MEMORANDUM DECISION                                            FILED
                                                          Jun 23 2016, 8:28 am
Pursuant to Ind. Appellate Rule 65(D),
                                                               CLERK
this Memorandum Decision shall not be                      Indiana Supreme Court
                                                              Court of Appeals
regarded as precedent or cited before any                       and Tax Court

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
Jennifer L. Koethe                                       Gregory F. Zoeller
La Porte, Indiana                                        Attorney General of Indiana

                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Vincent C. Jones,                                        June 23, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         46A03-1508-CR-1192
        v.                                               Appeal from the LaPorte Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Alevizos,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         46C01-1407-FA-239



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A03-1508-CR-1192 | June 23, 2016   Page 1 of 10
                                             Case Summary
[1]   Vincent C. Jones appeals his convictions following a jury trial for one count of

      class A felony child molesting and two counts of class B felony sexual

      misconduct with a minor. He contends that the trial court abused its discretion

      in admitting certain evidence and also in excluding certain evidence. He further

      asserts that the State presented insufficient evidence to sustain his convictions.

      Finding no abuse of discretion and concluding that the State presented

      sufficient evidence, we affirm.


                                 Facts and Procedural History
[2]   When M.K. was eleven years old and in fifth grade, she began living in a trailer

      with her mother, her two younger siblings, and her mother’s boyfriend, Jones,

      in Westville. M.K.’s mother worked for Westville Liquors and Jones worked as

      a semi-truck driver. Jones parked his semi-truck cab at a BP gas station across

      the street from the trailer park. Jones acted as a step-father to M.K. and her

      siblings, and he babysat the three children while M.K.’s mother was at work.

      He also often took one or more of the children on work trips with him in his

      truck. Jones was a strict disciplinarian, but M.K. and Jones had a normal and

      good relationship, although Jones sometimes seemed to be “nicer” to M.K.

      than he was to her siblings. Tr. at 64.


[3]   When M.K. was thirteen years old and in the seventh grade, her relationship

      with Jones changed. One day, Jones picked her up after school and told her

      that they needed to go to his truck in order to clean it. This was an activity that


      Court of Appeals of Indiana | Memorandum Decision 46A03-1508-CR-1192 | June 23, 2016   Page 2 of 10
      they had done on prior occasions. Jones drove M.K. to the BP parking lot

      where his truck was parked, went inside the gas station briefly, and then took

      M.K. inside his truck. Once inside the truck cab, Jones told M.K. to remove

      her clothes. M.K. was scared and told Jones that she did not want to. Jones

      told her “this has to happen and you’ll understand some day why.” Id. at 69.

      Jones then put on a condom that he had purchased at the gas station, and he

      had sexual intercourse with M.K. This hurt M.K. and caused her to bleed

      “really bad.” Id. at 72.


[4]   On another occasion, when M.K. was fourteen years old, Jones planned to take

      M.K. and her siblings to “the Pumpkin Fest.” Id. at 73. M.K.’s mother was

      not at home. Jones called M.K. into her mother’s bedroom and threatened that

      he would not take her or her siblings to the festival until he had anal sex with

      her. Jones obtained “lube” from the bedside table, applied it to himself and to

      M.K., and then had anal sex with M.K. Id. at 75. On yet a subsequent

      occasion when M.K. was under the age of sixteen, Jones called M.K. into the

      trailer bathroom, told her to stand facing the bathroom sink and the mirror, and

      he had sexual intercourse with her from behind.


[5]   M.K. was so embarrassed and scared that she did not report any of these

      incidents to her mother. M.K. eventually confided in her friend L.S., after L.S.

      noticed that M.K. had become distant, quiet, and “just always seemed so sad.”

      Id. at 215. M.K. also told her boyfriend, Kevin, and then finally told her

      mother that Jones had been molesting her.



