Opinion
23A-CR-2400
06-14-2024
Michael C. Merriweather, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Christopher Kunz Marion County Public Defender Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General Kathy Bradley 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Trial Court Cause No. 49D32-1910-F4-41645 The Honorable Mark Stoner, Judge
ATTORNEY FOR APPELLANT Christopher Kunz Marion County Public Defender Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General Kathy Bradley Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Vaidik, Judge
Case Summary
[¶1] Michael C. Merriweather appeals his convictions for one count of Level 4 felony child molesting and two counts of Level 5 felony child solicitation, arguing the trial court committed fundamental error in allowing certain testimony. We affirm.
Facts and Procedural History
[¶2] S.T. and her family live in a large apartment complex in Indianapolis with multiple buildings and 600-700 units. One day in August 2019, when S.T. was thirteen, she got off the bus from school and saw thirty-year-old Merriweather at the complex in a "green truck." Tr. p. 130. He had a black puppy with him, and S.T. talked to him to find out how much the puppy cost. She then left and went home to her apartment. That same day, S.T.'s mother, Nyree Lane-Maloney, saw Merriweather in front of their apartment building with the puppy. She didn't recognize him, so she asked if he knew anyone in the building, and he said he was waiting to sell the puppy to someone. Later that day, S.T. saw Merriweather with the puppy again, this time in her building. She stopped to hold the puppy and talked more about it with Merriweather. Nyree came out of their apartment, and when she saw S.T. and Merriweather together in the hallway, she told S.T. to come inside.
[¶3] The next day, S.T. was on her way to the bus stop when she saw Merriweather by the laundromat in the apartment complex. He had the puppy with him again, so S.T. stopped to play with it. Merriweather tried to lure her into the laundromat with him, but she left because she had to go to school. After school that day, S.T. saw Merriweather behind the stairwell in her apartment building, this time without the puppy. Merriweather asked S.T. her name and age, and when she told him she was thirteen, he said, "damn, you're young." Id. at 135. He wanted to know if S.T. was a "snitch" and if she was "ever going to tell anything," and he "tried to get [her] to pinky swear." Id. at 133. He asked her to go to the laundry room so he could "eat [her] private part," but she said no. Id. at 134. Merriweather then pulled down his pants and told S.T. to "touch his penis" over his underwear. Id. S.T. "grabbed" his penis with her hand, and he asked her to "suck it," but she didn't. Id. She stopped touching his penis because she "started to feel uncomfortable" and had to go home. Id. at 135. Merriweather asked for a hug before S.T. left, so she gave him a hug and then went into her apartment.
[¶4] Once inside, S.T. called her best friend, T.N., and told her what happened. S.T. also warned her neighbor, Britney, about Merriweather. Britney was a few years older but had two younger sisters, so S.T. told Britney to look out for them. Britney told her mother, Charla Edward, who then informed Nyree. Nyree asked S.T. about what Charla had told her, and S.T. admitted what happened with Merriweather. Nyree called the police, and officers came to the apartment to take a report.
[¶5] A few days later, Charla saw a green SUV at a gas station with a "young lady" inside. Id. at 114. She had seen Merriweather's car around the apartment complex and recognized the SUV as the same car. Charla warned the young lady to "be mindful" because Merriweather had been "soliciting young girls" in the complex. Id. After that, Merriweather drove to S.T. and Nyree's apartment building and knocked on their door. Nyree didn't answer and called the police. Officers arrived and searched for Merriweather, and they eventually located him in the complex office. Merriweather told an officer he'd just been walking his dog and didn't know what was going on.
[¶6] Indianapolis Metropolitan Police Department Child Abuse Detective Nicholas Ragsdale interviewed Merriweather, and Merriweather said he didn't live in the apartment complex but knew people who did. Detective Ragsdale spoke with several residents, each of whom confirmed seeing Merriweather hanging around the complex over the last week or two. One of the residents also reported that Merriweather had a black puppy and drove a green Ford Explorer.
[¶7] The State charged Merriweather with one count of Level 4 felony child molesting for having S.T. touch his penis and two counts of Level 5 felony child solicitation, one count for asking her to perform oral sex on him and one count for asking if he could perform oral sex on her. A bench trial was held in August 2023. Nyree testified, and on cross-examination, defense counsel asked her about S.T.'s honesty:
Q Okay. Now, at the time S.T. was 13, right?
A Yeah.
Q And you didn't always trust what she said; is that right?
A Absolutely.
Q Absolutely that's right?
A Yeah, absolutely right.
Q Okay. And so honesty was an issue.
A Yes.Id. at 118-19. The trial judge then asked, "When you said honesty was an issue, was this a particular problem for her, or was she a typical teenager . . . ?" Id. at 119. Nyree clarified that S.T. was a typical teenager, wanting to "lie, sneak," and that she'd had similar problems with her older daughter. Id. Defense counsel didn't object to the judge's questions or Nyree's answers. The judge questioned Nyree further, later asking,
THE COURT: When S.T. did disclose to you at the time did you have any reason not to believe her?
THE WITNESS: I was more shocked and upset, but -- and the reason why I did believe her was because my spidey senses were already tingling.... So that's why I ended up going out in the hall because I was suspicious already. So that's why, when an actual full truth came out, I believed her.
THE COURT: Okay.
THE WITNESS: A lot of times I won't. But certain things, yes. I -- because if I'm already feeling like something's not right, then -and then when the confirmation is confirmed. Yeah, I believed her.
THE COURT: Okay.Id. at 121-22. Defense counsel didn't object to this line of testimony.
