Pursuant to Ind.Appellate Rule 65(D),                                     Jul 10 2013, 5:33 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any 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:

ELLEN M. O’CONNOR                                           GREGORY F. ZOELLER
Marion County Public Defender Agency                        Attorney General of Indiana
Indianapolis, Indiana
                                                            GARY R. ROM
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

ADAM VOEGEL,                                        )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A05-1210-CR-502
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Kurt M. Eisgruber, Judge
                             Cause No. 49G01-1110-FA-73946


                                           July 10, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                          Case Summary

          Adam Voegel (“Voegel”) was convicted after a jury trial of two counts of Child

Molesting, as Class A felonies1; two counts of Child Molesting, as Class C felonies2; two

counts of Child Solicitation, as Class D felonies3; one count of Dissemination of Matter

Harmful to Minors, as a Class D felony4; and two counts of Obscene Performance, as Class A

misdemeanors.5 He was sentenced to an aggregate term of imprisonment of thirty-eight

years, and now appeals.

          We affirm.

                                               Issues

          Voegel presents two issues for our review, which we restate as:

             I.    Whether the trial court abused its discretion when it admitted into
                   evidence the contents of his interview with police because his
                   statements were coerced, despite his voluntary waiver of Miranda
                   rights; and

            II.    Whether the trial court abused its discretion when it excluded from
                   evidence information concerning the prior sexual conduct of one of two
                   victims.

                                  Facts and Procedural History

          During the summer of 2011, Voegel lived with his domestic partner, Jarrod Bertram

(“Bertram”), in Indianapolis. Throughout the course of the summer, Bertram’s nephews,

1
    Ind. Code § 35-42-4-3(a).
2
    I.C. § 35-42-4-3(b).
3
    I.C. § 35-42-4-6.
4
    I.C. § 35-49-3-3.
5
    I.C. § 35-49-3-2.

                                                 2
Ch.B., Cl.B., and Co.B., stayed in the house overnight on numerous occasions. Co.B. in

particular was very fond of Bertram.

       At some point during the summer, Co.B. fell asleep on the living room couch. When

he woke up, Voegel had placed his hand on Co.B.’s penis and had placed Co.B.’s hand on his

penis. Co.B. pretended to remain asleep during this incident.

       Later that summer, Voegel showed Co.B. several pornographic videos. Voegel also

fondled Co.B. or had Co.B. masturbate on several occasions, twice had Co.B. engage in anal

sex with him, and once had Co.B. perform oral sex upon him. On one occasion when Voegel

was watching Co.B. masturbate, Ch.B. entered the room, and Voegel eventually persuaded

Ch.B. to masturbate until Ch.B. ejaculated.

       On October 11, 2011, Co.B. informed a school guidance counselor that he had been

molested by Voegel. This resulted in forensic interviews of Co.B. and Ch.B., and led to a

police investigation.

       On October 14, 2011, Indianapolis Marion County Police Sergeant Jan Faber

(“Sergeant Faber”), a detective in the child abuse unit, conducted an interview with Voegel.

Voegel signed a waiver of his Miranda rights at the beginning of the interview. Voegel

informed Sergeant Faber repeatedly that he suffered from bipolar disorder but had not taken

prescribed medication for several months due to unaffordability after a job loss. Sergeant

Faber did not detect any impairment in Voegel’s capacity to waive his rights or provide

cogent information, and continued the interview. Eventually, Voegel admitted to committing

several criminal acts as to Co.B. and Ch.B. At the end of the interview, Sergeant Faber


                                              3
arrested Voegel.

       On October 19, 2011, Voegel was charged with four counts of Child Molesting, as

Class A felonies; five counts of Child Molesting, as Class C felonies; two counts of Obscene

Performance, as Class D felonies; two counts of Child Solicitation, as Class D felonies; and

two counts of Dissemination of Matter Harmful to Minors, as Class D felonies.

