COX v. STATE (2023)

MEMORANDUM DECISION

Case Summary

[1] James Cox appeals his conviction for child molesting, as a Level 1 felony,¹ and his adjudication as a repeat sexual offender.² Cox raises one issue for our review, namely, whether the court abused its discretion when it admitted certain evidence at trial. We affirm.

Facts and Procedural History 3

[2] Cox was a friend of Izetta Whitney and her children, K.N., J.N., S.N., and Ke.N. Cox was around the family “a lot.” Tr. Vol. 2 at 179. K.N., J.N, and Ke.N. would often go to Cox's house for the weekends. While there, the children would swim in the pool, go out to eat, go to the store, play video games, and watch TV. Cox did not have many rules for the children. However, the children were not allowed to “be loud,” and they were told that “what happen[ed] here stays here.” Id. at 220.

[3] One weekend between September and November 2019, the three children went to Cox's house. That Saturday, Ke.N. and J.N. were playing video games in the living room. At some point, K.N. obtained a Fanta to drink. She noticed that it “looked a little weird,” but she was thirsty, so she drank it anyway. Tr. Vol. 3 at 35. K.N. then went to Cox's bedroom to watch T.V. from Cox's bed because Ke.N. and J.N. were still playing video games in the living room. K.N. started to feel “weird.” Id. at 38. She was nauseous and “extra tired[.]” Id. at 39. K.N. fell asleep while watching TV.

[4] K.N. woke a while later and noticed that she was “bent over the bed.” Id. at 41. She felt “bare,” like she “didn't have any underwear on.” Id. K.N. looked behind her and saw Cox. She felt “pain” in her “bottom ․ where poop comes out of,” and she noticed Cox's “private part” in her anus. Id. at 43. K.N. screamed. Ke.N. heard K.N. scream, and he ran to Cox's bedroom. Ke.N. observed that K.N. was “bent over the bed.” Tr. Vol. 2 at 228. Ke.N. also saw that Cox was standing “[r]ight behind K.N.” Tr. Vol. 3 at 5. Ke.N. noticed that Cox was not wearing a shirt and that he was “zipping up” his shorts. Tr. Vol 2. at 228. Ke.N. asked what had happened, and Cox responded that K.N. had “stubbed her toe.” Id. at 231. But Ke.N. did not believe Cox because K.N. “had tears coming down her eyes” and was walking with “a crucial limp.” Id. at 232. At that point, Cox's phone rang, and Cox left to answer it. K.N. then left the bedroom and went to the bathroom. There, she observed that she was “bleeding” from her “back hole.” Tr. Vol. 3 at 48.

[5] A short time later, Cox took all three children to the Dollar General to buy candy and soda. While Cox generally limited the amount of money the children could spend, Cox gave K.N. “a little bit more,” which was “unusual.” Tr. Vol. 2 at 236. K.N. felt that Cox was “trying to buy” her silence. Tr. Vol. 3 at 49. K.N.’s “butt felt weird” and was “hurting in general.” Id. at 51. While at the store, Ke.N. and J.N. asked K.N. why she “was walking like a weirdo, like a penguin.” Id. at 50. Ke.N. also kept giving K.N. “weird looks.” Id. at 52.

[6] After they left the store, the four returned to Cox's house. Ke.N. noticed that K.N. became “antisocial” and “didn't want to be around” anyone, which was “different” for her. Tr. Vol. 2 at 236-37. The next morning, the children returned to Whitney's home. Thereafter, K.N. would just “stay[ ] in her room” and “wouldn't really talk to” anyone. Id. at 240. K.N., who had previously received “straight A's,” started “failing” classes and dropped out of a special program for students who wanted to become doctors. Id. at 192. K.N. also stopped participating in sports and stopped going to Cox's house. She was also diagnosed with depression and placed on medication.

[7] In January 2022, K.N. texted a picture of herself crying to a friend. The friend asked what was wrong, but K.N. would not answer. The friend then texted Ke.N. and told him to “figure it out.” Tr. Vol. 3 at 84. Ke.N. approached K.N., and K.N. told him “what [had] happened” at Cox's house the prior fall. Tr. Vol. 2 at 241. Ke.N. then told Whitney, who confirmed Ke.N.’s statements with K.N. Whitney called the Indiana Department of Child Services, who reported the allegations to the police.

