Opinion
23A-CR-3029
11-06-2024
Timothy Mackey, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Susan D. Rayl Harshman Ponist Smith & Rayl, LLC Indianapolis, Indiana ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ian McLean 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Jennifer P. Harrison, Judge Trial Court Cause No. 49D20-2107-F1-22322
ATTORNEY FOR APPELLANT
Susan D. Rayl
Harshman Ponist Smith & Rayl, LLC
Indianapolis, Indiana
ATTORNEY FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
Vaidik and Foley Judges concur.
MEMORANDUM DECISION
Weissmann, Judge.
[¶1] Following a bench trial, Timothy Mackey was convicted of six counts of child molesting. The victims testified at trial to Mackey's specific acts of molestation. But before the victims took the stand, four other witnesses testified generally that the victims had disclosed to them Mackey's sexual abuse. Mackey now appeals his convictions, arguing that he was unduly prejudiced by the witnesses' "drumbeat repetition" of the victims' allegations. He also argues that three of the witnesses impermissibly vouched for the allegations' truth. Finding no such errors, we affirm.
Facts
[¶2] Mackey began a romantic relationship with Adrien Johnson (Mother) in 2017. Shortly thereafter, he moved in with Mother and her two daughters: 7-year-old C.J. (Child 1) and 5-year-old A.J. (Child 2). Mackey began molesting Child 1 almost immediately, and he eventually started molesting Child 2 as well. Four years later, Children disclosed to Mother Mackey's sexual abuse. Children then repeated the allegations to Mother's sister (Aunt), followed by an Indiana Department of Child Services (DCS) caseworker.
[¶3] After assessing the allegations, the DCS caseworker took Children to a local hospital to be examined by a child abuse pediatrician. Child 2's examination was normal, but Child 1's revealed an uncommon vaginal penetration injury to her hymenal tissue. The caseworker next took Children to a child advocacy center to be forensically interviewed. Child 1 disclosed to the forensic interviewer Mackey's sexual abuse, but Child 2 did not.
[¶4] After further investigation, the State charged Mackey with eight counts of child molesting: three Level 1 felonies and one Level 4 felony for acts of molestation against Child 1 and three Level 1 felonies and one Level 4 felony for acts of molestation against Child 2. At Mackey's bench trial, Mother, Aunt, the DCS caseworker, and the forensic interviewer all testified that Children had disclosed to them things in the general nature of "sexual abuse" by Mackey. Tr. Vol. II, pp. 47, 48, 66, 84, 85, 95, 97. Children later testified to Mackey's specific acts of molestation.
[¶5] According to Child 1, Mackey began molesting her the day after he moved in with Mother. The molestations occurred almost daily thereafter and included Mackey digitally penetrating Child 1's vagina, putting his penis in her mouth, and performing sexual intercourse with her. Child 1 described six instances of sexual intercourse with Mackey, including one that he filmed and another for which he made Child 2 be present.
[¶6] The record indicates that Mackey began molesting Child 2 a few years after Child 1. During her testimony, Child 2 described two instances of Mackey performing sexual intercourse with her and two of him putting his penis in her mouth. She also testified to one occasion when Mackey made her lick his penis. Additionally, Child 1 and Child 2 both testified that Mackey once made them perform oral sex on each other.
[¶7] At the close of the State's evidence, Mackey requested a directed verdict on two of the Level 1 felony child molesting charges. The trial court granted Mackey's request but ultimately found him guilty of the remaining six charges. The court later sentenced Mackey to 55 years in prison.
The two charges for which Mackey was granted a directed verdict alleged that he performed or submitted to "other sexual conduct" with Children on a particular date. The State, however, only proved that Mackey performed "sexual intercourse" with Children on that date. Compare Ind. Code § 35-31.5-2-221.5 (defining "other sexual conduct), with Ind. Code § 35-31.5-2-302 (defining "sexual intercourse").
Discussion and Decision
[¶8] Mackey appeals his six child molesting convictions, arguing that the trial court erred by allowing Mother, Aunt, the DCS caseworker, and the forensic interviewer to testify that Children disclosed to them Mackey's sexual abuse. Mackey claims this testimony was inadmissible because it amounted to a "drumbeat repetition" of Children's allegations before Children testified. He also claims that Aunt, the caseworker, and the forensic interviewer impermissibly vouched for the truth of Children's allegations. Mackey, however, waived his evidentiary claims by failing to object to the witnesses' testimony when it was elicited at trial. He therefore must establish both that the testimony was inadmissible and that its admission was fundamental error.
[¶9] "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.'" Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)). "In other words . . . 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.'" Id. (quoting Benson, 762 N.E.2d at 756).
I. Drumbeat Repetition
[¶10] Mackey's drumbeat repetition claim relies on Modesitt v. State, 578 N.E.2d 649 (Ind. 1991), in which our Supreme Court reversed a defendant's child molesting convictions because it "could not say that the drumbeat repetition of the victim's original story prior to calling the victim to testify did not unduly prejudice the jury." Id. at 652. The "original story" was elicited from three adult witnesses, who each testified to the defendant's specific acts of molestation, as disclosed to them by the victim. Id. at 650. The victim later testified to most, but not all, of the same acts. Id.
