MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Aug 18 2020, 9:22 am
court except for the purpose of establishing
                                                                            CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Angela Field Trapp                                       Curtis T. Hill, Jr.
Trapp Law, LLC                                           Attorney General
Indianapolis, Indiana
                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Rashaun Howard,                                          August 18, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2762
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff                                       Barbara Crawford, Judge
                                                         Trial Court Cause No.
                                                         49G01-1805-F3-14537



Vaidik, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020                 Page 1 of 14
                                          Case Summary
[1]   Rashaun Howard appeals his conviction for Level 3 felony rape. He argues that

      the trial court erred by admitting his interview with police and that the evidence

      is insufficient to support the conviction. We affirm.



                            Facts and Procedural History
[2]   The evidence most favorable to the conviction is as follows. Howard and his

      biological sister, D.L., were adopted by different families at very young ages,

      but they were raised to know each other as siblings, and their families

      celebrated some special occasions together. One Saturday in April 2018, D.L.

      celebrated her sixteenth birthday with a party at her family’s house. Howard,

      who was seventeen, attended the party with his family. As the party ended,

      D.L. asked to spend the night at Howard’s house, and her parents agreed. This

      was not unusual, since D.L. and Howard only saw each other once or twice a

      year for special occasions and they often spent the night at each other’s houses

      after the celebration ended.


[3]   Howard was scheduled to work at Arby’s, so D.L. played video games in

      Howard’s bedroom with his nieces and nephew until he returned. When

      Howard returned from work, he took a shower, and his nieces and nephew left

      his bedroom. After showering and redressing, Howard sat on a mattress on his

      bedroom floor and played video games. Meanwhile, D.L. lay in Howard’s twin

      bed, watching YouTube videos and texting friends on her phone. At some


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020   Page 2 of 14
      point, Howard “died” in the video game he was playing and moved up onto the

      bed with D.L. Tr. Vol. III p. 12. D.L. wanted to go to bed, so she plugged her

      phone into a charger on the bedside table and lay down. Howard then moved

      so he was lying behind her. D.L. was uncomfortable that Howard was so close

      to her and “didn’t want him right there.” Id. at 14. Howard then put his right

      arm around D.L.’s side. In response, D.L. rolled over onto her back so she was

      facing up, looking at the ceiling. She then sat up to check her phone, saw it was

      11:00 p.m., and lay back down on her back. Howard touched her again. He

      “started with [her] legs first,” touching her “[a]s if he was going to take [her]

      pants off,” but he took his pants off first. Id. at 16-17. He took off D.L.’s pants

      and underwear. D.L. said nothing while Howard did this, and he said nothing

      to her. Then Howard put his penis inside D.L.’s vagina. D.L. said “Stop,” but

      he said, “Shhh.” Id. at 47. D.L. also pushed Howard with her hands but

      couldn’t get him off of her. See id. After about five minutes, Howard took his

      penis out of D.L.’s vagina and ejaculated on the bedsheets. D.L. lay there “for a

      few seconds” before picking up her pants, putting them back on, and going to

      the bathroom. Id. at 20. When D.L. returned to Howard’s room, he was back to

      sitting on the mattress on the floor playing video games, so she lay down on the

      bed and went to sleep.


[4]   The next morning, D.L. went with Howard and his family to church. After

      church, D.L.’s father picked her up. She was quiet the whole ride home and

      didn’t tell her father what happened because she “was confused” and “didn’t

      think that [her] own brother would do something like that to [her].” Id. at 24.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020   Page 3 of 14
      D.L.’s mother later testified that when D.L. got home, she “seemed really

      tired” and “slept the rest of the entire day.” Tr. Vol. II p. 207.


[5]   On Monday, D.L. went to school. Her friend, T.A., noticed that D.L. was “a

      little off” and asked what was going on. Id. at 228. D.L. told T.A. what

      happened with Howard on Saturday night. T.A. then told a teacher that

      something had happened to D.L. and that she needed to talk to the police. A

      school-resource officer spoke briefly to D.L. about what was going on. During

      their talk, D.L. was “very visibly upset” and spoke in a “[c]rying, shaky voice.”

