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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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