MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Apr 25 2019, 9:43 am
regarded as precedent or cited before any                                     CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
K. Aaron Heifner                                          Curtis T. Hill, Jr.
HEIFNER LAW INC.                                          Attorney General of Indiana
Anderson, Indiana
                                                          Matthew B. MacKenzie
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Erick W. Mack,                                            April 25, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1528
        v.                                                Appeal from the Madison Circuit
                                                          Court
State of Indiana,                                         The Honorable Thomas Newman, Jr.,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          48C03-1702-FA-381



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1528 | April 25, 2019                    Page 1 of 12
                                           Case Summary
[1]   Erick W. Mack (“Mack”) appeals his convictions of two counts of Child

      Molesting, one as a Class A felony and one as a Level 1 felony.1 We affirm.



                                                    Issues
[2]   Mack presents three consolidated and restated issues for our review:


                 I.       Whether sufficient evidence supports his convictions;


                 II.      Whether the trial court abused its discretion in granting the
                          jury’s request to have the victim’s testimony replayed; and


                 III.     Whether Mack was entitled to a mistrial.


                                Facts and Procedural History
[3]   On February 10, 2017, Mack was charged with molesting M.A., the teenage

      daughter of one of Mack’s closest friends. The State alleged that Mack had

      engaged M.A. in sexual activity several years earlier, when she was age

      thirteen. Mack was tried before a jury on May 1, 2018 and convicted as

      charged. On May 18, 2018, Mack was sentenced to two concurrent terms of

      twenty years imprisonment. He now appeals.




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


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1528 | April 25, 2019   Page 2 of 12
                                   Discussion and Decision
                                   Sufficiency of the Evidence
[4]   To convict Mack of Child Molesting, as charged, the State had to prove beyond

      a reasonable doubt that he, being twenty-one years of age or older, knowingly

      or intentionally performed or submitted to sexual intercourse or other sexual

      conduct with M.A., a child under fourteen years of age.2 I.C. § 35-42-4-3; App.

      Vol. II, pg. 75. The State presented no evidence of sexual intercourse between

      Mack and M.A. Pursuant to Indiana Code Section 35-31.5-2-221.5, “other

      sexual conduct” is an act involving a sex organ of one person and the mouth or

      anus of another person or penetration of the sex organ or anus of a person by an

      object.


[5]   Upon a challenge to the sufficiency of the evidence to support a conviction, we

      consider only the probative evidence and reasonable inferences supporting the

      verdict. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We do not reweigh

      the evidence or judge the credibility of witnesses. Id. An appellate court must

      affirm “if the probative evidence and reasonable inferences drawn from the




      2
        The State alleged that Mack committed an offense on or between August 26, 2013 and June 13, 2014 and
      committed an offense on or between July 1, 2014 and August 25, 2014, apparently to reflect the change of
      category of offense, effective July 1, 2014, from a Class A felony to a Level 1 felony. Generally, time is not
      of the essence in the crime of child molesting. Gaby v. State, 949 N.E.2d 870, 876 (Ind. Ct. App. 2011). The
      exact date becomes important only in limited circumstances, including when the victim’s age at the time of
      the offense falls at or near the dividing line between classes of felonies. Id. M.A. turned fourteen on August
      26, 2014. It was incumbent upon the State to prove that the offenses occurred before she reached age
      fourteen.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1528 | April 25, 2019                     Page 3 of 12
      evidence could have allowed a reasonable trier of fact to find the defendant

      guilty beyond a reasonable doubt.” Id.


