Opinion
23A-CR-2565
10-29-2024
Antonio Peterson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Talisha R. Griffin Indianapolis, Indiana Kurt A. Young Nashville, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Samuel J. Dayton 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Prinz Harrison, Judge Trial Court Cause No. 49D20-2208-F4-20813
ATTORNEYS FOR APPELLANT Talisha R. Griffin Indianapolis, Indiana Kurt A. Young Nashville, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Altice, Chief Judge.
Case Summary
[¶1] Antonio Peterson appeals his convictions, following a jury trial, of two counts of Level 4 felony child molesting, and one count each of Level 4 felony attempted child molesting, Level 5 felony criminal confinement, and Level 5 felony sexual misconduct with a minor. He raises the following two restated issues:
1. Did the trial court commit fundamental error when it instructed the jury on Level 4 felony attempted child molesting?
2. Did the admission of witness testimony constitute drumbeat repetition of the victims' out-of-court allegations against Peterson and result in fundamental error?
[¶2] We affirm.
Facts &Procedural History
[¶3] Peterson and D.F. (Mother) began dating in 2010. Mother has three children, the oldest being a son, D.G.T., then daughters D.T. and D.F. Peterson, Mother, and her children began living together around 2012. At that time, D.F. was just under two years old, and D.T. was three years older. Peterson and Mother married in 2017 and separated in October 2020, when Father moved out. After their separation, Mother and Father continued spending time together and, with Mother's permission, Father spent time at her apartment regularly, including when Mother was not home.
[¶4] On May 3, 2022, D.F., then age thirteen, and her friend, M.D., who lived nearby, were playing outside after school. When it began to rain, the girls went to their respective homes to change into dry clothes, with the plan to meet back up shortly. D.F. entered her apartment, where Peterson was the only person at home. As D.F. went upstairs, Peterson followed her into her room, where he tried "lifting up [her] shirt" and "touching [her] boobs and stuff." Transcript Vol. 4 at 11. D.F. pushed down Peterson's hand, and he went downstairs.
[¶5] Some minutes later, D.F. came down and went into the kitchen, where Peterson told D.F. that if she would "do something" he would get her a new phone. Id. at 12. As she ran out the back door, he yelled after her, "Did you hear me?" Id. at 13. D.F. went to M.D.'s apartment, and when M.D. answered the door, she saw D.F. crying. Borrowing M.D.'s phone, D.F. made several attempts to call Mother at work. Mother eventually returned D.F.'s call, and D.F. told her what happened with Peterson. Mother instructed D.F. not to go back to their apartment.
[¶6] Using an app on her phone, Mother checked the security camera that was set up inside the apartment, and it was offline, which it ordinarily was not. She then called Peterson and told him what D.F. had reported, and Peterson responded, "that girl's tripping" and explained to Mother that D.F. ran out the door because he had instructed her to do chores. Id. at 61. Mother felt that explanation "did not make sense." Id. at 63.
[¶7] Knowing that D.T. had spent time alone with Peterson over the years, Mother then called D.T., who was at her maternal grandmother's (Grandmother) home, and asked D.T. if Peterson had ever touched her. D.T. paused then said that he had, explaining that she had not previously told Mother because she was scared. Mother left work and went home, where she argued with Peterson, who denied having touched either of the girls.
[¶8] The next day, Mother took the girls to the police station, where Indianapolis Metropolitan Police Department Officer Dylan Sheets spoke separately with D.F. and D.T., who each reported having been touched inappropriately by Peterson. The Indiana Department of Child Services received the report on May 5, and a family case manager (FCM) spoke individually with D.F. and D.T. and then with Mother to create a safety plan.
[¶9] About two weeks later, IMPD Detective Alisha Bernhardt conducted forensic interviews of D.F. and D.T., who each reported sexual abuse by Peterson. D.F. reported the May 2022 incident, and D.T. reported four incidents that happened over the years of living together. As part of Detective Bernhardt's investigation, she also spoke with Mother, Grandmother, and a friend of D.T.'s named A.E., who D.T. said she messaged on her phone immediately after one of the incidents.
