Opinion
23A-CR-2479
06-26-2024
William L. Martin, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Bruce W. Graham Graham Law Firm P.C. Lafayette, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ellen H. Meilaender Supervising 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 The Honorable Randy J. Williams, Judge Trial Court Cause No. 79D01-2111-F3-32
ATTORNEY FOR APPELLANT Bruce W. Graham Graham Law Firm P.C. Lafayette, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BROWN, JUDGE.
[¶1] William L. Martin appeals his convictions for two counts of child molesting as level 3 felonies. He argues that fundamental error occurred and that his sentence is inappropriate. We affirm.
Facts and Procedural History
[¶2] In the fall of 2021, Martin was eighteen years old. J.B. was in sixth grade and turned twelve years old that October. Martin and J.B. knew each other, and Martin knew that J.B. was eleven or twelve years old.
[¶3] In September 2021, Martin, J.B., and another young girl were in J.B.'s bedroom playing Truth or Dare. Martin kissed J.B. on the lips and then engaged in sexual intercourse with J.B. on the floor of her bedroom. On another occasion in October 2021, Martin and J.B. were together in the bedroom of Martin's cousin in the Romney Meadows apartment complex. Martin again engaged in sexual intercourse with J.B.
[¶4] On November 6, 2021, J.B.'s parents, and one of her sixth-grade friend's parents, contacted police to report that the juvenile girls were missing from their homes without permission. J.B.'s mother advised police that she might be at the Romney Meadows apartment complex. Lafayette Police Officer Lane Butler went to the apartment complex, along with other officers, and found J.B. and six other juveniles in an apartment belonging to Martin's aunt. Martin was the only adult present in the apartment. J.B. and her friend were transported to Hartford House, a child advocacy center, for forensic interviews. Although J.B. initially denied having any sexual contact with Martin, she subsequently admitted to having sexual intercourse with Martin on two occasions. The police interviewed Martin who admitted to having sexual intercourse with J.B. on two occasions, stated that he knew that it was wrong, but indicated that it was J.B.'s idea.
[¶5] The State charged Martin with Count I, child molesting as a level 3 felony; Count II, child molesting as a level 3 felony; and Count III, contributing to the delinquency of a minor as a class A misdemeanor. A jury trial began on August 14, 2023. Among other witnesses, the State called thirteen-year-old J.B. to testify. Due to her apparent hesitance at the outset of her testimony, when asked if it was "fair to say" that she did not want Martin "to get in trouble" due to her testimony, J.B. answered affirmatively. Transcript Volume II at 166. Thereafter, when the prosecutor asked J.B. what happened between she and Martin in the fall of 2021, J.B. twice responded, "I refuse to say." Id. at 168. The trial court called a sidebar, defense counsel suggested that J.B. be admonished to answer the questions, and both parties agreed that if she continued to refuse the court should declare her a hostile witness. The court admonished J.B. that she must answer the questions being asked, and J.B. responded, "I don't feel like I should have to say it." Id. at 169. The court then excused the jury and appointed a public defender to advise J.B. After J.B. was advised, and still outside the presence of the jury, the court held a hearing during which it asked J.B. if she understood that, unless a question that was asked of her would lead to self-incrimination, she was required to respond to the question or she could be held in contempt of court. J.B. answered affirmatively. The parties agreed that the jury should return and that J.B. should continue with her testimony and declared a hostile witness if she continued to refuse to answer questions.
[¶6] The jury returned, and the prosecutor again asked J.B., "in the weeks leading up to November 2021, when you knew [Martin], what happened between you and [Martin]?" Id. at 173. J.B. twice responded that she was "refusing to say." Id. Accordingly, the court declared J.B. a hostile witness, and the State was permitted to ask leading questions during direct examination. After continuing to refuse to answer the next several inquiries, finally when asked if she had admitted to forensic interviewers that she "had sex" with Martin, J.B. responded, "Yes." Id. at 174. When asked if she told interviewers that she had done so on "at least two occasions," J.B. responded, "Yes." Id. When asked, "[s]o the two of you had sex in 2021, is that correct?" J.B. answered, "Yes." Id. at 175. When asked, "[a]nd how many times did that occur?" J.B. responded, "Twice." Id. J.B. answered affirmatively when asked if the sex with Martin was "vaginal intercourse." Id.