[8] The State charged Cox with one count of child molesting, as a Level 1 felony, and alleged that he was a repeat sexual offender. The court then held a bifurcated jury trial. During the trial, the State presented the testimony of Whitney, Ke.N., K.N., K.N.’s friend, and the officer who had investigated the allegations.

[9] Whitney testified as to how she had learned about the allegations. She testified that, after Ke.N. had approached her and told her that Cox had “touched K.N.,” she confronted K.N. When Whitney asked K.N. about the allegations, K.N. became “very, very emotional.” Id. at 189. Whitney then started to testify about what K.N. had told her, but Cox objected on the ground that the testimony was hearsay. The State responded and asserted that K.N.’s statements to Whitney fell under the excited utterance exception to the rule against hearsay. The court agreed and overruled Cox's objection. Whitney then testified that K.N. told her that Cox had “touched” her and “did bad things to” her. Id.

[10] During K.N.’s testimony, she testified in detail about the offense. The State then asked if, during the fall of 2019 but before the offense in question, there was “anything else” that Cox had done to “ma[k]e her hurt or feel bad.” Tr. Vol. 3 at 62. Cox objected and argued that “[w]e're getting away from the incident.” Id. The State responded that the testimony was evidence of “grooming” that is “relevant as to preparation and plan for the ultimate sexual offense charged.” Id. at 64. Cox then responded that the alleged touching was “uncharged conduct” that was “prejudicial” to him. Id. at 65. The court overruled the objection. K.N. then testified that Cox “would touch her” in her “girl part area” both on top of and underneath her clothing. Id. at 68.

[11] At the conclusion of the trial, the jury found Cox guilty of child molesting, and he admitted to being a repeat sexual offender. Following a sentencing hearing, the court sentenced Cox to an aggregate term of forty-eight years executed in the Department of Correction. This appeal ensued.

Discussion and Decision

[12] Cox asserts that the trial court abused its discretion when it admitted certain evidence. As our Supreme Court has stated:

Generally, a trial court's ruling on the admission of evidence is accorded “a great deal of deference” on appeal. Tynes v. State, 650 N.E.2d 685, 687 (Ind. 1995). “Because the trial court is best able to weigh the evidence and assess witness credibility, we review its rulings on admissibility for abuse of discretion” and only reverse “if a ruling is ‘clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights.’ ” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014) (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013)).

Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015).

[13] On appeal, Cox specifically asserts that the trial court abused its discretion when it allowed Whitney to testify as to the statements K.N. had made to her and when it allowed K.N. to testify that Cox had previously touched her inappropriately. We address each argument in turn.

Whitney's Testimony

[14] Cox first challenges the court's admission of Whitney's testimony regarding K.N.’s disclosure of the abuse. Specifically, Cox contends that Whitney's testimony was hearsay. The State responds and asserts that the statement fell within the excited utterance exception to the rule against hearsay.

[15] The Indiana Rules of Evidence define hearsay as “a statement that: (1) is not made by the declarant while testifying at the trial ․; and (2) is offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c). Hearsay is generally not admissible in evidence. See Evid. R. 802. However, the Evidence Rules provide several exceptions to the rule against hearsay. In particular, a “statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused” is not excluded by the rule against hearsay. Evid. R. 803(2).

[16] Here, Cox asserts that K.N.’s statements to Whitney did not fall into the excited utterance exception to the rule against hearsay because K.N.’s disclosure was “made several months after the event,” so K.N. “could not have been under the stress or excitement caused by the event.” Appellant's Br. at 7. He further asserts that the mere fact that K.N. “exhibited stress” when she made the statements to Whitney “is not sufficient” to demonstrate that her statements were made while under the stress of the offense. Id.

[17] However, we need not decide whether the court abused its discretion when it admitted Whitney's testimony about K.N.’s statements because that testimony was merely cumulative of other evidence before the jury. It is well settled that the improper admission of evidence is harmless error when the erroneously admitted evidence is merely cumulative of other evidence before the trier of fact. Hunter v. State, 72 N.E.3d 928, 932 (Ind. Ct. App. 2017). Here, in addition to Whitney's testimony that K.N. had disclosed the abuse, Whitney also testified that Ke.N. had approached her and told her that Cox had “touched K.N.”⁴ Tr. Vol. 2 at 186. In addition, Ke.N. testified that, after K.N. told him what had happened, he told Whitney. See id. at 241. And K.N. testified that she informed Whitney that Cox “did something to [her].” Tr. Vol. 3 at 58. Thus, even if we were to agree that the trial court abused its discretion when it allowed Whitney to testify about K.N.’s disclosure, that evidence was merely cumulative of other evidence that K.N. and her brother had both disclosed the touching to Whitney and was therefore harmless.