[¶10] On August 4, 2022, the State charged Peterson with six offenses, two were related to D.F.: Count I, Level 4 felony child molesting, and Count II, Level 5 felony criminal confinement. The other four were related to D.T.: Count III, Level 4 felony child molesting; Count IV, Level 4 felony child molesting; Count V, Level 4 felony child molesting; and Count VI, Level 5 felony criminal confinement.
[¶11] A two-day jury trial was held in August 2023. Prior to the start of trial, the State dismissed Counts II and V, and filed an additional charge related to D.T., who had turned fourteen in 2019, Count VII, Level 5 felony sexual misconduct with a minor. Peterson had no objection.
[¶12] Fourteen-year-old D.F. testified about the May 3, 2022 incident, describing that Peterson followed her closely up the stairs and into her room, where he lifted her shirt and was trying to touch her breasts, which continued for "about one minute straight." Transcript Vol. 4 at 9, 11. D.F. recalled specifics, such as where she was standing and the color of the bra she was wearing at the time, and said that Peterson was "[g]oing in from my stomach and up to my boob" and that she "[k]ept pushing his hand down." Id. at 16. D.F. stated that, after he offered to get her a new phone if she would "do something," she ran out the door and to M.D.'s apartment, "crying in the rain." Id. at 13. D.F. stated that this incident was the first time anything like that had occurred between her and Peterson.
[¶13] D.F.'s friend M.D. testified and recalled the date in May 2022, when both she and D.F. were thirteen years old. M.D. described that, after they went to their homes to change into dry clothes, D.F. was back at M.D.'s apartment in less than ten minutes, crying and "banging" on M.D.'s door. Transcript Vol. 3 at 157. M.D. testified, over objection, that D.F. said "my stepdad tried to touch me." Id. at 158.
[¶14] D.T., then age seventeen and a senior in high school, testified about four incidents that occurred with Peterson. The first was when D.T. was in fifth grade, and after school, Peterson made her sit on his lap and took her hand and stuck it in his pants, touching his penis for four or five seconds. She pulled out her hand and ran away. In another incident, which D.T. described as occurring at their next apartment, Peterson pulled her to the floor in the kitchen, where she was lying on her stomach, and he straddled her, holding her down and trying to pull down her jeans and "was trying to put it in my pants." Transcript Vol. 4 at 123. In a third incident, when D.T. was in seventh grade and living at another apartment, D.T. recounted that she was home sick from school with Covid and was in bed in her room, when Peterson came in and tried to pull down her tank top, touching her "boobs and butt" over her clothes. Id. at 125. D.T. kept pushing his hand away, and he eventually went downstairs, after telling D.T. that she "better not tell anybody." Id. at 142. D.T. testified that she was crying and "sent [her] friend a message about what happened." Id. at 125. D.T. described a fourth incident, occurring when she was around sixteen and living in her current apartment when he followed her into the kitchen and was trying to hug her and "grab [her] butt," as she pushed his hands away. Id. at 153.
[¶15] D.T.'s friend A.E. testified about having received an Instagram direct message from D.T. about Peterson, a screen shot of which A.E. provided to Detective Bernhardt during the police investigation. In the message - dated June 26, 2021, when D.T. and A.E. were freshman - D.T. stated, in part, "I am currently crying on my bed having a panic attack because my Step dad just came up too my room and sexually assaulted me, and my momma is not home rn and I don't want to tell her over text . . . I scared to leave my room". Exhibits Vol.at 8 (errors in original). In response, A.E. encouraged D.T. to tell her mother, call the police, and consider getting a rape kit, to which D.T. replied, in part, "No he did not rape me or anything he just kept touching[.]". Id. at 9.
[¶16] In testifying about D.F.'s call to her at work on May 3, 2022, Mother described that D.F. sounded "loud" and excited, like "she was panicking," and told Mother that Peterson had tried to touch her and remove her bra. Transcript Vol. 4 at 62. Mother explained that D.F. has "mental issues" related to "explosive behaviors" and that "when she's scared . . . she don't know how to push her feelings out without being loud." Id. at 62, 81. Mother testified that when she called D.T. to ask if Peterson had touched her, D.T.'s voice got shaky, and she responded that he had. Mother said that when she confronted Peterson regarding D.F.'s disclosure, he initially said, "you know how [D.F.] is, all dramatic" but when Mother advised Peterson that D.T. had reported similar behavior, Peterson "switched it up and said, well, you know, they both hate me." Id. at 65.
