Opinion
24A-CR-88
10-15-2024
Kevin Patrick Arthur, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Talisha R. Griffin Joshua Vincent Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Jeffrey L. Marchal, judge Trial Court Cause No. 49D31-2010-F1-32249
ATTORNEYS FOR APPELLANT
Talisha R. Griffin Joshua Vincent Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Indiana Attorney General
Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
ALTICE, CHIEF JUDGE
Case Summary
[¶1] Following a jury trial, Kevin Patrick Arthur was convicted of four counts of Level 1 felony child molesting, two counts of Level 4 child molesting, one count of Level 6 battery, and two counts of Class A misdemeanor intimidation. Arthur challenges only his convictions for child molesting and battery, which involved offenses against S.R. He argues that several statements made by the State during closing argument constituted prosecutorial misconduct that rose to the level of fundamental error.
[¶2] We affirm.
Facts & Procedural History
[¶3] S.R. was born in March 2009, and she has an intellectual disability. Sometime after she turned seven years old, Arthur began a romantic relationship with S.R.'s mother (Mother). S.R. described that she was younger than ten and "[p]robably in fifth grade" when Arthur moved into the Indianapolis apartment where she lived with her sister, S.F., and Mother. Transcript Vol. 4 at 49. The four later moved into a house in Indianapolis. S.R., whose biological father (Father) had been out of her life for a long time due to incarceration, came to call Arthur "Dad." Id. at 104.
[¶4] In February 2020, S.R. disclosed to a close friend at school that she was being sexually abused by Arthur. S.R. was scared and asked her friend not to tell anyone, but the friend reported the disclosure and the school became involved. As a result, someone from the Indiana Department of Child Services (DCS) came to the school and spoke with S.R. At the time, S.R. provided details of the abuse but claimed that it was Father, not Arthur, who had sexually abused her.
[¶5] In June 2020, S.R.'s maternal grandmother (Grandmother) made a report to DCS about physical abuse of someone other than S.R. Lauren McClellan, a DCS assessment worker, investigated the report and interviewed S.R. on June 24. That same afternoon, Arthur sent a series of text messages to Grandmother along with a picture of a kitchen table covered with various weapons, including a rifle, knives, axes, and a bow with arrows. Arthur stated in part: "Everything i need to put a stop to you all running your mouths and threatening my life. Come near my house and your mine .. Show up and I will kill you lets make that clear .. show up and you will be hurt no f**king joke lady you started this sh*t not me you did[.]" Exhibits at 4-9 (errors in original).
[¶6] After attempting suicide days later, S.R. was placed at Harsha, a mental health facility in Terre Haute, for about two weeks. In the meantime, DCS removed S.F. from Mother and Arthur's home and placed her with Grandmother. Upon her release from Harsha in mid-July, S.R. was transported by Jodi Lloyd, her DCS family case manager, to Grandmother's home where S.R. was to live along with S.F.
[¶7] On July 28, 2020, FCM Lloyd took S.R. and S.F. for well child visits with a pediatrician. While alone with the doctor, S.R. disclosed having been sexually abused by Arthur. FCM Lloyd was then brought into the room where S.R. and the doctor related this information to her. Thereafter, on August 3, S.R. submitted to a forensic child interview with McClellan at the Child Advocacy Center, where S.R. "disclosed several incidents of sexual abuse" by Arthur. Transcript Vol. 3 at 207.
[¶8] The Indianapolis Metropolitan Police Department (IMPD) then became involved in the investigation. Detective Jonathan Schultz with IMPD's Child Abuse Unit conducted another forensic child interview with S.R. on August 19, during which S.R. detailed Arthur's sexual abuse of her. On September 8, Detective Schultz reached out to Arthur by phone and left a voicemail message regarding the investigation. Arthur responded by leaving vulgar voicemail messages for Schultz. When they eventually talked over the phone on September 10, Arthur threatened to "kick [Schultz's] ass" if he showed up on Arthur's street. Transcript Vol. 4 at 40.