       On May 31, 2012, Voegel filed a motion to suppress evidence, which sought a ruling

that would exclude from evidence the contents of his statements to Sergeant Faber during his

interview on October 14, 2011. In his motion and during the June 29, 2012 hearing on the

motion, Voegel contended that though he properly waived his Miranda rights, his statements

admitting to criminal conduct as to Co.B. and Ch.B. were not voluntarily given because he

was suffering from unmedicated bipolar disorder, depression, and anxiety. Voegel argued

that Sergeant Faber took advantage of these conditions and his isolation from Bertram to

obtain a coerced confession. On July 16, 2012, the trial court denied the motion to suppress.

       During an August 16, 2012 hearing on motions in limine, Voegel informed the trial

court that he intended to elicit testimony from Co.B. concerning a prior incident of

molestation that had been perpetrated by another individual in Hendricks County. The trial

court ultimately denied Voegel’s in limine request for a ruling permitting him to elicit such

testimony, and instead ruled that Voegel could introduce as an offer of proof court records as

evidence of the prior molestation.

       A jury trial was conducted from August 20, 2012 to August 22, 2012. At its

conclusion, the jury found Voegel guilty of two counts of Child Molesting, as Class A


                                              4
felonies; two counts of Child Molesting, as Class C felonies; two counts of Child

Solicitation, as Class D felonies; one count of Dissemination of Matter Harmful to a Minor,

as a Class D felony; and two counts of Obscene Performance, as Class A misdemeanors. A

sentencing hearing was conducted on September 12, 2012, at the conclusion of which Voegel

was sentenced to an aggregate term of imprisonment of thirty-eight years.

       This appeal ensued.

                                 Discussion and Decision

                          Voluntariness of Voegel’s Confession

       Voegel first contends that the trial court abused its discretion when it admitted into

evidence the incriminating statements he made during his interview with Sergeant Faber. We

review the trial court’s rulings on the admissibility of evidence for an abuse of discretion,

which occurs when the court’s decision is contrary to the logic and effect of the facts and

circumstances before it. Kelley v. State, 825 N.E.2d 420, 424 (Ind. Ct. App. 2005). “When

reviewing a challenge to the trial court’s decision, we examine the record for substantial,

probative evidence of voluntariness; we do not reweigh the evidence.” Horan v. State, 682

N.E.2d 502, 510 (Ind. 1997).

       Where, as here, a defendant challenges the admissibility of his confession, the State

must prove beyond a reasonable doubt that the giving of the confession was voluntary.

Jackson v. State, 735 N.E.2d 1146, 1153 (Ind. 2000). Upon appellate review of a trial court’s

decision to admit a confession into evidence, we look to the totality of the circumstances

surrounding the defendant’s confession. Id. Our inquiry focuses on whether the confession


                                             5
was given freely and voluntarily and was not induced by violence, threats, promises, or other

improper influences, and we will uphold the admission of a confession into evidence if there

is substantial evidence of probative value to support the trial court’s decision. Id. at 1153-54.

“Promises of leniency render a statement involuntary, but vague statements that the defendant

benefits by cooperating and telling the real story do not constitute sufficient promises.”

Fields v. State, 679 N.E.2d 1315, 1320 (Ind. 1997).

       While the intelligence, education, and mental capacity of the defendant are among the

factors to be considered in determining whether a confession is admissible, lower intelligence

or education or mental illness alone are not enough to render a confession involuntary and

therefore inadmissible. Jackson, 735 N.E.2d at 1154. Rather, there must be some police

misconduct associated with obtaining the confession before there is any “‘basis for

concluding that any state actor has deprived a defendant of due process of law.’” Id. (quoting

Rhodes v. State, 698 N.E.2d 304, 308 (Ind. 1998)). Thus, absent police conduct with a

causal connection to the confession, there is no basis for concluding that a confession was

not voluntarily given. Id.