[¶17] Peterson called his daughter and Detective Bernhardt as witnesses and testified in his own defense. After the defense rested, and as final instructions were beginning to be discussed, the State requested that Count IV (Level 4 felony child molesting as to D.T.) be changed to attempted child molesting "for the pulling of the pants incident" with D.T. Transcript Vol. 4 at 249-50, Vol. 5 at 2. The State then submitted Proposed Final Jury Instruction #2 that provided, in part:
The Defendant is charged in Count IV with the offense of attempted child molesting, which is defined by statute as follows:
The crime of child molesting is defined by statute as follows: A person who, with a child under fourteen (14) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits child molesting. A person attempts to commit child molesting when, acting with the culpability required for commission of the child molesting he engages in conduct that constitutes a substantial step toward commission of the child molesting.
To convict the Defendant, the State must have proven each of the following elements beyond a reasonable doubt:
1. The Defendant, Antonio Peterson
2. With the intent to arouse or satisfy the sexual desires of [D.T.] or Antonio Peterson
3. When [D.T.] was a child under fourteen (14) years of age
4. Knowingly
5. Attempt to perform or submit to fondling or touching of [D.T.]
6. By pulling her pants down
7. Which the jury finds constitutes a substantial step toward the commission of the crime of child molesting
If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of attempted child molesting.Appendix at 135 (emphases added). Peterson stated that he had "no objection." Transcript Vol. 4 at 250. The trial court's Final Instruction No. 19, identical to the State's Proposed Final Instruction No. 2, was read, without objection, to the jury.
[¶18] The jury found Peterson guilty of Counts I and III (Level 4 felony child molesting each as to D.F. and D.T), Count IV (Level 4 felony attempted child molesting as to D.T.), Count VI (Level 5 felony criminal confinement as to D.T.), and Count VII (Level 5 felony sexual misconduct with a minor as to D.T.). Following his sentencing, Peterson now appeals.
Discussion &Decision
Standard of Review
[¶19] Peterson asserts that the trial court committed fundamental error in instructing the jury and in admitting certain evidence. 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. Neal v. State, 175 N.E.3d 1193, 1197 (Ind.Ct.App. 2021), trans. denied; Barthalow v. State, 119 N.E.3d 204, 211 (Ind.Ct.App. 2019). "To establish fundamental error, the defendant must show that, under the circumstances, the trial court erred in not sua sponte raising the issue because 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." Neal, 175 N.E.3d at 1197.
1. Instruction on Attempted Child Molesting
[¶20] Peterson contends that the trial court erred when it instructed the jury on attempted child molesting and that his conviction for that offense should be reversed. Specifically, he contends that the court instructed the jury "on a crime not charged" because he "was charged in count 4 [] with the offense of child molesting as a level 4 felony" but the jury was instructed in Final Instruction No. 19 on the offense of attempted child molesting. Appellant's Brief at 14, 15.
[¶21] We review a trial court's jury instructions for an abuse of discretion. Albert v. State, 193 N.E.3d 1040, 1042 (Ind.Ct.App. 2022), trans. denied. Conceding that he did not object, Peterson asserts that giving the instruction constituted fundamental error.
[¶22] Peterson's argument that the jury was instructed on a crime not charged does not address, and appears to overlook, that, during discussion of final jury instructions, the State requested that "the instruction on Count [] IV to be an attempt child molest for the pulling of the pants incident." Transcript Vol. 4 at 249. The court paused the proceedings, going off the record for some minutes in order for the proposed instruction to be printed and Peterson to review it. Upon resuming, the court clarified the matter in question, stating, "[The prosecutor] was proposing to change Count IV to an attempt," and it asked for Peterson's position, to which his counsel responded, "No objection." Id. at 250. The exchange continued, with Peterson's counsel stating that she had read through the instruction and reaffirming that she understood: "So the State is . . . [c]hanging Count IV to attempt?", which the court confirmed and then asked counsel whether Peterson was "good with that," and counsel responded, "Yes, Judge." Transcript Vol. 5 at 2. This record reflects a clear understanding that the State was amending Count IV to an attempt charge, and thus Peterson's claim that the court "committed fundamental error in instructing the jury it could convict Peterson of a crime not charged" fails. Appellant's Brief at 4.