[¶7] During closing argument, the prosecutor urged the jury to consider J.B.'s "demeanor" during her testimony and suggested, "this refusing to answer the questions[,] which refusing to answer a question is kind of an answer in and of itself. Is it not?" Transcript Volume III at 17. The prosecutor argued that J.B. did not want to answer the questions because she did not want to get Martin in trouble, and reminded the jury that, in the end, she admitted during her testimony that Martin had sexual intercourse with her twice. The prosecutor further reminded the jury that Martin admitted during his police interview that the pair had sexual intercourse and that he knew J.B. was eleven or twelve years old at the time. During closing argument, defense counsel also pointed to J.B.'s initial refusal to answer questions during trial and argued that the State having "had to treat her as a hostile witness" was suggestive of her lack of credibility. Id. at 23. Defense counsel emphasized the State's lack of physical evidence in the case, and further suggested Martin's admissions of sexual intercourse with J.B. were the product of "false bravado, false masculinity, false machismo." Id. at 22.
[¶8] The jury found Martin guilty of Counts I and II and not guilty of Count III. The court imposed concurrent sentences of ten years, with three years suspended to probation on each count.
Discussion
I.
[¶9] Martin takes issue with the procedure chosen by the trial court in handling J.B., a recalcitrant witness, as well as the prosecutor's comments during closing argument about J.B.'s initial refusal to answer questions. Conceding that he has waived his arguments for failing to make contemporaneous objections during trial, Martin asserts "the issue presented in this case is whether fundamental error occurred in [J.B.'s] repeated refusal to answer questions in front of the jury, coupled with prosecutor amplification in final argument." Appellant's Brief at 13.
The failure to make a contemporaneous objection at trial generally results in waiver of the error on appeal because a contemporaneous objection affords the trial court the opportunity to make a final ruling on the matter in the context in which the evidence is introduced. Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000). Likewise, "[t]o 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." Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014), reh'g denied.
[¶10] We observe that fundamental error is an extremely narrow exception that allows a defendant to avoid waiver of an issue. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). It is error that makes a fair trial impossible or constitutes clearly blatant violations of basic and elementary principles of due process presenting an undeniable and substantial potential for harm. Id. This exception is available only in "egregious circumstances." Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010), reh'g denied. "Fundamental error is meant to permit appellate courts a means to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred, not to provide a second bite at the apple for defense counsel who ignorantly, carelessly, or strategically fail to preserve an error." Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014), reh'g denied.
[¶11] Our review of the record reveals that the trial court's procedure in handling J.B. was reasonable under the circumstances. When it became evident that J.B. was becoming a hostile witness, the trial court conducted a sidebar to discuss the problem with both parties, and they both agreed that an admonishment by the court was a reasonable first step. When, after the admonishment, she still refused to answer, the court removed the jury and conducted a hearing during which J.B. was able to meet with and be advised by a public defender. After questioning J.B., the court determined she had been adequately advised of her rights, she did not intend to assert her privilege against self-incrimination, she would be required to answer the questions, and she understood the repercussions of any continued refusals to answer. See Ind. Code § 35-37-3-1(a) (providing, "[i]f a witness, in any hearing or trial occurring after an indictment or information has been filed, refuses to answer any question or produce any item, the court shall remove the jury, if one is present, and immediately conduct a hearing on the witness's refusal. After such a hearing, the court shall decide whether the witness is required to answer the question or produce the item"). After the jury returned to the courtroom and, when J.B. again refused to answer, the court declared her a hostile witness and direct examination continued, during which she ultimately answered the questions asked of her. Martin was able to cross-examine J.B. regarding her answers. Martin has not demonstrated that the trial court's procedure was improper or made a fair trial impossible.