[¶8] T.N. testified that S.T. called her after the incident, crying and still shaken up, and told her what happened with Merriweather. S.T.'s school counselor, Jennifer Patsel, also testified, explaining that S.T. disclosed to her that she had a sexual encounter with a man inside her apartment building and that S.T. was tearing up, concerned, and "had fear in her eyes" while they spoke. Id. at 94. Patsel believed the incident happened "within a day, week time period" of the disclosure. Id.
[¶9] S.T. testified about her sequence of interactions with Merriweather. She described her encounters with him before the incident of abuse and then recounted the incident in detail. Detective Ragsdale testified that when he interviewed Merriweather, he denied the criminal allegations but didn't deny knowing S.T. and admitted to being in S.T.'s apartment building.
[¶10] The trial court found Merriweather guilty as charged and sentenced him to a total term of eight years in the Department of Correction.
Discussion and Decision
[¶11] Merriweather contends the trial court "elicit[ed] impermissible vouching testimony" by asking Nyree if she had any reason not to believe S.T.'s allegations. Appellant's Br. p. 11. Merriweather acknowledges that he failed to object to the judge's question or Nyree's answer and therefore must establish fundamental error on appeal.
[¶12] Failure to object to the admission of evidence at trial generally results in waiver and precludes appellate review unless the admission constitutes fundamental error. Halliburton v. State, 1 N.E.3d 670, 678-79 (Ind. 2013). "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), reh'g denied. To establish fundamental error, the defendant must show that the alleged error constituted a clearly blatant violation of basic and elementary principles of due process and presented an undeniable and substantial potential for harm. Id.
[¶13] Vouching testimony is prohibited by Indiana Evidence Rule 704(b), which provides that "[w]itnesses 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 testimony invades the province of the factfinder in determining what weight to give a witness's testimony. Gutierrez v. State, 961 N.E.2d 1030, 1034 (Ind.Ct.App. 2012). "[I]t is essential that the trier of fact determine the credibility of the witnesses and the weight of the evidence." Id.
[¶14] When Nyree testified that she believed S.T.'s disclosure of the sexual abuse after the trial judge asked if she had any reason not to believe S.T., Nyree was undeniably giving an opinion on the truth of the allegations against Merriweather. But as the State points out, admission of this testimony was not error because Merriweather "opened the door" to it by questioning Nyree about S.T.'s truthfulness and believability. Appellee's Br. p. 11. A defendant may open the door to otherwise inadmissible evidence by interjecting an issue at trial. Hamilton v. State, 43 N.E.3d 628, 632 (Ind.Ct.App. 2015), aff'd on reh'g, 49 N.E.3d 554, trans. denied. Vouching evidence that would normally be inadmissible may be admitted if the defendant opens the door to questioning on that evidence. Sampson v. State, 38 N.E.3d 985, 992 n.4 (Ind. 2015). The "evidence relied upon to open the door must leave the trier of fact with a false or misleading impression of the facts related." Hamilton, 43 N.E.3d at 632-33.
[¶15] The only conceivable reason the defense would ask Nyree about S.T.'s trustworthiness and honesty is to discredit S.T.'s allegations. Nyree's testimony that she "absolutely" did not always trust what S.T. said and that honesty was an issue may have left a false or misleading impression that she didn't believe S.T.'s disclosure. And it appears this testimony did in fact leave such an impression, given that the trial judge asked a question right after to clarify what Nyree meant by honesty being an issue and then later asked Nyree if she had any reason not to believe S.T.'s disclosure. Contrary to Merriweather's assertion, we see no indication that the judge was "eliciting" impermissible vouching by asking these questions; he was merely following up on Nyree's responses to defense counsel's cross-examination, not seeking testimony that would be beneficial to the State's case. Merriweather opened the door to the judge's clarifying questions and Nyree's response that she believed S.T.
[¶16] Even if the trial court did err in allowing this line of testimony, Merriweather has not established fundamental error. "Where evidence of guilt is overwhelming any error in the admission of evidence is not fundamental." Halliburton, 1 N.E.3d at 683 n.7. S.T. testified at length about her encounters with Merriweather leading up to the incident of abuse. Other residents confirmed Merriweather had been hanging around the apartment complex with a black puppy and drove a green Ford Explorer. Nyree, too, had seen Merriweather at the complex, including when he and S.T. were together in the hallway the day before the incident. S.T. also gave a detailed explanation of the incident at trial. T.N. and Patsel each testified that S.T. disclosed the abuse to them and described how she was upset when she told them. A few days later, Charla saw another young girl in Merriweather's green SUV. And while Merriweather denied the criminal allegations, he admitted to officers that he'd been walking around the complex with his dog, he knew S.T., and he'd been inside S.T.'s apartment building. Given this substantial evidence of guilt, we cannot say the trial court's question to Nyree or Nyree's response were so prejudicial to Merriweather's rights that a fair trial was impossible. See Neal v. State, 175 N.E.3d 1193, 1198 (Ind.Ct.App. 2021) (concluding that, in light of "plethora of unchallenged evidence" that independently supported childmolesting conviction, challenged testimony wasn't so prejudicial as to make a fair trial impossible), trans. denied; Sampson, 38 N.E.3d at 992-93 (finding challenged testimony wasn't so prejudicial as to make a fair trial impossible where victim's testimony about the sexual abuse was unwavering and defendant admitted some of the details recounted by the victim). Merriweather has not shown that admission of the testimony amounted to fundamental error.
[¶17] Affirmed.
May, J., and Kenworthy, J., concur.