[6]   M.A. testified regarding the allegations as follows. She and Mack were at a

      family bonfire and were left alone after her parents went to bed. Mack, who

      had been acting “flirty” and “touchy” with her, told her “he’s ready to see it

      now.” (Tr. Vol. II, pgs. 63, 68). M.A. took down her pants and underwear and

      Mack “touch[ed] between [her] legs with his finger … for a little bit” before

      they walked around the corner of the house and Mack “did oral on [her].” Id.

      at 68-69. M.A. specified that this meant Mack “put his tongue between [her]

      legs.” Id. at 70. They proceeded into the house and sat on a love seat, where

      M.A. “performed a hand job on [Mack].” Id. At a separate time, Mack was

      driving his vehicle and M.A. was a passenger when Mack suggested that M.A.

      could get naked. M.A. took down her jeans and Mack placed his “finger into

      [her] vagina multiple times.” Id. at 74. M.A. testified that she was thirteen

      years old when these events occurred.


[7]   M.A.’s mother also testified that M.A. had been thirteen when she confronted

      Mack about her suspicions as to his interest in her daughter and Mack stopped

      visiting the family. M.A.’s mother further testified that, after the police

      investigation began, Mack had called her to say he was “sorry that it happened”

      and “sorry for the whole mess that happened to our family.” Id. at 139.


[8]   Mack asks that we discard M.A.’s testimony under the incredible dubiosity rule

      because of perceived discrepancies between her investigative interview, pretrial


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1528 | April 25, 2019   Page 4 of 12
      deposition, and trial testimony. The “incredible dubiosity rule,” which

      impinges on the jury’s responsibility to judge the credibility of witnesses, is of

      limited scope. Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015). “First, the

      application of this rule has been restricted to cases where there is a single

      testifying witness.” Id. at 757. “The second factor is whether the witness’

      testimony is inherently improbable, contradictory, or coerced, resulting in the

      testimony being incredibly dubious.” Id. at 758. Finally, “[i]n a case where

      there is circumstantial evidence of an individual’s guilt, reliance on the

      incredible dubiosity rule is misplaced.” Id. at 759.


[9]   Here, M.A. testified unequivocally that, when she was thirteen years old, Mack

      had used his mouth and fingers to touch her vagina. M.A.’s mother provided

      some corroborative testimony that she voiced suspicion and Mack never visited

      the family thereafter (although they had been extremely close in the past) and

      Mack called to offer an apology of sorts. This was not a case of a sole witness

      offering dubious testimony; M.A.’s earlier lack of specificity or some

      discrepancy between pretrial statements and trial testimony is not a basis for

      application of the incredible dubiosity rule. See Corbett v. State, 764 N.E.2d 622,

      626 (Ind. 2002) (recognizing that inconsistencies between a police statement

      and trial testimony does not equate to uncorroborated “testimony inherently

      contradictory as a result of coercion”). Sufficient evidence supports Mack’s

      convictions.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1528 | April 25, 2019   Page 5 of 12
                         Replay of M.A.’s Testimony to the Jury
[10]   During deliberations, the jury foreman advised the trial court that the jury

       needed clarification regarding M.A.’s testimony and the time frame of the

       offenses. The trial court advised that, if the jury was requesting to rehear

       M.A.’s testimony, it would be replayed in its entirety and the foreman

       responded that the replay “will help us.” (Tr. Vol. II. Pg. 232.) Mack now

       argues that the replay of testimony was prejudicial to him because the replay

       included bench conferences and the jury was unable to examine M.A.’s

       demeanor.


[11]   The State responds – and our examination of the transcript leads us to agree –

       that the record does not support Mack’s assertion that bench conferences were

       included in the replay. As for the contention that the jurors were unable to

       assess M.A.’s demeanor during the replay, we agree with Mack that an audio

       replay is not equivalent to live testimony. Nonetheless, Indiana Code Section

       34-36-1-6 requires a trial court to replay testimony when the jury expresses

       disagreement as to any part of the testimony and, even when the statute is not

       triggered, a court has discretion to replay testimony. Parks v. State, 921 N.E.2d

       826, 831 (Ind. Ct. App. 2010), trans. denied. Mack’s cursory claim of prejudice

       falls short of demonstrating that the trial court abused its discretion.


