Pursuant to Ind. Appellate Rule 65(D), 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:

BERNICE A. N. CORLEY                               GREGORY F. ZOELLER
Appellate Panel Attorney                           Attorney General of Indiana
Marion County Public Defender
Indianapolis, Indiana                              IAN McLEAN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                                                                          Sep 11 2014, 9:03 am


                               IN THE
                     COURT OF APPEALS OF INDIANA

THOMAS BOOKER,                                     )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )    No. 49A02-1402-CR-107
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Sheila A. Carlisle, Judge
                          The Honorable Stanley E. Kroh, Magistrate
                              Cause No. 49G03-1310-FB-65733



                                       September 11, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       A jury convicted Thomas Booker of class B felony criminal deviate conduct stemming

from his sexual assault of a partially paralyzed stroke victim. He now appeals, challenging

the sufficiency of the evidence to support his conviction and claiming that fundamental error

occurred when the trial court admitted certain statements that he made to police. We affirm.

                              Facts and Procedural History

       In 2013, forty-nine-year-old B.M. suffered a stroke, which left her speech-impaired,

paralyzed on her left side, and wheelchair-bound. After a lengthy hospital stay, she was

transferred to Rosewalk Village (“Rosewalk”) skilled nursing facility in Indianapolis for

rehabilitation. During her three-month stay at Rosewalk, her adult son Kendall often visited

her. During one visit, Kendall encountered Booker, whom he and B.M. had known as an

acquaintance from church. Booker explained that his wife was a patient at Rosewalk, and he

asked the location of B.M.’s room. Thereafter, Booker visited with Kendall and B.M. from

time to time.

       Between 9:00 and 10:00 p.m. on Friday, October 4, 2013, after B.M. had been tucked

in by Rosewalk staff, Booker entered her room. She awoke to find Booker sitting on her bed.

Booker touched her breasts and digitally penetrated her vagina, and she asked him to stop and

to leave. At first, he did not stop. She then told him that Kendall was due to arrive soon, and

he left.

       The next day, B.M. reported the incident to Rosewalk personnel. By Sunday, Kendall

was aware of the incident. When he came to visit his mother, he saw Booker and confronted


                                              2
him. He told a Rosewalk employee to call the police because Booker was the person who

had assaulted his mother. When Booker attempted to get to his vehicle to leave, Kendall

took his keys from him. Booker then pled with Kendall to give him the keys because the

police were on their way. When Kendall refused, Booker fled to a nearby building, where

police apprehended him.

       Footage from a hallway surveillance camera showed Booker entering B.M.’s room on

the night of the assault. During an interrogation, Booker admitted to Detective Michael

Hewitt that he had entered B.M.’s room that night.

       The State charged Booker with class B felony criminal deviate conduct and class D

felony sexual battery. A jury convicted him of class B felony criminal deviate conduct, and

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

                                 Discussion and Decision

                           Section 1 – Sufficiency of Evidence

       Booker challenges the sufficiency of the evidence to support his conviction for

criminal deviate conduct. When reviewing a challenge to the sufficiency of evidence, we

neither reweigh evidence nor judge witness credibility. Drane v. State, 867 N.E.2d 144, 146

(Ind. 2007). Rather, we consider only the evidence and reasonable inferences most favorable

to the verdict and will affirm the conviction “unless no reasonable fact-finder could find the

elements of the crime proven beyond a reasonable doubt.” Id.

       To convict Booker of class B felony criminal deviate conduct, the State was required

to establish beyond a reasonable doubt that he “knowingly or intentionally [caused] [B.M.] to


                                              3
perform or submit to deviate sexual conduct when [she was] compelled by force or imminent

threat of force.” Ind. Code § 35-42-4-2(a)(1) (1998).1 The presence or absence of forceful

compulsion is to be viewed “from the victim’s perspective, not the assailant’s.” Tobias v.

State, 666 N.E.2d 68, 72 (Ind. 1996). In other words, the issue is “whether the victim

perceived the aggressor’s force or imminent threat of force as compelling her compliance.”

Id.

        Booker first asserts that the evidence is insufficient to support the element of forceful

compulsion. In this vein, he alleges that because B.M. neither pushed him away nor pressed

the nurse’s call button, there is no evidence that she was forcibly compelled to submit.

B.M.’s ability to physically resist Booker as he digitally penetrated her vagina and fondled

her breasts must be evaluated in light of her drowsy condition and her physical limitations.

She is a wheelchair-bound stroke victim with paralysis on her left side. Her stroke also left

her with impaired speech, which she described as “slower” and which the transcript shows to

be low in volume. Tr. at 52. She was asleep in her room for the night when she awoke to

find Booker sitting on her bed. Her condition impaired her ability to push him away, press

alert buttons, or adequately project her voice to scream for help. She did manage to tell

Booker to stop and to leave. He did not. Instead, he stood up and began to unfasten his

pants. He left only after she lied and told him that her son would be arriving soon. At trial,

she testified that she lied to Booker so that he would leave. Id. at 66-67. Based on this



        1
          “Deviate sexual conduct” is an act involving “the penetration of the sex organ or anus of a person by
an object.” Ind. Code § 35-31.5-2-94(2) (2012). A finger is an object for purposes of defining deviate sexual
conduct. Harwood v. State, 555 N.E.2d 513, 515 (Ind. Ct. App. 1990).