K.N.’s Statements

[18] Cox next challenges the court's admission of K.N.’s testimony that he had previously touched her inappropriately. Cox contends that that testimony violated Indiana Evidence Rule 404(b). That rule provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with that character.” Evid. Rule 404(b)(1).

[19] While Cox is correct that Rule 404(b) generally prohibits the introduction of evidence of a crime, wrong, or other act, Cox fails to acknowledge that Rule also outlines specific permitted uses. Indeed, Evidence Rule 404(b)(2) provides that such “evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identify, absence of mistake, or lack of accident.” Here, we agree with the State that K.N.’s testimony was admissible to show Cox's preparation or that he had a “plan to perpetrate his crime,” by seeing if K.N. would remain silent following the abuse. Appellee's Br. at 18. We therefore hold that K.N.’s testimony was admissible to prove Cox's intent, preparation, plan, or lack of accident.

[20] In any event, even if K.N.’s testimony did not fall into the exception outlined in Rule 404(b)(2), any error in its admission was harmless. It is well settled “that a claim of error in the admission or exclusion of evidence will not prevail on appeal ‘unless a substantial right of the party is affected.’ ” Troutner v. State, 951 N.E.2d 603, 612 (Ind. Ct. App. 2011) (quoting Pruitt v. State, 834 N.E.2d 90, 117 (Ind. 2005)), trans. denied. That is, even if the trial court errs in admitting or excluding evidence, this Court will not reverse the defendant's conviction if the error is harmless. Caesar v. State, 139 N.E.3d 289, 292 (Ind. Ct. App. 2020). We “consider the likely impact of the improperly admitted or excluded evidence on a reasonable, average jury in light of all the evidence in the case.” Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023). “Ultimately, the error's probable impact is sufficiently minor when—considering the entire record—our confidence in the outcome is not undermined.” Id.

[21] Here, during trial, K.N. testified at length and in detail about the instant offense. Indeed, she testified without wavering that she fell asleep in Cox's bed and woke up with his penis in her anus, which caused her pain and bleeding. In addition, Ke.N. corroborated K.N.’s testimony. Specifically, he testified that, when he heard K.N. scream, he ran into Cox's room, saw K.N. bent over the bed, and saw Cox zipping his shorts. He also testified that he saw K.N. crying and walking with a limp shortly after. Further, Whitney testified that both K.N. and Ke.N. had told her that Cox had touched K.N., which caused her to call the authorities. And K.N., Ke.N., and Whitney all testified that, after that weekend at Cox's house, K.N. exhibited numerous changes to her behavior, including isolating herself from family, dropping out of a specialized school program, failing her classes, and ceasing sports.

[22] Having considered the entire record, we can say with confidence that the probable impact of K.N.’s testimony that Cox had previously touched her inappropriately was sufficiently minor so as to not affect Cox's substantial rights. Thus, even if there were any error in the admission of K.N.’s testimony, any error would have been harmless.

Conclusion

[23] Any error in the admission of Whitney's testimony about K.N.’s disclosure was merely cumulative of other testimony in the record. Further, K.N.’s testimony about prior wrongful acts by Cox was admissible under Evidence Rule 404(b). But even if it were not admissible, any error would be harmless in light of the extensive evidence in front of the jury. We therefore affirm Cox's convictions.⁵

[24] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-3(a) (2022).

2.   I.C. § 35-50-2-14(b).

4.   Cox objected to Whitney's testimony on hearsay grounds, but the court admitted it as an excited utterance. See Tr. Vol. 2 at 185-186. Cox does not challenge that ruling on appeal.

5.   In his Statement of the Issues, Cox also asserts that the State presented insufficient evidence to support his conviction for Child Molesting. However, Cox does not make a separate argument on that issue in his Argument section. He has therefore waived any review of that purported issue. See Ind. Appellate Rule 46(A)(8)(a).

Bailey, Judge

Tavitas, J., and Kenworthy, J., concur.