                                                    Mistrial
[12]   A mistrial is an extreme remedy appropriate only when other remedial

       measures are insufficient to rectify the situation. Mickens v. State, 742 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1528 | April 25, 2019   Page 6 of 12
       927, 929 (Ind. 2001). A trial judge has discretion in determining whether to

       grant a mistrial and his or her decision is afforded great deference because the

       trial judge ‘“is in the best position to gauge the surrounding circumstances of an

       event and its impact on the jury.”’ Id. (quoting Gregory v. State, 540 N.E.2d 585,

       589 (Ind. 1989)). To prevail on appeal from the denial of a motion for mistrial,

       an appellant must establish that the questioned conduct ‘“was so prejudicial

       and inflammatory that he was placed in a position of grave peril to which he

       should not have been subjected.”’ Id. The gravity of the peril is determined by

       consideration of the misconduct’s probable persuasive effect on the jury’s

       decision, rather than the impropriety of the conduct. Id.


[13]   Mack first moved for a mistrial before trial commenced, when he learned that

       the State would be introducing photographs relevant to establishing a timeline.

       His second motion for a mistrial was made during testimony by Detective Brett

       Wright (“Det. Wright”), with Mack claiming that the State had violated a

       motion in limine. We examine each incident in turn.


[14]   Photographs. Immediately prior to the commencement of trial, the State

       provided Mack with copies of photographs that the State had obtained from

       M.A.’s mother a few days earlier. The photographs were from April 26, 2014,

       purportedly representing the last time that M.A.’s mother saw Mack. Mack

       asked the trial court to exclude the photographs because it was “too late for

       discovery.” (Tr. Vol. II., pg. 20.) The trial court declined to exclude the

       evidence and denied Mack’s motion for a continuance. However, the trial

       court permitted Mack to conduct a pretrial deposition of M.A.’s mother.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1528 | April 25, 2019   Page 7 of 12
[15]   M.A.’s mother explained that she formerly believed the photographs had been

       deleted and was under this impression when deposed by Mack. However, she

       had recently found a camera with a “sim card.” Id. at 37. At some point, she

       had told a deputy prosecutor about finding the camera, but she did not

       immediately produce photographs from the camera memory card. Ultimately,

       M.A.’s mother had “gone to the CVS on Sunday [before trial]” and printed

       photographs. Id. at 39. When she acknowledged that she had, on the Thursday

       before trial, tried to produce photographs “at the courthouse” without success,

       Mack moved for a mistrial. Id. at 40. The State argued that Mack was not

       unduly prejudiced, having known of the possibility the photographs existed

       because it was mentioned in the probable cause affidavit. Mack responded that

       there was a “potential Brady violation.” Id. at 46. The trial court denied the

       motion for a mistrial.


[16]   “To prevail on a Brady claim, a defendant must establish: (1) that the

       prosecution suppressed evidence; (2) that the evidence was favorable to the

       defense; and (3) that the evidence was material to an issue at trial.” Minnick v.

       State, 698 N.E.2d 745, 755 (Ind. 1998) (citing Brady v. Maryland, 373 U.S. 87

       (1963)). Brady deals with suppression of material evidence favorable to the

       defense. Mack does not make a claim that material evidence favorable to him

       was suppressed. Rather, he claims that the State was obligated to produce the

       photographs to him “about a week or more prior to trial, at which time, the

       Defense could have reviewed the images and determined if they needed a

       continuance due to the newly acquired evidence” and he asserts that he was

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1528 | April 25, 2019   Page 8 of 12
       required to “alter [his] trial strategy on the day of trial.” Appellant’s Brief at 27.

       At bottom, Mack voiced a discovery complaint. The better practice would have

       been for the State to supplement its discovery responses immediately upon

       learning that photographic images would be available. But Mack does not

       explain how a continuance would have benefited him. He conducted an in-

       court, pretrial deposition of M.A.’s mother, and this revealed no grounds upon

       which to exclude the photographs. Mack was not placed in grave peril by the

       delay in disclosure to merit a mistrial.


