Opinion
23A-CR-1329
06-20-2024
Malik Thomas Fikes, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Timothy P. Broden Lafayette, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Tippecanoe Superior Court Trial Court Cause No. 79D01-2302-F3-8 The Honorable Randy Williams, Judge
ATTORNEY FOR APPELLANT Timothy P. Broden Lafayette, 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, Malik Thomas Fikes was convicted of rape as a Level 3 felony. He then pled guilty to unlawful possession of a firearm by a serious violent felon as a Level 4 felony. On appeal, Fikes argues that the trial court erred in admitting indirect vouching testimony. Recognizing that he did not object at trial, Fikes argues that admission of such testimony constitutes fundamental error.
[¶2] We affirm.
Facts & Procedural History
[¶3] Around 3:40 a.m. on November 2, 2022, officers with the Lafayette Police Department were dispatched to investigate a reported sexual assault at an apartment building. Upon arrival, officers observed A.F. come out of the building wearing only a towel and holding an infant in her arms. Fikes then came out of the apartment and briefly squatted down behind a white SUV before encountering the officers. Later, an officer recovered a 9 mm pistol from under the white SUV.
[¶4] Officer Taylor Turner took A.F. back into the apartment where she gave a brief statement about what happened. Officer Turner described A.F. as being "[s]haken up" and "stuttering" with her words. Transcript Vol. II at 162. A.F. told Officer Turner that Fikes had come to her workplace the day before and asked about visiting their two-month-old child. A.F. agreed, and Fikes came to her apartment around midnight. She greeted him with a hug and kiss. According to A.F., Fikes was drunk and appeared as though he was on drugs. He also had a gun in his pocket. At some point during the visit, A.F. asked Fikes to watch the baby so she could take a shower.
[¶5] Shortly after A.F. got in the shower, Fikes undressed and got into the shower behind her. Fikes grabbed A.F. by the back of the neck, kissed her, and told her that she wanted to be with him. A.F. told him that she did not want to be with him, told him no, and told him to get away. Fikes was undeterred and touched A.F.'s breasts. He then grabbed her neck and penetrated her anus with his penis. A.F. repeatedly told Fikes to "get off of" her but Fikes responded, telling her that she wanted this. Transcript Vol. II at 182. A.F. continued to fight against Fikes' advances, but he "just kept on basically just doing what he wanted to do." Id. at 184. Fikes turned A.F. around and inserted his penis into her vagina. He also put his hands around her neck to the point where A.F. could not breathe, her eyes rolled back in her head, and she blacked out. A.F. stated that the next thing she knew was that she heard the baby crying. A.F. then managed to push Fikes away, and she went to comfort the baby.
[¶6] According to A.F., when Fikes got out of the shower, he followed her around the apartment with his gun in his hand. He told A.F. that she wanted to be with him and if she refused, he would shoot everyone in the apartment. At some point, A.F. texted Shaneika Costello, an acquaintance who had been at her apartment earlier that night, and told her that Fikes had raped her, that he had his gun out, and that he was threatening her. In a subsequent phone call to Shaneika, A.F. whispered that she was scared. She also asked Shaneika to call the police, which she did.
[¶7] After giving her statement to Officer Turner, A.F. was transported to a local hospital for a sexual assault examination. At the hospital, A.F. was interviewed by Detective Kurt Sinks, with the special victims unit of the Lafayette Police Department. A.F. was also examined by a nurse, who noted that A.F. had significant redness around her neck. The nurse swabbed A.F.'s neck as well as her anus and vagina for potential evidence. The results of testing by the Indiana State Police Laboratory showed no male DNA on either the vaginal or rectal swabs. Male DNA was found on the swab from A.F.'s neck and showed strong support for inclusion of Fikes as the male contributor.
[¶8] On November 8, 2022, the State charged Fikes with Level 4 felony unlawful possession of a firearm by a serious violent felon. On January 25, 2023, the State filed five additional charges: Level 3 felony rape, Level 6 felony sexual battery, Level 6 felony strangulation, Level 6 felony domestic battery, and Level 5 felony criminal confinement. A jury trial was held May 1-3, 2023. During opening statements, Fikes urged the jury to listen for conflicts between A.F.'s prior statements, her trial testimony, and testimony of other witnesses. In crossexamining Officer Turner, Fikes asked whether he had ever encountered someone who was "fabricating facts in order to have someone be gone," to which he responded affirmatively. Transcript Vol. II at 169. On redirect, the State asked Officer Turner, without objection from Fikes, whether there was any indication that A.F. was fabricating her story when he spoke to her, and he said "no." Id. at 170. Fikes likewise cross-examined the emergency room doctor and the forensic nurse who examined A.F. with questions about whether people sometimes report things that are not true, to which both responded affirmatively.
