MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Apr 20 2018, 10:15 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
Donald C. Swanson, Jr.                                   Curtis T. Hill, Jr.
Deputy Public Defender                                   Attorney General
Fort Wayne, Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jerry L. Williamson,                                     April 20, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1711-CR-2782
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable John F. Surbeck,
Appellee-Plaintiff                                       Jr., Judge
                                                         Trial Court Cause No.
                                                         02D04-1608-FA-4



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2782 | April 20, 2018           Page 1 of 8
                                             Case Summary
[1]   A jury convicted Jerry L. Williamson of five counts of class A felony child

      molesting and three counts of class C felony child molesting. He now appeals,

      raising as fundamental error the trial court’s pretrial exclusion of evidence

      pursuant to the Rape Shield Rule. Finding that he waived any argument in this

      regard by failing to make an offer of proof at trial, we affirm.


                                  Facts and Procedural History
[2]   Williamson and Charlotte McMahon (“Mother”) are the biological parents of

      D.W. (“Son”), who was born in 2002 and lived with Mother. At age three, Son

      was diagnosed with autism. At age four, he began having regular visits with

      Williamson every other weekend and for one week each summer. At age

      eleven, he functioned at the age of a four- or five-year-old.


[3]   In October 2014, several days after Son had been with Williamson for a

      weekend, he was talking with his half brother, and Mother overheard him use

      the words “butts” and “wieners.” Tr. Vol. 2 at 49. When Mother asked the

      boys what they were discussing, Son said, “my daddy tickled my butt with his

      wiener,” “my daddy tickled my mouth with his wiener,” and “my daddy tickled

      my wiener with his mouth.” Id. Mother immediately phoned Williamson,

      who denied the accusations and said, “[P]lease do not report this, please do not

      call the police or Child Protective Services [“CPS”] because I will go away for

      the rest of my life and never see my child again.” Id. at 50. Mother reported

      the matter to police and CPS. A forensic specialist interviewed Son at a local


      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2782 | April 20, 2018   Page 2 of 8
      children’s center, where he made the same accusations that he had verbalized to

      Mother. He also reported that something came out of his daddy’s wiener and

      said that he felt like he was going to puke when his daddy’s wiener was in his

      mouth. He later was interviewed by a sexual assault nurse, who reported that

      he told her, “dad hurt it,” “hurt it with daddy’s weiner [sic],” while pointing to

      his anus; “it hurts, red stuff on toilet paper.” State’s Ex. 6. He told the nurse

      that Williamson “put my weiner [sic] in his butt” and used the terms “tickle,

      tickle, tickle.” Id. He tried to put his finger in the nurse’s mouth and said, “oh,

      oh, oh, daddy says, tickle, tickle, tickle,” “Put your mouth in his weiner [sic].”

      Id. He also said, “put weiner [sic] in mouth,” “stuff went in mouth,” “made

      mouth sick,” and then “he said ‘thank you,” “love you.’” Id. The nurse asked

      Son when this had happened, and he responded, “At nighttime at dad’s, lots of

      times.” Id.


[4]   A few months after Son made his disclosures concerning Williamson, two other

      boys, T.D. and A.D., came forward and alleged that Williamson had sexually

      molested them as well. These adolescent brothers were relatives of

      Williamson’s ex-wife and had spent a significant amount of time at

      Williamson’s home between 2011 and 2014. The two boys generally stayed

      with Williamson on alternate weekends, with A.D.’s weekends occasionally

      coinciding with Son’s weekends. T.D., the older of the brothers, disclosed that

      when he was ten years old, Williamson began rubbing his penis over his pants

      while he was trying to play video games and then progressed to rubbing his bare




      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2782 | April 20, 2018   Page 3 of 8
      penis. He also reported that on more than one occasion, Williamson had

      forced him to suck his penis and had put his mouth on T.D.’s penis.


[5]   A.D. was eight years old when he began visiting Williamson. Over the next

      couple years, Williamson started molesting him. A.D. recounted a time when

      he was awakened by Williamson, who was putting his mouth on A.D.’s penis.

      Another time, Williamson tried to insert his penis into A.D.’s mouth and then

      masturbated until “white stuff came out.” Tr. Vol. 2 at 238-39. A.D. disclosed

      that he had been forced to perform and submit to oral sex with Williamson

      numerous times. He also reported that shortly before Son made his disclosures

      about Williamson, he saw Williamson insert his penis into Son’s mouth and

      saw Son spit out the “white stuff.” Id. at 240. A.D. and T.D. ceased visiting

      Williamson after they heard about Son’s disclosures. A few months later, T.D.

      reported that Williamson had molested him, and the boys’ stepmother

      questioned A.D., who said that he too had been molested by Williamson.


[6]   In August 2016, the State charged Williamson with eleven counts of child

      molesting, five as class A felonies, two as level 1 felonies, three as class C

      felonies, and one as a level 4 felony. The State amended the information to

      dismiss the two level 1 felony counts as well as the level 4 felony count. Nine

      months later, Williamson filed a belated motion of intent to offer evidence




      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2782 | April 20, 2018   Page 4 of 8
      under Indiana Evidence Rule 412.1 The trial court conducted a hearing, and

      the State subpoenaed witnesses for both parties. At the hearing, defense

      counsel asserted that A.D. and T.D. had previously made sexual assault

      allegations against a different perpetrator and that Son had merely overheard

      the brothers recounting those assaults and co-opted the details as his own.