       Here, Voegel points to his relative lack of education and mental illness as informing

the circumstances of his confession during his interview with Sergeant Faber. Voegel also

points to exchanges between him and Sergeant Faber during the interview, where Sergeant

Faber made what Voegel admits were “vague” promises of help. Fields, 679 N.E.2d at 1320;

Appellant’s Br. at 16. Voegel nevertheless insists that “[h]is will was overborne” because he

“needed his partner … but could not leave the arena until the game was over,” and thus his


                                               6
confession was involuntary under the totality of the circumstances. (Appellant’s Br. at 16.)

       We cannot agree. To the extent that Voegel’s argument seeks that we reweigh the

evidence before the trial court, we decline his invitation to do so. See Horan, 682 N.E.2d at

510.

       Under the relevant case law, our inquiry centers on whether police misconduct is the

cause of a defendant’s waiver of Miranda rights or confession, or whether the defendant was

otherwise incapable of providing a voluntary confession.           The interview itself ran

approximately four hours, during which Sergeant Faber offered Voegel several breaks to use

a restroom, smoke, or get a drink of water. Voegel does not contend that Sergeant Faber

made inappropriate promises of leniency or otherwise engaged in inappropriate interview

techniques. Rather, Sergeant Faber made less specific statements, such as telling Voegel that

individuals who admitted to their offenses were able to receive psychiatric treatment. She

also told Voegel that she tended to believe Co.B. and believed that something happened

between him and Voegel, and told Voegel that she understood that his life as a gay man was

difficult and not one that he chose. To the extent Voegel points to all this to contend that he

was overmatched by Sergeant Faber’s preparation and skill in conducting the interview, none

of this amounts to any form of police misconduct. Thus, we cannot conclude that the trial

court erred in its conclusion that Sergeant Faber appropriately conducted the interrogation or

that Voegel’s will was overcome in the manner required by law to render the confession

involuntary.

       Voegel also does not establish any basis upon which we may conclude the trial court


                                              7
erred in concluding that he was not so mentally ill as to lack the capacity to provide a

voluntary confession. Sergeant Faber, who had conducted nearly five-hundred interviews in

child abuse investigations, testified that Voegel never appeared unable to understand her

questions, consistently provided responses that appropriately tracked her queries, and never

became overly distraught. Despite Voegel’s repeated statements during the interview that he

felt like he might have a nervous breakdown, Sergeant Faber testified that Voegel remained

calm and collected throughout most of the interview. Sergeant Faber described as typical the

progress of her interview with Voegel. Moreover, this Court’s review of the video recording

of the interview does not reveal Voegel to be in an apparently agitated state.

       Under these circumstances, we cannot conclude the trial court abused its discretion

when it concluded that the State had proved beyond a reasonable doubt that Voegel’s

confession was voluntary, and thus we find no error in the court’s admission of Voegel’s

confession into evidence at trial.

                       Exclusion of Prior Sexual Conduct Evidence

       Voegel also contends that the trial court erred when, after initially ruling such

evidence was admissible, it ultimately excluded from evidence certain information

concerning Co.B.’s sexual history. Voegel argues that Co.B. gained knowledge of sexual

matters as a result of prior molestation by another individual, and that this raises doubts

concerning Co.B.’s accusations against Voegel.

       Evidence Rule 412 governs the admissibility of evidence related to the prior sexual

experiences of an alleged victim of a sex crime. Rule 412 and a pair of common-law


                                             8
exceptions to the rule broadly proscribe the admission of such evidence, except in a few

narrow circumstances; the parties agree on appeal that none of those circumstances applies in

the present case.    Rather, Voegel contends that the effect of Rule 412 in his case

impermissibly infringed upon his right to cross-examine witnesses under the Sixth

Amendment to the United States Constitution and Article 1, Section 13 of the Indiana

Constitution.