      Id. at 239. D.L.’s parents were then called to the school, and after they arrived,

      the family went to the Child Advocacy Center and spoke with Detective

      Michael Margetson. After telling Detective Margetson what had happened,

      D.L. and her mother went to Indiana University Health Methodist Hospital to

      complete a sexual-assault examination. As D.L. was being examined, Detective

      Margetson went to D.L.’s house to collect her clothing from Saturday night,

      including her underwear, which were stained with blood. See Ex. 11A.


[6]   Detective Margetson then contacted the Howard family and asked to speak to

      Howard and his parents about “an investigation regarding his sister [D.L.].” Tr.

      Vol. II p. 14. Howard and his parents met Detective Margetson at the Child

      Advocacy Center, and he told them there was an allegation of “inappropriate

      conduct between [Howard] and [D.L.].” Id. at 26. Detective Margetson

      explained that because Howard was under eighteen years old, a parent had to

      be present during the interview. Howard’s father accompanied Howard into the

      interview room, and Detective Margetson advised them of Howard’s juvenile

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020   Page 4 of 14
      rights. After advising them of his rights, Detective Margetson took Howard and

      his father into a different room, where there was no recording equipment, so

      that Howard and his father could discuss whether they wanted to speak with

      the detective. See Tr. Vol. III pp. 122-23. After a few minutes, Howard and his

      father told Detective Margetson they would speak with him. Detective

      Margetson then had both Howard and his father sign a juvenile waiver form

      and began the interview.


[7]   Initially, Howard admitted touching D.L. inappropriately on “her chest and

      butt on accident,” but he then said he thought “somethin’ else happened.” Ex.

      21. The following exchange occurred:


              [Detective Margetson]: Well the ‘somethin’ else happened’ was
              kinda what the specific of what I need to get to. Because there’s a
              pretty big part that’s bein’ left out. Which is pretty important for
              this discussion. And that’s what I want you to tell me what the
              somethin’ was that got left out. And if you don’t feel comfortable
              discussing this, you can talk to your dad whether you wanna stay
              – for him or not. I mean this – this is – this is something that’s
              gonna come out no matter what. Uh, but it – mean, I don’t know
              if you feel comfortable saying this stuff in front of him or not but
              I – I need you to n- tell me the truth about what happened, okay?


              [Howard]: Mm-hmm. I think it would be easiest . . .


              [Howard’s father]: What’s that?


              [Howard]: If you weren’t in here. So I can tell him what
              happened.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020   Page 5 of 14
              [Detective Margetson]: Are you okay with that?


              [Howard’s father]: Yeah.


      Id. Howard’s father then left the room, and Detective Margetson continued the

      interview. Howard admitted that he “took things a bit way too far, with the

      touching,” and “it got outta hand.” Id. Howard said that he put his penis inside

      D.L.’s vagina, that she had told him to “stop,” and that he did not listen and

      “kept going.” Id. Howard further stated that when he touched D.L.’s legs, she

      moved his hand away “twice,” but he put it back each time. Id. Howard also

      told Detective Margetson that D.L. tried to push him off with her hands and

      told him to stop a second time. See id. Howard explained that after the second

      time D.L. told him to stop, he “realized what [he] was doing” and “got off”

      D.L. Id. Following the interview, Howard was arrested and charged with Level

      3 felony rape when compelled by force or imminent threat of force.


[8]   In April 2019, Howard moved to suppress his interview with Detective

      Margetson. He argued that Detective Margetson did not give him and his

      parents adequate notice of the charges against him before they signed the

      juvenile waiver form. See Tr. Vol. II p. 89. The State responded that Detective

      Margetson told Howard and his parents there were allegations of misconduct

      made by D.L. against Howard and that was all that was required of him. See id.

      at 91. The State also noted that at the time of the interview, Detective

      Margetson did not know what charges would be filed since charging decisions



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020   Page 6 of 14
       are made by the prosecutor. See id. The trial court denied Howard’s motion to

       suppress. Howard’s case then proceeded to a jury trial in September 2019.