[¶9] On October 20, 2020, the State charged Arthur with ten counts: Count I, Level 1 felony child molesting; Count II, Level 4 felony child molesting; Count III, Class A misdemeanor intimidation (of S.R.); Count IV, Level 1 felony child molesting; Count V, Level 1 felony child molesting; Count VI, Level 6 felony battery on a person less than fourteen years of age; Count VII, Level 1 felony child molesting; Count VIII, Level 1 felony child molesting; Count IX, Class A misdemeanor intimidation (of Grandmother); and Count X, Class A misdemeanor intimidation (of Detective Schultz).
[¶10] Arthur was tried by a jury in November 2023. From the start, the defense tried to paint S.R. as "a very troubled girl" and an admitted liar. Transcript Vol. 3 at 191. During his opening statement, Arthur noted that "the details you are going to hear have changed multiple times in [S.R.'s] multiple interviews" and that while the jury "should be" sympathetic to S.R., it had to put that aside and "judge her credibility and determine whether the State has proven their case beyond a reasonable doubt." Id. at 192-93.
[¶11] S.R. testified that Arthur sexually abused her daily after moving in with her family. She could only provide a vague timeline indicating that the abuse occurred when she was between the ages of eight and eleven. During her testimony, S.R. detailed several specific accounts of sexual abuse that took place at either the apartment or the house. The abuse included instances of fondling, licking S.R.'s vagina, having her perform oral sex on Arthur until he ejaculated in her mouth, and having her submit to vaginal and anal intercourse, which caused her pain. S.R. noted a time when Arthur talked about her being his girlfriend, and she told him, "I'm not old enough." Transcript Vol. 4 at 80.
S.R. turned eleven a few months before she was removed from Mother and Arthur's home.
[¶12] When asked about her February 2020 disclosure to a friend that she promptly recanted when the school found out and DCS became involved, S.R. explained that she was scared that Arthur would hurt S.F. or Mother. S.R. admitted at trial that because of her fear, she lied to DCS and identified Father, rather than Arthur, as the perpetrator. She noted that Father was in jail and that she had not seen him in a long time.
[¶13] During cross-examination of S.R., Arthur focused on her February 2020 representation to DCS that she had lied to her friend regarding the identity of her abuser. S.R. clarified that she had lied to DCS, not her friend. When asked why she continued to identify Father as her abuser during her treatment at Harsha following her suicide attempt, S.R. explained that she continued to not tell anyone about Arther because S.F. "still lived there." Id. at 109. S.R. acknowledged that she told treatment providers at Harsha "lots of bad stuff" about Father that was not true. Id. at 110.
[¶14] Finally, Arthur asked S.R. about a discrepancy between her trial testimony and something she said during the forensic interview with Detective Schultz. This had to do with one specific incident that occurred when S.R. was taking a shower with her cat. S.R. testified that Arthur came in and sexually abused her in the bathroom but "not in the shower." Id. at 113. When asked, "But you told the detective it was in the shower?", S.R. replied, "I knew he done it to me, but I don't know if it was in the shower or out of the shower." Id. at 113-14.
S.R.'s forensic interviews were not admitted into evidence at trial, but a small portion of the interview with Detective Schultz was read into the record regarding this incident. No other discrepancies between S.R.'s trial testimony and her forensic interviews in August 2020 were raised by Arthur at trial.
[¶15] On re-direct, S.R. reiterated that she remained scared even when away from Arthur at Harsha because she believed S.F. was still living with Arthur and he might hurt S.F. S.R. responded affirmatively when asked, "But [Arthur] said different things to you about people being hurt if you told?" Id. at 116. S.R. indicated that she was not ready to disclose Arthur's abuse, except to her friend, until her doctor's appointment on July 28, 2020. S.R. "felt safe" telling the doctor. Id. at 77.
[¶16] Prior to S.R.'s testimony, Detective Schultz testified based on his training and experience that delayed disclosure is "very common" in child abuse cases. Id. at 44. He listed reasons why a child might not immediately disclose abuse, including fear, shame, still living with the perpetrator, or not realizing the acts are wrong.