      Court of Appeals of Indiana | Memorandum Decision 46A03-1508-CR-1192 | June 23, 2016   Page 3 of 10
[6]   When Jones learned that M.K. had told her mother about the molestations,

      Jones threatened M.K. that he would shoot himself unless she told her mother

      that it was all a lie. L.S. called the police on M.K.’s behalf, and Jones was

      arrested. The State charged Jones with one count of class A felony child

      molesting and two counts of class B felony sexual misconduct with a minor. A

      jury trial was held in May 2015. The jury found Jones guilty as charged. This

      appeal ensued.


                                     Discussion and Decision

           Section 1 – The trial court did not abuse its discretion in
                         admitting certain evidence.
[7]   Jones first challenges the trial court’s admission of certain evidence. The trial

      court is afforded wide discretion in ruling on the admissibility of evidence, and

      we review its ruling only for an abuse of discretion. Beasley v. State, 46 N.E.3d

      1232, 1235 (Ind. 2016). “An abuse of discretion occurs when the decision is

      clearly against the logic and effect of the facts and circumstances and the error

      affects a party’s substantial rights.” Id. We do not reweigh the evidence, and

      we consider only the evidence that is either favorable to the ruling or unrefuted

      evidence favorable to the defendant. Id.


[8]   Here, the trial court permitted M.K. to testify regarding an uncharged incident

      between her and her friends and Jones. M.K. testified that, after Jones was

      initially arrested and released, she and her friend L.S. encountered Jones when

      they were walking to Dairy Queen. M.K. described the threatening way in


      Court of Appeals of Indiana | Memorandum Decision 46A03-1508-CR-1192 | June 23, 2016   Page 4 of 10
      which Jones, who was driving in a van at the time, accelerated toward the two

      girls. The young girls were scared, so they ran to the front porch of a house and

      called M.K.’s boyfriend, Kevin, to come pick them up. After Kevin picked the

      girls up, Jones drove up to the vehicle and tried to “intimidate” Kevin. Tr. at

      151. Kevin drove around the block, and Jones drove his van around the block

      in the wrong direction and almost “hit[]” Kevin’s vehicle. Id. Kevin backed up

      and began driving on the main road, and Jones followed. M.K. testified that

      they were “speeding because [they were] trying to get away.” Id. M.K. stated

      that when they were forced to slow down because of traffic, Jones cut his

      vehicle in front of Kevin’s and tried to run them off the road before finally

      driving away. M.K. stated that the incident was reported to the police.


[9]   Jones objected to M.K.’s testimony regarding the incident as inadmissible

      character evidence pursuant to Indiana Evidence Rule 404(b)(1), which

      provides that “[e]vidence of a crime, wrong, or other act is not admissible to

      prove a person’s character in order to show that on a particular occasion the

      person acted in accordance with the character.” The rationale behind Rule

      404(b) is that the jury is precluded from making the forbidden inference that

      prior wrongful conduct suggests present guilt. Halliburton v. State, 1 N.E.3d 670,

      681 (Ind. 2013). However, the trial court overruled Jones’s objection and

      accepted the State’s reasoning that testimony regarding the incident was

      admissible pursuant to Indiana Evidence Rule 404(b)(2) as evidence of Jones’s

      knowledge of his guilt because Jones was attempting to intimidate or threaten

      witnesses from testifying against him. See Ind. Evidence Rule 404(b)(2)


      Court of Appeals of Indiana | Memorandum Decision 46A03-1508-CR-1192 | June 23, 2016   Page 5 of 10
       (permitting the introduction of character evidence for purposes such as “motive,

       opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,

       or lack of accident.”). 1


[10]   In admitting M.K.’s testimony regarding the uncharged incident with Jones, the

       trial court properly acknowledged the “long standing line of cases holding that

       ‘threats against potential witnesses as attempts to conceal or suppress evidence

       are admissible as bearing upon knowledge of guilt.’” Bowman v. State, No.