[9]    At trial, Howard admitted that he had sexual intercourse with D.L., so the sole

       issue before the jury was determining whether there was force. In addition to

       the details set forth above, D.L. testified that she did not want to have sex with

       Howard. See Tr. Vol. III p. 19. D.L. also said that she started her period on

       Monday, the day she was examined at the hospital. See id. at 44. Forensic Nurse

       Jennifer Waters-Gillen testified that she examined D.L. and found that D.L.

       had started her period that same day. Waters-Gillen said that during the exam,

       D.L. was “quiet, crying, looking down at the floor, wiping her tears. Very

       reserved. Didn’t really, didn’t say much, just more cried.” Id. at 62. Waters-

       Gillen stated that D.L. told her that she said “no” to Howard several times and

       that Howard forced his penis inside her vagina. See id. at 78. The State also

       played an audio recording of Howard’s interview with Detective Margetson for

       the jury.


[10]   During closing arguments, the defense argued that D.L.’s testimony was

       inconsistent, that the blood found in her underwear was from her period, and

       that D.L. was accusing Howard of rape because she regretted having sex with

       him. See id. at 207, 211. In response, the prosecutor argued that D.L.’s

       testimony was consistent, that D.L. did not start her period until Monday so the

       blood stains on her underwear from Saturday night could indicate force, and

       that Howard owed D.L. “a duty as another human being” and “it might have

       been a greater duty because he is her biological brother. She trusted him . . . and

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020   Page 7 of 14
       he violated that trust.” Id. at 216-17. The jury found Howard guilty. The trial

       court sentenced Howard to eight years, with two years executed in the

       Department of Correction, two years to be served on home detention through

       Community Corrections, and four years suspended.


[11]   Howard now appeals.



                                  Discussion and Decision
                                   I. Admission of Interview
[12]   Howard contends that certain procedural safeguards for the waiver of a

       juvenile’s constitutional rights were not followed and that therefore the trial

       court erred in admitting his interview with Detective Margetson into evidence.


[13]   The State bears the burden of proving beyond a reasonable doubt that the

       juvenile received all the protections required by Indiana Code section 31-32-5-1

       and that both the juvenile and their parent knowingly and voluntarily waived

       the juvenile’s rights. D.M. v. State, 949 N.E.2d 327, 334-35 (Ind. 2011). We

       review a trial court’s discretionary decision to admit evidence only for an abuse

       of discretion. Fairbanks v. State, 119 N.E.3d 564, 567 (Ind. 2019), cert. denied.

       The admission of evidence constitutes an abuse of discretion when it is clearly

       against the logic and effect of the facts and circumstances. Id. at 568.


[14]   Indiana Code section 31-32-5-1 provides, in relevant part:




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020   Page 8 of 14
        Any rights guaranteed to a child under the Constitution of the
        United States, the Constitution of the State of Indiana, or any
        other law may be waived only:


                                     *        *       *        *


        (2) by the child’s parent . . . if:


                 (A) that person knowingly and voluntarily waives the
                 right;


                 (B) that person has no interest adverse to the child;


                 (C) meaningful consultation has occurred between that
                 person and the child; and


                 (D) the child knowingly and voluntarily joins with the
                 waiver[.]


Furthermore, in determining whether any waiver of rights during custodial

interrogation was made knowingly and voluntarily, the trial court shall consider

all the circumstances of the waiver, including the following:


        (1) The child’s physical, mental, and emotional maturity.


        (2) Whether the child or the child’s parent, guardian, custodian,
        or attorney understood the consequences of the child’s
        statements.