                                                      4
evidence, the jury could reasonably infer that B.M. felt forcibly compelled to submit to

Booker’s advances.

       Additionally, Booker characterizes B.M.’s testimony as dubious and asks that we

impinge upon the jury’s function to judge her credibility by applying the “incredible

dubiosity” rule, which states,

       If a sole witness presents inherently improbable testimony and there is a
       complete lack of circumstantial evidence, a defendant’s conviction may be
       reversed. This is appropriate only where the court has confronted inherently
       improbable testimony or coerced, equivocal, wholly uncorroborated testimony
       of incredible dubiosity. Application of this rule is rare and the standard to be
       applied is whether the testimony is so incredibly dubious or inherently
       improbable that no reasonable person could believe it.

Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007) (citations and quotation marks omitted).

       Booker characterizes inconsistencies in B.M.’s pretrial statements and trial testimony

as rendering her account inherently improbable and equivocal. For example, he claims that

she equivocated concerning the position of the door to her room. Any equivocations are

irrelevant given the surveillance video showing that Booker entered her room. Booker also

cites inconsistencies in B.M.’s testimony about whether he was in the act of digitally

penetrating her vagina when she awoke or whether he did so right after she awoke. This

minor inconsistency does not implicate whether he digitally penetrated her. Likewise, B.M.’s

testimony concerning whether Booker had unzipped his pants or had merely begun to

unfasten his pants is a minor inconsistency that does not negate an element of the offense of

which he was convicted.




                                              5
       Moreover, the incredible dubiosity rule applies only where there is a complete lack of

circumstantial evidence. Here, the hallway surveillance camera footage showed Booker

entering B.M.’s room at a time and date that corroborated her account of the assault. Also,

Kendall’s testimony concerning his encounter with Booker shows Booker’s consciousness of

guilt. B.M. reported the Friday night assault to Rosewalk staff the day after it happened.

That Sunday, Kendall was aware of the assault and confronted Booker at Rosewalk. He

instructed a Rosewalk employee to “call the police because this is him.” Tr. at 112. When

Booker attempted to leave, Kendall took his keys and accused him of assaulting his mother.

Booker never denied the accusations but instead pled with Kendall to give him his keys so

that he could leave before police arrived. When Kendall refused, Booker fled to a nearby

building. “Flight shows consciousness of guilt.” Tuggle v. State, 9 N.E.3d 726, 736 (Ind. Ct.

App. 2014), trans. denied.

       Based on the foregoing, we conclude that B.M.’s testimony is neither inherently

improbable nor lacking in corroboration. Thus, the incredible dubiosity rule is inapplicable,

and we must decline Booker’s invitation to reweigh evidence and judge credibility. The

evidence most favorable to the verdict is sufficient to support his conviction.

                             Section 2 – Admission of Evidence

       Booker also maintains that the trial court committed reversible error in admitting a

statement that he made to Detective Hewitt during interrogation conceding that he went into

B.M.’s room on the night that she was molested. Ordinarily, we review a trial court’s ruling

on the admissibility of evidence using an abuse of discretion standard. Bradford v. State, 960


                                              6
N.E.2d 871, 873 (Ind. Ct. App. 2012). Here, however, Booker failed to object to the

statements at trial. Conceding this failure, he couches his claim in terms of fundamental

error.

         The fundamental error exception [to the contemporaneous objection rule] is
         “extremely narrow, and 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.” The error
         claimed must either “make a fair trial impossible” or constitute “clearly blatant
         violations of basic and elementary principles of due process.” This exception
         is available only in “egregious circumstances.”

Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010) (citations omitted).

         Here, Booker asserts that Detective Hewitt “employed tactics of deceit” to elicit his

admission that he entered B.M.’s room on the night that she was molested and that, as a

result, his admission was not voluntary. Appellant’s Br. at 8. Police deception does not

automatically render a confession inadmissible. Miller v. State, 770 N.E.2d 763, 767 n.5

(Ind. 2002). Rather, police deception during an interview is merely a factor to be considered

as part of the totality of the circumstances. Id.

         Booker claims that Detective Hewitt stretched the truth during his interrogation by

telling him that law enforcement had recovered DNA from his saliva and that there was a

hidden camera inside B.M.’s room. In reality, DNA samples had been taken from B.M.’s

vagina, but no testing had yet been performed. At trial, testimony from the forensics expert

established that while the DNA tests were negative concerning Booker, such a finding was

not inconsistent with B.M.’s account of digital penetration. Moreover, while there was no

hidden camera inside B.M.’s room, the hallway surveillance camera established that Booker


                                                7
entered B.M.’s room on the night that she was molested. Thus, independent evidence

introduced at trial explained the DNA findings and corroborated his admission that he

entered B.M.’s room. Absent any evidence indicating that the interrogation was otherwise

coercive in tone or duration, the record simply does not support Booker’s assertion that his

admission was involuntarily given. In short, he has failed to establish any error, let alone

fundamental error, in the trial court’s admission of his statement to Detective Hewitt.

Accordingly, we affirm.

       Affirmed.

RILEY, J., and MATHIAS, J., concur.




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