       21S04-1510-CR-604, 2016 WL 1640365, at *5 (Ind. Apr. 26, 2016) (quoting

       Bassett v. State, 895 N.E.2d 1201, 1211 (Ind. 2008)). Based upon the record

       before us, we conclude that the trial court was within its discretion in

       determining that Jones’s behavior constituted an attempt to intimidate

       witnesses to conceal his crimes, which bore upon his knowledge of guilt, and

       thus the testimony regarding the incident was admissible pursuant to Rule

       404(b)(2). Accordingly, the trial court did not abuse its discretion in admitting

       M.K.’s testimony.


[11]   Moreover, any error in the admission of evidence is to be disregarded unless it

       affects the substantial rights of a party. Hoglund v. State, 962 N.E.2d 1230, 1238

       (Ind. 2012). In viewing the effect of the evidentiary ruling on a defendant’s

       substantial rights, we look to the probable impact on the factfinder. Id. The




       1
        We note that, prior to trial, the State provided the required notice to Jones that it intended to offer this
       evidence at trial. See Ind. Evidence Rule 404(b)(2)(A) (requiring State to provide reasonable notice of the
       general nature of any such evidence intended to be offered at trial).

       Court of Appeals of Indiana | Memorandum Decision 46A03-1508-CR-1192 | June 23, 2016                 Page 6 of 10
       improper admission is harmless error if the conviction is supported by

       substantial independent evidence of guilt satisfying the reviewing court that

       there is no substantial likelihood that the challenged evidence contributed to the

       conviction. Id. As we will discuss more fully below, the State presented

       substantial independent evidence of Jones’s guilt such that we are satisfied that

       there is no substantial likelihood that M.K.’s testimony regarding the uncharged

       incident involving Jones contributed to his conviction. Thus, any error in the

       admission of M.K.’s testimony was harmless.


             Section 2 – The trial court did not abuse its discretion in
                           excluding certain evidence.
[12]   Jones next challenges the trial court’s exclusion of evidence regarding M.K.’s

       past sexual behavior. Specifically, Jones made an offer to prove that, prior to

       the molestation allegations here, M.K. was sent to the school counselor for

       providing oral sex to another student in the bathroom at school. 2 The State

       objected to the evidence as inadmissible pursuant to Indiana Evidence Rule

       412, which, subject to specific listed exceptions, prohibits the admission of

       “evidence offered to prove that a victim or witness engaged in other sexual

       behavior” or “evidence offered to prove a victim’s or witness’s sexual

       predisposition.” The State also alerted the trial court to the fact that Jones




       2
         Jones also claims that the trial court abused its discretion in excluding additional evidence of other sexual
       conduct by M.K.; however, Jones did not include that conduct in his offer to prove to the trial court. The
       failure to make an offer to prove results in a waiver of the asserted evidentiary error. Cole v. State, 28 N.E.3d
       1126, 1135 (Ind. Ct. App. 2015).

       Court of Appeals of Indiana | Memorandum Decision 46A03-1508-CR-1192 | June 23, 2016                 Page 7 of 10
       failed to give the required notice of his intent to offer this evidence. See Ind.

       Evidence Rule 412(b)(1) (providing in relevant part that a party intending to

       offer evidence under Rule 412(b) must file a motion, specifically describing the

       evidence and stating the purpose for which it is to be offered, at least ten days

       before trial unless the court, for good cause, sets a different time.). Accordingly,

       the trial court excluded the evidence.


[13]   As stated earlier, we review the trial court’s ruling on the admissibility of

       evidence only for an abuse of discretion. Beasley, 46 N.E.3d at 1235. Jones

       maintains that his proffered evidence was not within the purview of Rule 412

       because it was not offered to prove that M.K. engaged in other sexual behavior

       but instead to show a pattern of general misconduct by M.K. However, the

       trial court was not persuaded by this argument, and neither are we. 3 We cannot

       say that the trial court abused its discretion in excluding evidence of M.K.’s

       other sexual behavior. Additionally, Jones’s failure to comply with Evidence

       Rule 412(b)’s notice requirements would have been another reason to exclude

       evidence of M.K.’s other sexual behavior at trial and has resulted in waiver of

       the issue on appeal. See Johnson v. State, 6 N.E.3d 491, 499 (Ind. Ct. App. 2014)

       (holding that defendant’s failure to follow Rule 412’s procedural requirements

       precluded introduction of evidence at trial and waived issue on appeal).