[¶17] At the close of the State's case, Arthur moved for a directed verdict on Counts II, III, and VI. The trial court granted the request only as to Count III, the intimidation charge involving S.R. Arthur then rested his case without presenting evidence. The jury found Arthur guilty of the remaining nine counts, and the trial court subsequently sentenced him to a total of forty years in prison.
[¶18] Arthur now appeals, challenging his convictions relating to S.R. and not the intimidation convictions under Counts IX and X. Additional information will be provided below as needed.
Discussion & Decision
[¶19] Arthur's sole argument on appeal is that several statements made by the State during its closing and rebuttal arguments amounted to prosecutorial misconduct because the statements invited the jury to convict him based on his character and sympathy for S.R. rather than on the evidence presented. See Cooper v. State, 854 N.E.2d 831, 837 (Ind. 2006) (observing that it is misconduct for the State to request the jury to convict for any reason other than the defendant's guilt). Acknowledging that he failed to properly preserve his various claims of misconduct at trial, he contends that the improper statements rose to the level of fundamental error.
Arthur failed to object at all to some of the statements, objected on a different ground than that asserted on appeal to others, and at no point requested an admonishment or moved for a mistrial.
[¶20] When reviewing a claim of prosecutorial misconduct properly raised in the trial court, we determine (1) whether misconduct occurred, and if so, (2) whether the misconduct, under all the circumstances, placed the defendant in a position of grave peril to which he would not have been otherwise subjected. Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) ("A prosecutor has the duty to present a persuasive final argument and thus placing a defendant in grave peril, by itself, is not misconduct."). We measure the gravity of peril by the probable persuasive effect of the misconduct on the jury's decision rather than the degree of impropriety of the conduct. Id.
[¶21] "To preserve a claim of prosecutorial misconduct, the defendant must-at the time the alleged misconduct occurs-request an admonishment to the jury, and if further relief is desired, move for a mistrial." Id.; see also Cooper, 854 N.E.2d at 835 ("Failure to request an admonishment or to move for mistrial results in waiver.").
[¶22] Where a claim of prosecutorial misconduct has been waived, a defendant must establish not only the grounds for prosecutorial misconduct on appeal but also that the misconduct constituted fundamental error. Ryan, 9 N.E.3d at 667-68.
Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant's rights as to make a fair trial impossible. In other words, to establish fundamental error, the defendant must show that, under the circumstances, the trial judge erred in not sua sponte raising the issue because alleged errors (a) constitute clearly blatant violations of basic and elementary principles of due process and (b) present an undeniable and substantial potential for harm.... In evaluating the issue of fundamental error, our task in this case is to look at the alleged misconduct in the context of all that happened and all relevant information given to the jury-including evidence admitted at trial, closing argument, and jury instructions-to determine whether the misconduct had such an undeniable and substantial effect on the jury's decision that a fair trial was impossible.Id. at 668 (emphasis in original; internal quotation marks and citations omitted).
[¶23] In sum, fundamental error provides a means to correct only the "most egregious and blatant trial errors that otherwise would have been procedurally barred[.]" Id. Our Supreme Court has recognized that prevailing on a claim of fundamental error relating to prosecutorial misconduct is "highly unlikely[.]" Id. (quoting Baer v. State, 942 N.E.2d 80, 99 (Ind. 2011)).
[¶24] Arthur first argues that the State invited the jury to infer guilt based on his character rather than the evidence. In this regard, Arthur notes that when discussing Count IX, the intimidation count involving his threatening text messages to Grandmother that included a picture of weapons, the State commented: "But this is the Defendant showing you who he is. Showing you his character. Threatening the grandma." Transcript Vol. 4 at 136. Arthur argues that the State later improperly "connected Arthur's character with the other charges, inviting the jury to 'imagine what he's like at home.'" Appellant's Brief at 13 (quoting Transcript Vol. 4 at 138). The State continued this line of argument:
Ladies and gentlemen of the jury, you're able to take the evidence presented to you and make inferences. When you see the threat of Kevin Arthur, he's telling you exactly who he is by sending that picture to [Grandmother]. You're able to think about what he's like when he's home.Transcript Vol. 4 at 139.
