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Father’s testimony at molestation trial not fundamental error

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The Indiana Court of Appeals upheld a Lake County man’s conviction of Class C felony child molesting, rejecting the defendant’s claims that some of the victim’s father’s testimony at trial resulted in fundamental error.

In Terrence T. Walker v. State of Indiana, 45A04-1208-CR-441, Terrence Walker raised three issues on appeal: the victim’s father made several inadmissible statements concerning Walker’s guilt, that the trial court erred in not instructing the jury on Class D felony sexual battery as a lesser-included offense, and that the trial court abused its discretion in replacing the only African-American juror after he was late for court.

Walker was on trial on charges of Class C felony child molesting involving fondling or touching and Class A felony child molesting involving sexual intercourse. He was accused of forcing his stepdaughters’ friend A.B. into the back of his car, where he got on top of her, pulled down her leggings and removed her underwear. The jury only found him guilty of the Class C felony charge.

Walker claimed that portions of A.B.’s father’s testimony on direct examination and cross-examination should be excluded, but since he did not object at trial, he argued on appeal that the statements made resulted in fundamental error. The trial judge told the jury to disregard an outburst the father had after direct examination.

The Court of Appeals found only one portion of the father’s testimony violated Ind. Evidence Rule 704(b), when a comment he made voluntarily implied that Walker was guilty. But this testimony did not deprive him of a fair trial because of other evidence. The judges ruled that some of the comments were invited error because they were in response to defense counsel questioning, and that the admonishment to the jury cured any error arising from the father’s initial outburst.

There was no fundamental error in not instructing the jury on Class D felony sexual battery because that offense is not an inherently nor a factually included offense of Class C felony child molesting as charged.

The judges also found no abuse of discretion in removing Juror 271, the only African-American on the panel, after he was two hours late for court. Walker doesn’t allege the juror was replaced based on racial discrimination nor present any facts to suggest that, but wants the COA to assume prejudice. The trial court attempted to reach the juror, but he did not respond to phone calls and they did not know if or when he would appear, so the trial court had reasons to replace him on the jury, the court ruled.

 

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  1. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

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  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

  5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

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