[¶23] Furthermore, when the State offered Proposed Final Jury Instruction #2, it identified I.C. § 35-31.5-2-168, which defines "included offense," as the statutory basis for its instruction. See Appendix at 132. Peterson acknowledges that attempt is an included offense but argues that Final Instruction No. 19 included "additional factual elements" - presumably Peterson is referring to the "by pulling her pants down" language - and that those facts "should have been supplied by amendment of the information and no amendment was requested in this case." Appellant's Brief at 19. Again, Peterson does not address the State's verbal proposal "to change Count IV to an attempt" for the "pulling of the pants incident," and Peterson's multiple statements that he had no objection to that course of action or the State's proposed instruction. Transcript Vol. 4 at 249-50. While the State may have not directly moved to amend the information, the record clearly reflects that that was the substance of the State's request, and the court gave Peterson time off the record to consider it, asking Peterson, more than once, for his position, with Peterson voicing no objection. Moreover, as the State observes, the evidence supported the court's decision to give the attempted child molesting instruction as D.T. testified about the occasion in the kitchen when Peterson was pulling at her jeans and "trying to put it in [her] pants." Id. at 123.
[¶24] On this record, Peterson has not established error, let along fundamental error, by the trial court's decision to instruct the jury in Final Instruction No. 19 on attempted child molesting.
To the extent that Peterson suggests that Final Instruction No. 19 was erroneous for failing to "mention any belief by Peterson regarding D.T.'s age," his argument relies on Ind. Code § 35-42-4-3(c) (Subsection c), which provides that "[a] person may be convicted of attempted child molesting of an individual at least fourteen (14) years of age if the person believed the individual to be a child under fourteen (14) years of age at the time the person attempted to commit the offense." Appellant's Brief at 16. Subsection c has no application here, however, where the State charged Peterson in Count IV under I.C. § 35-42-4-3(b) and alleged that D.T. was under the age of fourteen at the time of the offense.
2. Admission of Evidence
[¶25] Peterson contends that the trial court "erred in allowing the State to introduce the testimony of numerous witnesses recounting and characterizing what they were told by D.T. and D.F., which resulted in drumbeat repetition of their stories" such that he is entitled to reversal of his convictions. Appellant's Brief at 9, 19.
[¶26] As Peterson did not object to the State's witnesses' testimonies on this basis, he has waived the issue. Norris v. State, 53 N.E.3d 512, 525 (Ind.Ct.App. 2016). In an attempt to avoid waiver, Peterson argues that the admission of the testimony was fundamental error. As stated, a defendant claiming fundamental error must show that the alleged errors are so prejudicial to his rights as to make a fair trial impossible. Neal, 175 N.E.3d at 1197. An erroneous evidentiary ruling does not constitute fundamental error when the jury could overlook the improper evidence and reach the same conclusion based solely upon properly admitted evidence. Id.
[¶27] Our courts have recognized that the danger of prejudice arises in the "drumbeat repetition" of an out-of-court assertion. Kress v. State, 133 N.E.3d 742, 747 (Ind.Ct.App. 2019), trans. denied. That is, as additional testimony about the assertion "beats the drum," there is increasing danger the jury will use the testimony for an improper purpose. Id. For instance, "the repeated references might eventually inundate the jury, leading them toward an inference that witnesses are vouching for the credibility of the declarant." Id. We examine whether there was repetitive witness testimony about the victim's "specific allegations." See id. (noting reversible error has been found "where the challenged testimony repeated the victim's specific allegations").