[¶25] Arthur objected below, but not on the grounds he now asserts on appeal. That is, he objected that the State was "arguing and inferring threats that they don't have any evidence to back up." Id. In overruling the objection, the trial court stated: "And I'll remind everybody, as they've been instructed, statements by the attorneys are not evidence.... This is the opportunity to attempt to persuade you to a particular verdict. And you can accept or reject those arguments." Id.
[¶26] Now on appeal, Arthur asserts that the State's "request for the jury to consider [his] character and then infer what he was like 'at home' cannot be understood as anything other than a request that the jury find [him] guilt[y] of child molest and battery based on his character." Appellant's Brief at 15. We do not agree.
[¶27] Arthur's appellate argument overlooks the context in which the State invited the jury to imagine what he was like at home. Immediately before the contested statements, the State argued:
And in February 2020, S.R.'s at school. And in a moment where she feels safe with a friend, that she said that she felt close to, she discloses about being sexually assaulted by [Arthur]. But what S.R. was not ready for at that moment was the investigation. So when DCS gets involved, she says it's her dad. And at that time, she has not been removed from her mom. She's still living with [Arthur]. And she told you she was too scared to get [him] in trouble. She's still in his home.
Fast forward to June 2020.[Grandmother] is reporting them for a separate investigation. DCS is getting involved. [Arthur] is starting to threaten [Grandmother]. And S.R. does her final cry for help. She is hearing drama about her mom and grandma. And all she knows is she wants out. And she does the unthinkable. At 11 years old, she attempts suicide because to her being dead was better than living with that man. But thankfully, she did not succeed. And she was able to go to Harsha and get the help that she needs.
And every day there without even realizing it she was getting stronger and stronger. She's still too scared to tell about [Arthur] because her sister is still home. But when she gets out of Harsha, she finds out she gets to go live with [Grandmother] and so does her sister. And her sister's there.
A couple of weeks later, July 28th, 2020, she's at a doctor's office feeling safe and secure. And 11 year old S.R. tells Dr. Pryor, no, I don't feel safe with [Arthur] and that she's being molested. And from that point on, she's been consistent.
So on February 2020, she essentially tests out her disclosure. But she's not safe enough to fully tell. She's too scared.Transcript Vol. 4 at 137-38. The State then stated: "And look at those pictures of weapons. If he's texting [Grandmother] pictures of weapons imagine what he's like at home." Id. at 138.
[¶28] When read in context, it is clear the State was not arguing that because Arthur threatened Grandmother, he is likely also to be a child molester, which would be an improper propensity argument under Ind. Evid. Rule 404(B). Rather, in referencing the threats to Grandmother, which occurred while S.R. was still in Arthur's home, the State was attempting to explain why S.R. was too scared to disclose the abuse until after she and her sister were both safely out of his home.
[¶29] Moreover, even assuming the State's invitation to the jury to infer Arthur's demeanor at home from his threatening messages to Grandmother was improper, we do not find that these brief statements had such an undeniable and substantial effect on the jury's decision that a fair trial was impossible. S.R. herself separately testified to Arthur's threatening behavior at home and her fear for the safety of S.F. if S.R. disclosed his abuse.
For example, S.R. testified that Arthur had said that "[h]e was going to hurt my dog." Transcript Vol. 4 at 90. And in addition to repeatedly testifying that fear for her sister's safety kept her from disclosing the abuse earlier, S.R. responded affirmatively when asked by the State, "But [Arthur] said different things to you about people being hurt if you told?" Id. at 116.
