02-1610-CR-2477 | March 21, 2017   Page 6 of 8
       that impeded normal breathing or blood circulation of [K.N.]” Appellant’s

       App. Vol. 2 at 27. K.N. testified that King choked her with his hands. King

       points to testimony by two nurses that purportedly establishes that marks on

       K.N.’s neck were “made by an object and not hands” and argues that “[t]here is

       absence of circumstantial evidence that the marks on [K.N.’s] neck were made

       by Aaron King’s hands.” Appellant’s Br. at 14-15. At trial, King himself

       testified that he put his hands around K.N.’s neck and choked her during what

       he claimed was rough consensual sex. The jurors saw photographs of the

       marks on K.N.’s neck and were free to disbelieve the nurses’ testimony and

       believe K.N.’s testimony that King choked her with his hands during

       nonconsensual sex.2


[10]   King also claims that there is no evidence that he knowingly or intentionally

       applied pressure to K.N.’s throat or impeded her normal breathing. K.N.

       testified that “[e]verything was going black” and that she “was gasping for air”

       and “thought that [she] was going to die[.]” Tr. Vol. 4 at 86. Also, she was

       kept in the hospital overnight due to swelling in her throat. King’s argument is

       an invitation to reweigh evidence and assess witness credibility, which we may

       not do. The testimony believed by the jury is sufficient to support King’s

       strangulation conviction, and therefore we affirm.




       2
           King’s incredible dubiosity claim is meritless.


       Court of Appeals of Indiana | Memorandum Decision 18A02-1610-CR-2477 | March 21, 2017   Page 7 of 8
[11]   Affirmed.


       Baker, J., and Barnes, J., concur




       Court of Appeals of Indiana | Memorandum Decision 18A02-1610-CR-2477 | March 21, 2017   Page 8 of 8
