Opinion
23A-CR-2457
09-10-2024
Julian Noel, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Michael J. Kyle Franklin, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General George P. Sherman 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Johnson Superior Court The Honorable Douglas B. Cummins, Judge Trial Court Cause No. 41D03-1903-F1-2
ATTORNEY FOR APPELLANT Michael J. Kyle Franklin, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
VAIDIK, JUDGE.
Case Summary
[¶1] Julian Noel appeals his convictions for Level 1 felony child molesting and Level 4 felony sexual misconduct with a minor. He argues that the trial court erred in how it answered a question from the jury once deliberations began and in excluding two witnesses' testimony under Indiana Evidence Rule 608(a). Finding Noel has waived both issues, we affirm.
Facts and Procedural History
[¶2] Noel and K.W. started dating in 2009. At that time, K.W. had two daughters from another relationship, including D.W., who was born in April 2004. Noel and K.W. had three children of their own. The family lived in Berkley Commons apartments in Indianapolis for several years and then moved to a house in Greenwood in the summer of 2017.
[¶3] In February 2019, D.W., then fourteen, told her mother that Noel started molesting her when she was twelve and started having sexual and oral intercourse with her when she was thirteen. K.W. called the police. Noel was arrested and charged with Level 1 felony child molesting (sexual intercourse or "other sexual conduct" when D.W. was thirteen) and Level 4 felony sexual misconduct with a minor (sexual intercourse or "other sexual conduct" when D.W. was fourteen).
[¶4] A jury trial was held in August 2023. Right before trial, the trial court and the parties met to discuss some preliminary matters. Defense counsel told the court that she wanted to call La'Quera Williams and Sadetria Dean to testify about "whether or not they believe that [K.W. and D.W.] have a reputation for truthfulness" under Indiana Evidence Rule 608(a). Tr. Vol. II p. 205 (emphasis added). Defense counsel clarified, "[A]ll I was gonna ask was just that they know them in the community, they've known them for a long time and do they have a reputation as being truthful or untruthful people? And that was the end of it." Id. at 206 (emphasis added); see also id. at 208 (defense counsel emphasizing that she wanted to ask Williams and Dean about K.W.'s and D.W.'s "reputation for truthfulness" in the community (emphasis added)). The trial court stated it would "see how the evidence plays out" during trial and then make a ruling. Id. at 218.
[¶5] After the State's case in chief, a hearing was held on the Evidence Rule 608(a) issue. Defense counsel argued that K.W. and D.W. had "a reputation for untruthfulness" in the community at Berkley Commons. Tr. Vol. III p. 229 (emphasis added). The State responded that Evidence Rule 608(a) wasn't satisfied because "we have heard nothing about community." Id. The trial court reviewed the Indiana Supreme Court's recent decision in Hayko v. State, 211 N.E.3d 483 (Ind. 2023), reh'g denied, cert. denied, and concluded that defense counsel had not established a sufficient foundation to admit testimony about K.W.'s and D.W.'s reputation for untruthfulness at Berkley Commons. Tr. Vol. III pp. 231-32. Defense counsel asked to make an offer of proof, which the trial court allowed.
[¶6] After the offer of proof, defense counsel argued that "both [Williams and Dean] have plenty of instances to rationally base their opinion that [K.W. and D.W.] do not have reputations for being truthful people in their community." Tr. Vol.
IV p. 3 (emphasis added). The trial court reiterated its previous ruling that defense counsel had failed to establish an adequate foundation to admit testimony about K.W.'s and D.W.'s reputation for untruthfulness at Berkley Commons:
Again, the court's referring to the Hayko case, which I mentioned on the record, which [wa]s just released and was offered by Chief Justice Rush. And again, the court will say under 608(a), "reputation testimony reflects the consensus of many close to and familiar with witness's character." While they both testified that they believe [K.W.] and [D.W.] to be a liar, I don't find - I think [Dean] mentioned maybe a couple of friends. [Williams] mentioned a couple of friends. That is not a consensus of character trait even if [D.W.] was untruthful on a couple of instances, as [Williams] contends to, that is not a reputation and it is not shared among many within the community. At least there was no evidence to show it was shared with (indiscernible) the community.Id.