        (3) Whether the child and the child’s parent, guardian, or
        custodian had been informed of the delinquent act with which
        the child was charged or of which the child was suspected.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020   Page 9 of 14
               (4) The length of time the child was held in custody before
               consulting with the child’s parent, guardian, or custodian.


               (5) Whether there was any coercion, force, or inducement.


               (6) Whether the child and the child’s parent, guardian, or
               custodian had been advised of the child’s right to remain silent
               and to the appointment of counsel.


       Ind. Code § 31-32-5-4.


[15]   Howard argues that because neither he nor his father was told that he was

       suspected of rape before signing the waiver, any consultation he had with his

       father would not have been meaningful and the waiver was not knowing and

       voluntary. See Appellant’s Br. p. 26. In other words, Howard argues that both

       the meaningful-consultation and knowing-and-voluntary requirements were not

       met because Detective Margetson did not specifically advise him and his father

       that he was investigating an allegation of rape.


[16]   Regarding the meaningful-consultation issue, we have held that a valid waiver

       does not require that an individual be informed of all information useful in

       making his decision or all information that might affect his decision to confess.

       Estrada v. State, 969 N.E.2d 1032, 1042 (Ind. Ct. App. 2012) (citing Colorado v

       Spring, 479 U.S. 564, 576-77 (1987)), trans. denied. Here, Detective Margetson’s

       pre-waiver advisements that he was investigating “inappropriate conduct

       between [Howard] and [D.L.],” Tr. Vol. III p. 26, were sufficient to put

       Howard and his father on notice that this was a serious matter, see Estrada, 969


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020   Page 10 of 14
       N.E.2d at 1043. As such, Howard and his father were given an opportunity for

       meaningful consultation before signing the waiver.


[17]   On the knowing-and-voluntary issue, it is true that Howard and his father were

       not specifically told that a rape charge was possible. However, informing a

       juvenile and their parents of the act with which the child is charged or of which

       the child is suspected is but one of the six nonexclusive factors to be considered

       when determining whether a waiver is made knowingly and voluntarily.

       Estrada, 969 N.E.2d at 1042. Standing alone, this factor is insufficient to render

       a waiver unknowing and involuntary. Id.; see also Tingle v. State, 632 N.E.2d

       345, 352-53 (Ind. 1994) (rejecting an argument that defendant’s waiver was not

       knowing and voluntary where a detective did not inform him or his

       grandmother of the possible offenses to be charged, that he could be charged as

       an adult, and that he could face a severe sentence). Instead, the trial court must

       consider all the circumstances of the waiver to determine whether it was made

       knowingly and voluntarily. Estrada, 969 N.E.2d at 1042.


[18]   Here, seventeen-year-old Howard was just over a month shy of his eighteenth

       birthday when Detective Margetson called his parents, asking to speak with

       Howard about “an investigation regarding his sister [D.L.].” Tr. Vol. III p. 14.

       Howard and his parents voluntarily went to the Child Advocacy Center to

       speak to Detective Margetson. When the family arrived, Detective Margetson

       told them there was an allegation of “inappropriate conduct between [Howard]

       and [D.L.].” Id. at 26. Howard and his father accompanied Detective

       Margetson to an interview room, where he read them Howard’s rights. Howard

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020   Page 11 of 14
       and his father were then taken to a separate room, where they spoke privately

       about whether they wanted to speak to Detective Margetson. After a brief

       period, Howard and his father emerged and told Detective Margetson they

       would speak with him. Detective Margetson then advised Howard of his rights

       again, before both Howard and his father signed the waiver form. There is no

       evidence that Howard was physically, mentally, or emotionally immature for

       his age or that he or his father were coerced, forced, or induced to sign the

       waiver.1


[19]   For all of these reasons, we find that the waiver was knowing and voluntary

       and that therefore the trial court did not abuse its discretion in admitting

       Howard’s interview into evidence.