[¶30] Arthur also argues that the State repeatedly invoked sympathy for S.R. in imploring the jury to believe her testimony. In this regard, he directs us to the first part of the State's closing argument:
S.R. is a survivor. She came in here today. A 14-year old girl with her hair in a braid, with a bow, and faced her abuser the Defendant Kevin Arthur. She came in here and took the power that he had over her away. She came in here and told you that he molested her over and over and over again. He used that power and control every day.Id. at 130-31. Arthur then notes that the State continued throughout its closing argument to refer to S.R. in sympathetic terms: "little girl," "little S.R." and "scared little girl." Id. at 131, 137, 142. Arthur also suggests that the invitations to imagine what he's like at home based on the threats to Grandmother were another attempt to invoke sympathy for S.R. Finally, he directs us to a portion of the State's rebuttal argument:
I agree with Defense on one thing and that's that none of this is S.R.'s fault. And it's not S.R.'s fault. But we are placing just a little bit of blame on S.R. when we say, if you come to your school, and you tell a friend what happened to you. And then
you're scared and you're worried. And you're trying to protect the person that you call Dad in your house. So you say that it was someone else in order to keep yourself safe then it basically is your fault. Right? Because -
****
If you cover for someone because you feel unsafe or you feel that other people are unsafe, and then you decide to tell the truth when you're ready to disclose later, no one's going to believe you.Id. at 154, 155.
[¶31] In arguing that the above comments improperly invoked sympathy for S.R., Arthur relies on Thornton v. State, 25 N.E.3d 800 (Ind.Ct.App. 2015). In that case, this court observed in dicta that the following argument by the State was improper and should be avoided on retrial:
K.W. was brave enough to follow through. Most women don't. Why? Because they're made to feel like they're on trial. We treat them like they're criminals, when they have the courage to say no way. I can't let this go on. She followed through every step of the way and came here to you guys this week to face everybody in here and told you her story.Id. at 806. On rebuttal, the State added, "something I want you to consider is that we re-victimize these people who come forward with rape." Id. In summary fashion, the Thornton court said that the argument was improper because a "prosecutor may not request that a jury convict a defendant for any reason other than his guilt," because it "is improper for a prosecutor to invoke sympathy for a victim as a basis for conviction," and because "a prosecutor may not urge a jury to convict a defendant to encourage other victims to come forward." Id.
[¶32] Importantly, the Thornton court did not address whether the improper argument placed Thornton in a position of grave peril or whether it constituted fundamental error. Another key distinction is that the argument in Thornton was not tied to any issue in the case. That is, the victim's credibility was not at issue in that case, and the State was simply urging the jury to consider the victim's interests and to render a verdict that would encourage other victims to come forward.
[¶33] Here, S.R.'s credibility was the central issue at trial. Rather than generally seeking sympathy for S.R., the State tied its arguments to explaining why S.R. lied about the identity of her abuser until she was out from under Arthur's roof. The State argued that she was a scared little girl, under Arthur's daily power and control while being abused, and worried about the safety of others if she disclosed the abuse. The challenged statements were tied to the evidence and were responses to allegations or inferences raised by the defense. See Ryan, 9 N.E.3d at 669 ("Prosecutors are entitled to respond to allegations and inferences raised by the defense even if the prosecutor's response would otherwise be objectionable.").
The defense argued that S.R. was clearly a "troubled girl" who admitted that she lied multiple times before her July 2020 disclosure. Transcript Vol. 4 at 143. It also suggested that S.R. was either molested by her biological father, whom she first identified as her abuser, or she completely fabricated the story, "blaming her biological father out of supposed fear." Id. The defense concluded its closing argument: "I'm confident that when it's all said and done you'll see that none of this is S.R.'s fault, but that the State hasn't met their burden. They didn't do the work. They don't have the case." Id. at 148.
[¶34] Even if some of the State's statements improperly invoked sympathy for S.R., Arthur is not able to fit any such misconduct into the extremely narrow exception for fundamental error. Arthur himself recognized during his opening statement and closing argument that the jury would have sympathy for S.R., but he correctly told the jury that it would have to put sympathy aside, look only to the facts, and hold the State to its burden. Prior to deliberations, the trial court instructed the jury, among other things, that "statements made by the attorneys are not evidence" and that the jury's verdict "should be based on the law and the facts as you find them" and "should not be based on sympathy or bias." Transcript Vol. 4 at 162. "One remedy for prosecutorial misconduct is to admonish the jury, and these final jury instructions accomplished the same ends" here. Jerden v. State, 37 N.E.3d 494, 500 (Ind.Ct.App. 2015) (internal citation omitted).
[¶35] Judgment affirmed.
Bailey, J. and Mathias, J., concur.