[¶7] After closing arguments, final instructions were read to the jury, and it retired to deliberate at 10:49 a.m. Id. at 185. At 1:52 p.m., the jury sent a note to the trial court asking about "a conflict between sexual conduct as defined in [the] preliminary instruction[s] and other sexual conduct [as] defined in the final instructions." Id. at 190. Preliminary Instruction No. 8 defined "sexual conduct" as follows:
The term "sexual conduct" means sexual intercourse, deviate sexual conduct, exhibition of the uncovered genitals intended to satisfy or arouse the sexual desires of any person, sadomasochistic abuse, sexual intercourse or deviate sexual conduct with an animal, or any fondling or touching of a child by another person or of another person by a child intended to arouse or satisfy the sexual desires of either the child or the other person.
Appellant's App. Vol. III p. 138. Final Instruction No. 8 defined "other sexual conduct" as follows:
Both the State and defense counsel agreed to the trial court's Preliminary Instruction No. 8, which the court described as "the definition from the pattern for sexual conduct." See Tr. Vol. II p. 201; see also Ind. Code § 35-31.5-2-300; Ind. Pattern Crim. Jury Inst. 14.3660 (2023 ed.). While the definition of "sexual conduct" applies to offenses such as child exploitation and possession of child pornography, see I.C. § 35-42-4-4(b)-(e), it does not apply to child molesting and sexual misconduct with a minor. Even though the definition of sexual conduct should not have been given as an instruction, both parties agreed to it.
"Other sexual conduct" means an act involving:
(1) a sex organ of one (1) person and the mouth or anus of another person; or
(2) the penetration of the sex organ or anus of a person by an object.Id. at 156. The trial court and the parties met outside the jury's presence, and the court said it would answer the jury's question in the following manner:
The court, with the agreement of the parties, is going to review Final Instructions Number 6 and 7, specifically as it relates to element number five [sexual intercourse or other sexual conduct] in Final Instruction 6 and element number four [sexual intercourse or other sexual conduct] in Final Instruction Number 7 and instruct them that other sexual conduct is defined as it is defined in Final Instruction Number 8, meaning the sex organ of one person, the mouth or anus of another person, or the penetration of the sex organ or anus of a person by an object.
Final Instruction Nos. 6 and 7 list the elements of the offenses, including that Noel performed or submitted to sexual intercourse or other sexual conduct with D.W. See Appellant's App. Vol. III pp. 154 (child molesting), 155 (sexual misconduct with a minor).
Tr. Vol. IV p. 190. The jury was brought back in, and the court instructed the jury as follows:
Preliminary Instruction Number 8 defines the term sexual conduct, that's a general category. In the Final Instructions, both Final Instruction Number 6, element number 5 requires that the State prove beyond a reasonable doubt either sexual intercourse or other sexual conduct. And Instruction Number 7, element number four requires again sexual intercourse or other sexual conduct. That is a legal term. Other sexual conduct is defined in your Instruction Number 8, which means either the sex organ of one person and the mouth of anus of another person or the penetration of the sex organ or anus of a person by an object, so you need to find one of those two things to qualify as . . . other sexual conduct.Id. at 191. After the jury resumed deliberations, the court asked the parties if they were "satisfied with that," and both the State and defense counsel said yes. Id. The jury later found Noel guilty as charged.
[¶8] Noel now appeals.
Discussion and Decision
I. Noel waived any challenge to how the trial court answered the jury's question during deliberations
[¶9] Noel first contends the trial court erred in how it answered the jury's question about the definitions of "sexual conduct" and "other sexual conduct." Indiana Code section 34-36-1-6 outlines the procedure to follow when the jury asks a question about a point of law once deliberations have begun:
If, after the jury retires for deliberation:
(1) there is a disagreement among the jurors as to any part of the testimony; or
(2) the jury desires to be informed as to any point of law arising in the case;
the jury may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or the attorneys representing the parties.
We review the trial court's manner of responding to a jury's question for an abuse of discretion. See Inman v. State, 4 N.E.3d 190, 201 (Ind. 2014).
[¶10] Under Section 34-36-1-6, the trial court was required to answer the jury's question about the definitions of "sexual conduct" and "other sexual conduct," which are points of law. See id. (explaining that the jury's question about the definition of "asportation" was a "point of law" that the trial court had to address). The court and the parties discussed the matter and agreed how the court would respond. After answering the jury's question, the court asked the parties if they were satisfied with its explanation, and they said yes.