[¶28] To support his argument that impermissible drumbeat repetition occurred here, Peterson relies primarily on Modesitt v. State, 578 N.E.2d 649, 650 (Ind. 1991), where a child's mother, a welfare caseworker, and a psychologist all testified at length and in detail as to what the child told them regarding the abuse. Their testimony occurred prior to the victim testifying and was admitted over objection. Our Supreme Court determined that permitting the three witnesses to repeat the accusations of the victim prior to the victim testifying unduly prejudiced the jury.
[¶29] Here, in contrast, the witnesses did not testify at length or in detail as to what D.F. and/or D.T. told them. Rather, most of the witnesses' testimonies were brief, and the witnesses did not testify to any specific information that D.F. and D.T. might have relayed to them about the incidents. For instance, Officer Sheets, who initially spoke with the girls, testified that he responded to "a delayed molestation report" and that the general nature of the crime that was relayed by each was "being touched inappropriately by their stepfather." Transcript Vol. 3 at 142, 143. The FCM testified that she met with Mother to put a safety plan in place and that the "alleged perpetrator" was Peterson. Id. at 153. D.F.'s friend M.D. testified, over objection, that, when D.F. showed up crying at her door, she asked D.F. what was wrong, and D.F. responded that her stepdad "tried to touch her." Id. at 157-58. Mother testified about D.F. calling her at work and that D.F. told her Peterson had tried to touch her and take off her bra. As to D.T., Mother testified only that, when she called and asked D.T. if Peterson had touched her, D.T. said that he had.
Peterson objected on hearsay grounds, and the court admitted the statement as an excited utterance.
[¶30] D.T.'s friend A.E. testified that, during their friendship, she had only a few conversations with D.T. about Peterson and that, in June 2021, D.T. sent her an Instagram message about Peterson, which she provided to police during the investigation. Grandmother testified that she was at her home with D.T. on May 3, 2022, when Mother called, but that D.T. spoke to her from another room. When Grandmother was asked whether D.T. had disclosed anything to her that day, Grandmother answered affirmatively but stated only that it was in the nature of "sexual abuse" by Peterson. Transcript Vol. 4 at 109. As for Detective Bernhardt, she testified that D.F. and D.T. each disclosed sexual abuse by Peterson during the interviews, with D.T. disclosing "three or four incidents" and D.F. reporting one, and she described the course of action she took based on those reports. Id. at 168.
[¶31] Our review of the record indicates that most of the challenged testimonies were brief, and none of the witnesses testified to any specifics that D.F. or D.T. may have provided. Indeed, the State, in questioning some of the witnesses, specifically instructed them not to go into detail about what they may have been told by D.F. or D.T. We agree with the State that "[t]he jury knew that D.F. and D.T. had disclosed to others that they had been sexually abused, but the jury did not know how to evaluate those broad allegations until they heard from D.F. and D.T. themselves." Appellee's Brief at 24.
[¶32] As the challenged witnesses' testimonies provided only generalized statements of disclosed abuse, and only D.F. and D.T. provided detailed accounts of the alleged incidents, we are unpersuaded that the now-challenged testimonies of the various witnesses constituted "pervasive drumbeat repetition" of their respective version of events with Peterson. Appellant's Brief at 24-25. See Kress, 133 N.E.3d at 747-48 (rejecting claim of drumbeat repetition where witnesses gave "general testimony about the existence of allegations" and did not "delve[] into [the victim's] version of events"); Norris, 53 N.E.3d at 526 (rejecting claim that testimony of two witnesses constituted impermissible drumbeat repetition of victim's allegations where their testimonies "provided an overview of the situation and a summary of [the victim's] accusations' without elaborating"). The admission of the evidence did not deprive Peterson of a fair trial, and therefore did not constitute fundamental error.
Peterson suggests in passing that the testimony of some witnesses was indirect opinion evidence and improper under Ind. Evid. R. 704(b). Appellant's Brief at 22-23 (citing witnesses' responses that used terms of sexual abuse and inappropriate touching). However, Peterson fails to support such claim with cogent argument, and thus it is waived. Ind.App. Rule 46(A)(8).
[¶33] Judgment affirmed.
Bailey, J. and Mathias, J., concur.