[¶11] On appeal, our Supreme Court observed that the adult witnesses did not have personal knowledge of the victim's allegations and, thus, could not be crossexamined about the allegations' truth. Id. at 651. The Court then determined that the witnesses' "drumbeat repetition" of the victim's allegations prior to the victim's testimony precluded any meaningful cross-examination of the victim. Id. at 652. "[T]he victim's veracity had been, in essence, vouchsafed" before she ever took the stand. Id. at 651.
[¶12] Mackey contends the testimony of Mother, Aunt, the DCS caseworker, and the forensic interviewer ran afoul of Modesitt because all four witnesses testified that Children disclosed to them allegations of "sexual abuse" by Mackey. But unlike the witnesses in Modesitt, Mother, Aunt, the caseworker, and the forensic interviewer did not provide any details about the alleged sexual abuse. They testified only to the general nature of the disclosures, which was inherently consistent with Children's later testimony about Mackey's specific acts of molestation. And because Children's testimony was the first and only time those details were offered into evidence, Mackey had a meaningful opportunity to challenge the truthfulness of the allegations
[¶13] For all these reasons, we find no Modesitt violation. See generally McGrew v. State, 673 N.E.2d 787, 794 (Ind.Ct.App. 1996) (finding no Modesitt violation where prior witnesses' testimony about victim's allegations was brief and consistent with victim's later testimony), summarily aff'd in relevant part, 682 N.E.2d 1289 (Ind. 1997); Norris v. State, 53 N.E.3d 512, 526 (Ind.Ct.App. 2016) (same).
II. Vouching
[¶14] Mackey's vouching claims are based on Indiana Evidence Rule 704(b). That rule provides: "Witnesses may not testify 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." "Such vouching testimony is considered an invasion of the province of the jurors in determining what weight they should place upon a witness's testimony." Alvarez-Madrigal v. State, 71 N.E.3d 887, 892 (Ind.Ct.App. 2017).
A. Aunt's Testimony
[¶15] Mackey contends that Aunt vouched for the truth of Children's sexual abuse allegations during the State's redirect examination of her. During Mackey's earlier cross-examination, he asked Aunt whether Children have reputations for being dishonest. Aunt replied that Children sometimes lie about "typical children" things, such as whether they have cleaned their rooms. Tr. Vol. II, p. 83. Then, on redirect, Aunt answered "Yes" when the State asked: "When [Children] would lie about those things, like cleaning their room and stuff, were you able to know that they were lying when they did it?" Id. at 91. According to Mackey, "the inference the State wanted the trial court to make was that Aunt knew Children were not lying when they said that Mackey molested them." Appellant's Br. p. 24 (cleaned up).
[¶16] Though Mackey does not point to any particular case law in support of his contention, our Supreme Court has determined that vouching can occur through indirect testimony that a witness is telling the truth. Hoglund v. State, 962 N.E.2d 1230, 1234 (Ind. 2012). In Hoglund, the Court held that three witnesses indirectly vouched for the truthfulness of a child's sexual abuse allegations when they essentially testified that the child was "not prone to exaggerate or fantasize about sexual matters." Id. at 1236. The Court concluded this was the "functional equivalent" of saying the child was "telling the truth." Id. Thus, the testimony was inadmissible under Evidence Rule 704(b).
[¶17] Aunt's testimony that she could tell when Children have lied in the past about cleaning their room is not the functional equivalent of Aunt saying she could tell Children were telling the truth when they disclosed to her Mackey's sexual abuse. Contra Hoglund, 962 N.E.2d at 1236. The complained of inference is too remote. Thus, Aunt's testimony does not constitute indirect vouching.
B. Caseworker's Testimony
[¶18] Mackey next contends that the DCS caseworker vouched for the truth of Children's sexual abuse allegations when she testified to Children's demeanors during their disclosures. Specifically, the caseworker stated:
[Child 2] was -- she was calm. She was not distracted. She, you know, could keep a conversation with me. And she kept good eye contact with me. She seemed to know that our conversation was serious.
[Child 1's] demeanor was the same as her sister's. I -- I thought they were fairly mature for their age. They knew that talking to me was -- was a serious concern, and they weren't overly emotional or distracted.Tr. Vol. II, p. 66
[¶19] This testimony does not constitute indirect vouching See State v. Velasquez, 944 N.E.2d 34, 44 (Ind.Ct.App. 2011) (finding social worker's testimony about child victim's demeanor when discussing molestation by defendant was not vouching because testimony did not concern whether social worker believed victim's allegation to be true).
C. Forensic Interviewer
[¶20] Finally, Mackey contends that the forensic interviewer vouched for the truth of Children's sexual abuse allegations when she testified that delayed disclosure is common with child molesting victims due to fears of getting in trouble or not being believed. The forensic interviewer also testified that disclosures can be delayed by feelings of guilt, shame, and embarrassment.
[¶21] This testimony also does not constitute indirect vouching. See Baumholser v. State, 62 N.E.3d 411, 416 (Ind.Ct.App. 2016) (finding forensic interviewer's testimony about how child molesting victims generally behave was not improper vouching because testimony did not relate to truth or falsity of specific victim's allegations).
Conclusion
[¶22] The trial court did not err-let alone commit fundamental error-by allowing the challenged testimony into evidence. Accordingly, Mackey's child molesting convictions are affirmed.
Vaidik, J., and Foley, J., concur.