       3
        Although on appeal Jones argues that his proffered evidence is admissible pursuant to Indiana Evidence
       Rule 412(b)(1)(a), he failed to makes this argument at trial. Accordingly, his claim of error is waived. See
       Marcum v. State, 725 N.E.2d 852, 863 (Ind. 2000) (a party “is limited to the specific grounds argued in the trial
       court and cannot assert new bases for admissibility for the first time on appeal.”).

       Court of Appeals of Indiana | Memorandum Decision 46A03-1508-CR-1192 | June 23, 2016                Page 8 of 10
           Section 3 – The State presented sufficient evidence to sustain
                               Jones’s convictions.
[14]   Finally, Jones contends that the State presented insufficient evidence to sustain

       his convictions. When reviewing a claim of insufficient evidence, we neither

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

       499 (Ind. 2015). We look to the evidence and reasonable inferences drawn

       therefrom that support the verdict and will affirm if there is probative evidence

       from which a reasonable factfinder could have found the defendant guilty

       beyond a reasonable doubt. Id. In short, if the testimony believed by the trier

       of fact is enough to support the verdict, then the reviewing court will not disturb

       the conviction. Id. at 500. “A conviction can be sustained on only the

       uncorroborated testimony of a single witness, even when that witness is the

       victim.” Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).


[15]   To convict Jones of class A felony child molesting, the State was required to

       prove that Jones, a person at least twenty-one years of age, knowingly or

       intentionally performed or submitted to sexual intercourse or deviate sexual

       conduct with M.K., who was under fourteen years of age. See Ind. Code § 35-

       42-4-3(a)(1). 4 To convict Jones of class B felony sexual misconduct with a

       minor, the State was required to prove that Jones, a person at least twenty-one

       years of age, performed or submitted to sexual intercourse or deviate sexual




       4
        Although this statute has been revised effective July 1, 2014, we refer to the version in effect at the time
       Jones committed his offenses.

       Court of Appeals of Indiana | Memorandum Decision 46A03-1508-CR-1192 | June 23, 2016                 Page 9 of 10
       conduct with M.K., who was at least fourteen years of age but less than sixteen

       years of age. See Ind. Code § 35-42-4-9(a)(1). 5


[16]   Here, M.K. testified in sufficient detail regarding multiple incidents of sexual

       intercourse and anal sex between herself and Jones, at least one incident

       occurring when she was thirteen years old, and several more occurring when

       she was under sixteen years old. Indeed, M.K. testified that Jones’s penis was

       uncircumcised, which corroborated her claim that she had seen him naked on

       the various occasions that he molested her. While Jones attempts to point out

       various inconsistencies in M.K.’s testimony as well as her inability to recall

       certain specific details about each incident, Jones is essentially asking us to

       reweigh the evidence and reassess M.K.’s credibility, which we may not do. It

       was the jury’s prerogative to weigh the evidence and assess credibility, and

       there is sufficient probative evidence from which a reasonable factfinder could

       have found Jones guilty of his crimes beyond a reasonable doubt. In sum, the

       State presented sufficient evidence to sustain Jones’s convictions for class A

       felony child molesting and two counts of class B felony sexual misconduct with

       a minor, and we affirm the convictions.


[17]   Affirmed.


       Najam, J., and Robb, J., concur.




       5
           See footnote 3.


       Court of Appeals of Indiana | Memorandum Decision 46A03-1508-CR-1192 | June 23, 2016   Page 10 of 10