                                      II. Insufficient Evidence
[20]   Howard next challenges the sufficiency of the evidence by arguing that the State

       failed to prove force beyond a reasonable doubt. When reviewing sufficiency-of-

       the-evidence claims, we neither reweigh the evidence nor judge the credibility of

       witnesses. Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015). We will only

       consider the evidence supporting the verdict and any reasonable inferences that

       can be drawn from the evidence. Id. A conviction will be affirmed if there is




       1
         To the extent that Howard also argues that his waiver was not knowing and voluntary due to his “mental
       and emotional maturity,” he does not point to any evidence showing that the almost eighteen-year-old high-
       school junior, who also maintained a job at Arby’s, lacked maturity or education such that the waiver was
       not knowing or voluntary.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020               Page 12 of 14
       substantial evidence of probative value to support each element of the offense

       such that a reasonable trier of fact could have found the defendant guilty

       beyond a reasonable doubt. Id.


[21]   Our holding that the interview was properly admitted is fatal to Howard’s

       sufficiency argument. During the interview, Howard admitted that D.L. moved

       his hand off her side twice, that she said “stop” twice, and that she tried to push

       him off her with her hands. See Exs. 20 (audio recording), 21 (transcript). And

       Howard admitted that despite D.L.’s attempts to push him away and get him to

       stop, he inserted his penis into her vagina. See Exs. 20, 21. We note that on

       appeal, Howard refers to his interview as a “confession.” Appellant’s Br. p. 28.

       In short, Howard himself admitted that he used force to have sexual intercourse

       with D.L.


[22]   Moreover, D.L.’s testimony alone is sufficient to prove force. D.L. testified that

       she did not want to have sexual intercourse with Howard, that she said “stop,”

       and that she tried to push him off her. To the extent that Howard argues D.L.’s

       testimony is inconsistent, it was up to the jury to resolve any inconsistencies.

       See Perry v. State, 78 N.E.3d 1, 8 (Ind. Ct. App. 2017).2




       2
         Our finding that the State presented sufficient evidence to support the conviction is fatal to Howard’s
       argument that the trial court erred by denying his motion for a directed verdict. Accordingly, we need not
       separately address this argument. Howard also argues that D.L.’s testimony was incredibly dubious and that
       therefore the incredible-dubiosity rule applies to this case. However, that rule does not apply here because
       Howard’s own statement corroborates what D.L. said. See Moore v. State, 27 N.E.3d 749, 757-58 (Ind. 2015).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020                Page 13 of 14
[23]   Accordingly, there was sufficient evidence for the jury to find that the State

       proved force beyond a reasonable doubt.3


[24]   Affirmed.


       Bailey, J., and Baker, Sr.J., concur.




       3
           Howard makes two additional arguments on appeal, both of which are without merit.

       First, Howard contends that the trial court abused its discretion by holding a sidebar during voir dire after the
       prosecutor objected to one of the defense’s questions. There is no evidence that the prospective jurors
       overheard any of the sidebar discussion such that Howard was prejudiced. As the State points out, sidebars
       are simply a procedural means by which to keep the parties on track when selecting a jury.
       Next, Howard asserts that the prosecutor committed prosecutorial misconduct during her rebuttal closing
       argument when she said (1) that D.L.’s statements were consistent, (2) that Howard owed D.L. a duty “as
       another human being . . . it might have been a greater duty because he is her biological brother,” and (3) that
       the blood stain on D.L.’s underwear from Saturday night were not from her period (that she started on
       Monday) and could be evidence of force. Howard concedes he did not object, move for an admonishment, or
       request a mistrial after any of the alleged misconduct and therefore must show fundamental error. And we
       see no fundamental error here because all three statements were based on evidence. See Neville v. State, 976
       N.E.2d 1252, 1260 (Ind. Ct. App. 2012) (attorney may properly argue any logical or reasonable conclusions
       based on their own analysis of the evidence). Accordingly, we see no prosecutorial misconduct here, let alone
       enough to establish fundamental error.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2762 | August 18, 2020                    Page 14 of 14