[17]   Motion in Limine. Prior to the State’s elicitation of testimony from Det. Wright,

       Mack’s counsel stated that he wished to make an oral motion in limine.

       Defense counsel advised the court that he believed Det. Wright would offer

       testimony about his three attempts to contact Mack for an interview. On the

       first two occasions, Mack spoke with Det. Wright and stated that he was busy

       with work and travel plans. At the third attempted contact, defense counsel

       answered the call and told Det. Wright “[Mack]’s not going to talk to you.”

       (Tr. Vol. II, pg. 127.) The deputy prosecutor agreed with defense counsel that

       there should be no reference to Mack obtaining legal representation or to a

       refusal to talk. She described her intent to elicit questions to establish: Det.

       Wright called Mack (without telling him the reason for the call), Mack

       responded that he was very busy and “on the road,” on a third call, Det. Wright

       left a voicemail, and, ultimately, he was not able to make contact. The trial

       court granted the oral motion in limine “as to the third one.” Id. at 129.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1528 | April 25, 2019   Page 9 of 12
[18]   Subsequently, Det. Wright testified that he spoke with Mack on two occasions

       but Mack “had a busy work schedule” and it “wasn’t convenient at that time”

       to conduct an interview. Id. at 160. Det. Wright further testified that he told

       Mack “give me a call” when his schedule became less hectic. Id. Then the

       following exchange took place:


               State: Did he reach out to you with some availability?


               Det. Wright: He didn’t.


               State: Ultimately were you able to sit down and speak with the
               defendant?


               Defense: Objection.


       Id. at 161. During the ensuing bench conference, Mack argued that the State

       had deployed an evidentiary harpoon by making reference to a third contact,

       and he requested a mistrial. An “evidentiary harpoon” occurs when a

       prosecutor places inadmissible evidence before the jury for the deliberate

       purpose of prejudicing the jurors against a defendant. Evans v. State, 643

       N.E.2d 877, 879 (Ind. 1994). To prevail, the defendant must show both that the

       prosecutor acted deliberately and that the evidence was inadmissible. Id. The

       trial court concluded that the State had not deployed an evidentiary harpoon

       and denied the motion for a mistrial. We agree with the trial court. The State

       did not propound questions to elicit testimony either that Mack had an attorney




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1528 | April 25, 2019   Page 10 of 12
       take Det. Wright’s call or that Mack refused to speak. The record shows

       neither a violation of the motion in limine or an evidentiary harpoon.


[19]   Alternatively, Mack argues that the prosecutor committed a Doyle violation. See

       Doyle v. Ohio, 426 U.S. 610 (1976). “In Doyle, the Court held that under the

       Fourteenth Amendment a prosecutor may not use the silence of a defendant

       who’s been arrested and Mirandized to impeach the defendant.” Trice v. State,

       766 N.E.2d 1180, 1182 (Ind. 2002). Doyle rests on the fundamental unfairness

       of implicitly assuring a suspect that his silence will not be used against him and

       then using his silence to impeach an explanation subsequently offered at trial.

       Teague v. State, 891 N.E.2d 1121, 1124 (Ind. Ct. App. 2008) (citing Wainwright

       v. Greenfield, 474 U.S. 284, 291 (1986)). Here, however, Doyle has no

       application. Mack was not under arrest and had not received Miranda3

       warnings when Det. Wright attempted to contact him. And Mack did not

       testify and offer an explanation subject to impeachment. Doyle provides Mack

       with no grounds for a mistrial.



                                                    Conclusion
[20]   Sufficient evidence supports Mack’s convictions. He did not demonstrate an

       abuse of discretion by the trial court in replaying victim testimony. He did not

       demonstrate his entitlement to a mistrial.




       3
           384 U.S. 436 (1966).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1528 | April 25, 2019   Page 11 of 12
[21]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1528 | April 25, 2019   Page 12 of 12