      With respect to the counts involving A.D. and T.D., Williamson indicated that

      his defense strategy was to show that though the boys might have been

      molested, it was by a person other than him. The defense opted not to call any

      of the subpoenaed witnesses.


[7]   In response to Williamson’s arguments, the State indicated that A.D. had not

      made any allegations against a person other than Williamson and that T.D. had

      testified at his deposition that he had never discussed the other perpetrator with

      A.D. or Son and that he and Son were rarely ever at Williamson’s home on the

      same weekends. Pretrial Tr. at 8. The State also indicated that it was prepared

      to offer testimony from an autism doctor stating that it is “very unlikely that

      [Son] could overhear a conversation and internalize it and be able to repeat it




      1
        In a criminal proceeding involving alleged sexual misconduct, Indiana Evidence Rule 412, the Rape Shield
      Rule, prohibits the admission of evidence offered to prove that a victim “engaged in other sexual behavior.”
      Ind. Evidence Rule 412(a)(1). The purpose of the rule is “to prevent the victim of a sexual assault from being
      put on trial … and, importantly, to remove obstacles to reporting sex crimes.” Johnson v. State, 6 N.E.3d 491,
      498 (Ind. Ct. App. 2014) (citations and internal quotation marks omitted). Rule 412(b)(1)(A) allows the court
      to admit “evidence of specific instances of a victim’s or witness’s sexual behavior, if offered to prove that
      someone other than the defendant was the source of semen, injury, or other physical evidence.” Rule
      412(c)(1) requires the party intending to offer the evidence to file a motion at least ten days before trial
      specifically describing the evidence it seeks to introduce and the purpose for which it will be offered. Indiana
      Code Section 35-37-4-4, known as the Rape Shield Statute, is substantially similar to Indiana Evidence Rule
      412. Williamson offered the evidence only under Rule 412.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2782 | April 20, 2018               Page 5 of 8
      and show actions the way he did. That is outside the scope of what he’s

      capable of with his autism.” Id.


[8]   The trial court took the matter under advisement and denied Williamson’s Rule

      412 motion. During his October 2017 jury trial, Williamson did not renew his

      motion or make an offer of proof. The jury found Williamson guilty as

      charged, and the trial court sentenced him to an aggregate 140-year term.

      Williamson now appeals. Additional facts will be provided as necessary.


                                     Discussion and Decision
[9]   Williamson maintains that the trial court erred in denying his pretrial motion to

      introduce evidence under the Rape Shield Rule. The State claims, and

      Williamson admits, that he failed to renew his motion and make an offer of

      proof during his jury trial. To preserve an error for appellate review, a party

      must do more than challenge the pretrial ruling; rather, “the evidence must be

      offered at trial to give the trial court an opportunity to rule on its admissibility at

      that time.” Miller v. State, 716 N.E.2d 367, 370 (Ind. 1999) (quoting Tyra v.

      State, 506 N.E.2d 1100, 1102-03 (Ind. 1987)); see also Ind. Evidence Rule

      103(a)(2) (requiring that party seeking to preserve claim of error concerning

      excluded evidence must inform the court of its substance by an offer of proof).

      This requirement specifically applies to exclusions under the Rape Shield Rule,

      “even though Rule 412 … include[s] specific provisions for ruling on the

      admissibility of the proposed evidence after pretrial notice and hearing.” Miller,




      Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2782 | April 20, 2018   Page 6 of 8
       716 N.E.2d at 370. Having failed to renew his pretrial motion or make an offer

       of proof at trial, Williamson failed to preserve the alleged error for review.


[10]   Nevertheless, Williamson claims that he is entitled to relief under the doctrine

       of fundamental error. “[A] claim waived by a defendant’s failure to raise a

       contemporaneous objection can be reviewed on appeal if the reviewing court

       determines that a fundamental error occurred.” Delarosa v. State, 938 N.E.2d

       690, 694 (Ind. 2010) (citation omitted). Fundamental error is an extremely

       narrow exception to the waiver rule, whereby the defendant must demonstrate

       that the alleged error is so prejudicial to his rights as to “make a fair trial

       impossible.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014). The fundamental

       error doctrine “applies only when the error constitutes a blatant violation of

       basic principles, the harm or potential for harm is substantial, and the resulting

       error denies the defendant fundamental due process.” Covey v. State, 929

       N.E.2d 813, 819 (Ind. Ct. App. 2010).


               ‘A finding of fundamental error essentially means that the trial
               judge erred ... by not acting when he or she should have....’
               Fundamental error is meant to permit appellate courts a means to
               correct the most egregious and blatant trial errors that otherwise
               would have been procedurally barred, not to provide a second
               bite at the apple for defense counsel who ignorantly, carelessly,
               or strategically fail to preserve an error.


       Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (citation omitted) (emphasis

       added).




       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2782 | April 20, 2018   Page 7 of 8
[11]   Williamson is not challenging the trial court’s admission of some allegedly

       prejudicial evidence to which he failed to object. Instead, he seeks to use

       fundamental error to correct his own failure to offer evidence at his trial.

       Fundamental error is not a safety valve to rescue unasserted or unrenewed

       claims. Rather, it corrects egregious, prejudicial errors made at trial, by the trial

       court. No such error occurred here. Williamson never broached the subject of

       the Rule 412 evidence, and it was not the trial court’s responsibility to ask

       whether he wished to further pursue the introduction of the evidence ruled

       inadmissible at the pretrial hearing. In short, Williamson’s procedural default

       cannot be rescued by the fundamental error doctrine. Consequently, we affirm.


[12]   Affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1711-CR-2782 | April 20, 2018   Page 8 of 8