[¶9] Then, during direct examination of Detective Sinks, the State elicited testimony that he had been involved in hundreds of sexual assault investigations and that it is common for victims of such offenses to have inconsistencies in their stories or even delayed disclosure. He explained that assault victims have increased stress hormones in their body that can lead to impaired brain function that results in "fractured or fragmented memories." Transcript Vol. III 128. When asked to describe A.F.'s demeanor when he encountered her at the hospital, Detective Sinks testified that A.F. had "clearly been through the traumatic event consistent with others that I've interviewed in similar investigations." Id. at 131-32. On redirect, the State asked Detective Sinks if A.F.'s disclosure at the hospital was "consistent with traumatic cases that [he] worked," to which Sinks responded, "Absolutely." Id. at 139. Fikes did not object to this testimony.
[¶10] At the conclusion of the evidence, the jury found Fikes guilty of rape, sexual battery, strangulation, domestic battery, and criminal confinement, and the trial court entered judgments of conviction on each. Fikes then pled guilty to the firearms charge. At a sentencing hearing on June 2, 2023, the trial court vacated all but the rape and firearms conviction and sentenced Fikes to an aggregate term of twenty-three years. Fikes now appeals. Additional facts will be provided as necessary.
Discussion & Decision
[¶11] Fikes claims the State introduced "impermissible indirect vouching testimony" at trial in violation of Ind. Evidence Rule 704(b). Appellant's Brief at 9. Acknowledging that he did not make a contemporaneous objection to the evidence at trial, he contends that the admission of such evidence constituted fundamental error.
[¶12] It is well established that a failure to object when evidence is introduced at trial generally waives the issue for appeal but that we may review such a claim if we determine that fundamental error occurred. Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010). The fundamental error exception, however, 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." Id. (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)). The exception is available only in egregious circumstances, where the claimed error made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process. Id.
[¶13] Fikes argues that Detective Sinks's testimony that A.F.'s pre-trial statements were consistent with his observations in other sexual assault investigations was "tantamount to saying that those statements were truthful and thus amounted to impermissible indirect vouching testimony" in violation of Evid. R. 704(b). Appellant's Brief at 11. Evid. R. 704(b) precludes witnesses from "testify[ing] to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions." The admission of such vouching evidence constitutes an "invasion of the province of the jurors in determining what weight they should place upon a witness's testimony." Guttierrez v. State, 961 N.E.2d 1030, 1034 (Ind.Ct.App. 2012).
[¶14] Fikes's defense was to challenge A.F.'s credibility and point out inconsistencies in her statements about what transpired between her and Fikes. Beginning with opening statements and continuing through his questioning of multiple witnesses, Fikes called A.F.'s credibility into question by repeatedly implying that A.F. fabricated her story.
[¶15] To counter Fikes's argument, the State offered an alternate explanation for the inconsistencies in A.F.'s statement. Specifically, the State, through Detective Sinks, offered that the inconsistencies could have been the result of the trauma A.F. had suffered. This was permissible as Fikes opened the door by challenging A.F.'s credibility and suggesting that she fabricated the events that happened in her apartment. See, e.g., Sampson v. State, 38 N.E.3d 985 (Ind. 2015) (holding that testimony about signs of coaching and whether child abuse victim exhibited such signs was admissible where defendant opened the door to such evidence by claiming that child's behavior was inconsistent with abuse).
[¶16] Even if we assume Detective Sinks's testimony violated Evid. R. 704(b) by inviting the jury to infer that A.F. was telling the truth, we conclude that any such error does not rise to the level of fundamental error. We also note that Fikes does not challenge other testimony that is essentially cumulative of Detective Sinks's testimony. Officer Taylor testified that he did not observe any indication that A.F. was fabricating her story when she talked to him. And the forensic nurse who examined A.F. testified that strangulation can cause memory loss. We also note that A.F. did not waver in her trial testimony, even in the face of vigorous cross-examination, as to the pertinent facts. Moreover, A.F. sustained injuries to her neck and Fikes's DNA was recovered from a swab taken from A.F.'s neck, both of which corroborate A.F.'s version of events. See Hoglund v. State, 962 N.E.2d 1230, 1240 (Ind. 2012) (finding no fundamental error occurs when improper vouching testimony is erroneously admitted but the defendant's conviction is "supported by substantial independent evidence of [defendant's] guilt" and "the improper admission of the evidence was cumulative of other evidence properly before the jury). Moreover, we note that Detective Sinks's testimony was brief, and the State did not emphasize the challenged testimony during closing argument.
[¶17] Given that Fikes affirmatively challenged A.F.'s credibility, that Detective Sinks's testimony was cumulative of other unchallenged testimony, that A.F. did not waver in her testimony, and that there was physical evidence corroborating A.F.'s version of events, we cannot say that the admission of Detective Sinks's testimony made a fair trial impossible. Accordingly, Fikes has not established that admission of Detective Sinks's testimony amounted to fundamental error.
[¶18] Judgment affirmed.
Bradford, J. and Felix, J. concur.