[¶11] Now on appeal, Noel says the trial court should have answered the jury's question differently. See Appellant's Br. pp. 12-14. But Noel didn't object to how the trial court answered the jury's question below. In fact, he agreed with it. If Noel had made these arguments below, perhaps the court would have done things differently. Noel has therefore waived this argument. See Ramirez v. State, 174 N.E.3d 181, 198 (Ind. 2021) (concluding that defendant waived any challenge to how the trial court responded to a jury's question because he didn't object below); Cole v. State, 28 N.E.3d 1126, 1135 (Ind.Ct.App. 2015) ("[T]o the extent that Cole is attempting to challenge the propriety of the trial court's admonition, he has waived any such appellate challenge because he did not object to the admonition at trial. In fact, he affirmatively stated that he had "[n]o objection" to the admonition.").
[¶12] In limited circumstances, a defendant can seek review of a waived issue for fundamental error. But Noel has not argued fundamental error on appeal, and so review of this issue is waived as well. See Bowman v. State, 51 N.E.3d 1174, 1179-80 (Ind. 2016) (holding that where the appellant "failed to raise the issue of fundamental error in his initial appellate brief[,]" such a claim was "entirely waived").
Notably, Noel didn't file a reply brief to respond to the State's argument that he has doubly waived this issue.
II. Noel also waived any challenge to the trial court's exclusion of Williams's and Dean's proposed testimony
[¶13] Noel next contends the trial court erred in excluding Williams's and Dean's proposed testimony under Evidence Rule 608(a). Generally, trial courts have broad discretion in ruling on the admissibility of evidence, and we review only for an abuse of that discretion. Chambless v. State, 119 N.E.3d 182, 188 (Ind.Ct.App. 2019), trans. denied.
[¶14] Evidence Rule 608(a) allows a party to attack a witness's credibility through reputation or opinion testimony:
A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.
(Emphases added). As the trial court noted, our Supreme Court addressed the foundational requirements for each type of testimony in Hayko. Reputation testimony "reflects the consensus of many close to and familiar with a witness's character." Hayko, 211 N.E.3d at 489; see also Bowles v. State, 737 N.E.2d 1150, 1153 (Ind. 2000) (explaining that reputation testimony "should include any community or society in which he or she has a well-known or established reputation" and "the witness testifying to reputation must have sufficient contact with that community or society to qualify as knowledgeable of the general reputation of the person whose character is attacked or supported").
[¶15] Unlike reputation testimony, an opinion on another's character for truthfulness or untruthfulness under Evidence Rule 608(a)
must stem from the testifying witness's personal knowledge of that character. And because a witness offering such an opinion is not testifying as an expert, their personal knowledge must be the rational product of the witness's own perception-such as interactions or observations-and also be helpful to the trier of fact.Hayko, 211 N.E.3d at 489.
[¶16] On appeal, Noel claims that the trial court "did not apply the correct analysis." Appellant's Br. p. 16. That is, he says the court applied the foundational requirements for reputation testimony when it should have applied the foundational requirements for opinion testimony. But as the State correctly points out, Noel repeatedly told the trial court that he wanted to offer Williams's and Dean's testimony concerning K.W.'s and D.W.'s reputation for untruthfulness. See Tr. Vol. II pp. 205, 206, 208; Tr. Vol. III p. 229; Tr. Vol. IV p. 3. As a result, the trial court correctly applied the foundational requirements for admitting reputation-and not opinion-testimony. Noel has therefore waived any argument that Williams's and Dean's testimony was admissible as opinion testimony. And while a defendant can seek review of a waived issue for fundamental error, Noel has not argued fundamental error on appeal, waiving this issue as well. We therefore affirm the trial court.
We again note that Noel didn't file a reply brief to respond to the State's argument that he has doubly waived this issue. Noel also argues that the trial court violated his constitutional right to present a defense. His constitutional argument assumes that the trial court erred under Evidence Rule 608(a), and because he waived his claim of error under this rule, his constitutional argument necessarily fails.
[¶17] Affirmed.
Weissmann, J., and Foley, J., concur.