       The Sixth Amendment to the United States Constitution provides, in relevant part,

“[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the

witnesses against him.” This right is made obligatory upon the States by the Fourteenth

Amendment. Howard v. State, 853 N.E.2d 461, 464 (Ind. 2006). “The essential purpose of

the Sixth Amendment right of confrontation is to ensure that the defendant has the

opportunity to cross-examine the witnesses against him.” Id. at 465. This right “is

fundamental and essential to a fair trial,” and includes the right to ask questions in an effort

to undermine the State’s case, as well as to impeach the credibility of witnesses. Id.

       Yet the right to cross-examine witnesses “‘guarantees an opportunity for effective

cross-examination, not cross-examination that is effective in whatever way, and to whatever

extent, the defense might wish.’” Oatts v. State, 899 N.E.2d 714, 722 (Ind. Ct. App. 2009)

(quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). Nor is the right otherwise absolute;

it “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal

trial process.” Id. (internal quotations and citations omitted). Recognizing that the right to

cross-examine witnesses may be infringed upon by Evidence Rule 412, our supreme court


                                               9
has held that the constitutionality of the Rule “‘is subject to examination on a case by case

basis.’” Id. (quoting Williams v. State, 681 N.E.2d 195, 201 (Ind. 1997)).

       Here, Voegel contends that the trial court erred when it ruled against evidence he

proffered of a prior molestation, of which Co.B. was the victim. Voegel pursued a ruling in

limine on the admissibility of the evidence, which the trial court denied. The trial court ruled

that while it would permit an offer of proof on the matter, it would not permit Voegel to call

Co.B. to testify about the prior incident of molestation. Instead, the trial court ruled it would

permit Voegel to introduce court records related to the prior incident in order to preserve a

record for appeal.

       Voegel contends that while this evidence does not fall within the exceptions to the

rape shield rule as set forth in Evidence Rule 412, the operation of the Rule and the trial

court’s ruling on the proffered evidence deprived him of his right to confrontation under the

United States and Indiana Constitutions.

       We disagree on two grounds. First, Voegel did not make an offer of proof during the

trial of even the reduced scope permitted by the court’s ruling in limine. He has therefore

waived the matter on appeal. See Young v. State, 746 N.E.2d 920, 924 (Ind. 2001)

(“[f]ailure to make an offer of proof of the omitted evidence renders any claimed error

unavailable on appeal unless it rises to the level of fundamental error”).

       Second, assuming without deciding that the trial court’s decision was in error, Voegel

has failed to establish how that decision would have amounted to fundamental error. “To

constitute fundamental error, the ‘defendant must show that the error was a substantial and


                                               10
blatant violation of basic principles which rendered the result of the trial unfair.’” Id.

(quoting Roach v. State, 695 N.E.2d 934, 942 (Ind. 1998)). Had Voegel made the limited

offer of proof permitted by the trial court, exclusion from evidence of the simple fact of a

prior incident of molestation by another person would not have so prejudiced Voegel’s

fundamental rights as to render the result of his trial unfair. And even under the broader set

of facts Voegel presented to the trial court in limine—that Co.B. had been previously

molested, and that the prior molestation had occurred in a bed—did not correspond in

sufficient detail to the numerous events to which Co.B. testified at Voegel’s trial, including

the use of pornographic videos and various items of sexual paraphernalia, as to make the

exclusion of the details of the prior incident so prejudicial as to raise the specter of

fundamental error here. See Oatts, 899 N.E.2d at 722 (recognizing that the strictures of

Evidence Rule 412 may, in some circumstances, yield to the right of confrontation).

       We thus conclude that Voegel has waived for purposes of appellate review his

confrontation claims, and has also failed to demonstrate that any error associated with this

claim was so fundamental as to have rendered the result of his trial unfair.

                                        Conclusion

       The trial court did not abuse its discretion when it concluded that Voegel’s confession

was given voluntarily.     Voegel has waived his confrontation claim concerning the

admissibility of certain evidence otherwise excluded under Evidence Rule 412, and has

further failed to establish fundamental error arising from the trial court’s exclusion of that

evidence.


                                             11
      Affirmed.

NAJAM, J., and BARNES, J., concur.




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