[¶12] We agree with the State that Martin's reliance on Aubrey v. State, 310 N.E.2d 556, 559 (Ind. 1974), and Tucker v. State, 534 N.E.2d 1110 (Ind. 1989), is misplaced. In those cases, the Indiana Supreme Court held that a prosecutor may not call an accomplice or co-defendant to the stand when the prosecutor knows that the witness intends to assert his Fifth Amendment privilege against self-incrimination for the sole purpose of forcing the witness to invoke the privilege in front of the jury. Aubrey, 310 N.E.2d at 559; Tucker, 534 N.E.2d at 1110. If the prosecutor does so, the court must cure such error with a jury admonishment that the refusal to testify must be disregarded. Tucker, 534 N.E.2d at 1111. The reasoning behind what has been coined the "Aubrey rule" is that the "inference which is raised in the jury's mind when an alleged accomplice refuses to testify is that the withheld testimony would be damaging, not only to the witness, but also to the defendant" and "the mere refusal to speak indelibly implants adverse inferences in the minds of the jurors and reaches them in a form not subject to cross-examination." Id. at 1110 (quoting Aubrey, 310 N.E.2d at 559). Here, J.B. was not an accomplice or co-defendant of Martin, she did not assert any privilege, she ultimately answered the questions asked of her and was subject to cross-examination, and there is nothing in the record to suggest that the prosecutor knew that J.B. would initially refuse to answer questions. Thus, we cannot say the jury was improperly subjected to any impermissible inferences. We conclude that the Aubrey rule is inapplicable.
[¶13] To the extent Martin suggests the prosecutor improperly commented during closing argument on J.B.'s demeanor and initial hesitance to answer questions, the entirety of his argument in this regard assumes the Aubrey rule applies and it does not. Moreover, we observe that defense counsel also commented on J.B.'s demeanor and initial hesitance to answer the questions asked of her, using it to Martin's advantage by asking the jury to draw a negative inference regarding J.B.'s credibility as to the answers she ultimately gave. Martin has not established any error, much less fundamental error.
In his reply brief, Martin argues for the first time that he was deprived of effective cross-examination of J.B. which resulted in "structural error" necessitating a new trial. Appellant's Reply Brief at 6-7. A party may not raise an issue for the first time in a reply brief. Curtis v. State, 948 N.E.2d 1143, 1148 (Ind. 2011). The issue is waived.
II.
[¶14] Martin next challenges the sentence imposed by the trial court. Ind. Appellate Rule 7(B) provides that we "may revise a sentence authorized by statute if, after due consideration of the trial court's decision, [we find] that the sentence is inappropriate in light of the nature of the offense and the character of the offender." Under this rule, the burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[¶15] Ind. Code § 35-50-2-5(b) provides that a person who commits a level 3 felony shall be imprisoned for a fixed term between three and sixteen years, with an advisory sentence of nine years. The court here imposed concurrent ten-year sentences, with three years suspended to probation, for each of Martin's crimes. This resulted in a below-advisory seven-year aggregate executed term.
[¶16] Our review of the nature of the offenses reveals that Martin, an adult, had sexual intercourse with J.B. on two occasions when he not only knew that she was under the age of fourteen, he knew she was only eleven or twelve years old.
[¶17] Our review of Martin's character reveals that he had a juvenile referral for truancy, a delinquency adjudication for being a runaway, and he was arrested and charged with battery in 2019. He received extensive services through the juvenile system in those cases. In December 2021, while charges were pending in the present case, Martin was charged with intimidation as a level 6 felony and resisting law enforcement as a class A misdemeanor. He had been convicted of the resisting charge by the time of sentencing. The record indicates that Martin has already fathered two children with two different women, and he was caught in bed with a seventeen-year-old girl in violation of the conditions of his pretrial release in this case requiring that he have no contact with anyone under the age of eighteen years old unless another adult is present.
[¶18] In requesting a sentence revision, Martin contends that an eight-year sentence, with six years suspended to probation and two years in community corrections would be a more appropriate sentence. We note that "[t]he question under Appellate Rule 7(B) is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate." King v. State, 894 N.E.2d 265, 268 (Ind.Ct.App. 2008).
[¶19] After due consideration, we conclude that Martin has not sustained his burden of establishing that his aggregate sentence of ten years, with three years suspended, is inappropriate in light of the nature of the offenses and his character.
[¶20] For the foregoing reasons, we affirm Martin's convictions and sentence.
[¶21] Affirmed.
May, J., and Pyle, J., concur.