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. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.