Billy R. Brooks, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2024)

MEMORANDUM DECISION

Vaidik, Judge.

Case Summary

[1] Billy R. Brooks, Jr., appeals his convictions for Level 4 felony child molesting and Level 5 felony sexual misconduct with a minor, arguing that the trial court erred in allowing certain so-called vouching testimony and that his sentence is inappropriate. We affirm.

Facts and Procedural History

[2] In 2019, Brooks rented a room in his two-bedroom trailer to W.R., a friend from the neighborhood. W.R. has a daughter, A.R., who was born in December 2011. W.R. moved in with Brooks after he and A.R.’s mother separated, and A.R. started spending weekends with W.R. at Brooks's home. A.R. has one sister who has a different father but sometimes went to Brooks's trailer when A.R. was there visiting W.R.

[3] One night around Halloween 2019, Brooks was babysitting A.R., then seven, while W.R. was at a party. Other than watching A.R. for short periods while W.R. ran errands, this was the first time Brooks babysat A.R. After A.R. showered, the two were sitting on the couch together, and Brooks asked A.R. if he could put lotion on her. He then asked her to take her shirt off, and she did because she “was young” and “didn't really know what to do.” Tr. Vol. II p. 198. Brooks “started lotioning [her] stomach” and then “lotioning [her] breasts.” Id. at 198, 199. He asked A.R. to take her pants off, which she did, and then he put a blanket over her. A.R. was completely naked, and Brooks began putting lotion on her feet and legs. He started around her shins and ankles and moved up to her knees and thighs. Brooks then “lotion[ed] [her] vagina” and “rubbed like around it” and “on top of it.” Id. at 200-01. Brooks was “breathing heavy” and told A.R., “If anyone comes in, put your pants on.” Id. at 222. After he stopped touching her, Brooks said, “What happens in Bill's house, stays in Bill's house.” Id. at 201. A.R. didn't tell W.R. what happened, but after that night, W.R. noticed that A.R. became hesitant to come over and visit.

[4] A couple of months later, A.R. was inside the trailer watching TV while W.R. was outside with some friends. Brooks was sitting on the couch and asked A.R. to sit on his lap. Once she was on his lap, he asked her if she “could feel something.” Id. at 205. She told him she couldn't, and he said, “You can't feel anything?” Id. A.R. then “felt his penis on [her] butt,” and it was “hard.” Id. A.R. “got uncomfortable,” so she got up and went outside with W.R. Id. at 225.

[5] Around two-and-a-half years later, in June 2022, A.R. and her sister were talking about how they didn't like Brooks and were “uncomfortable” around him. Id. at 196. During the conversation, A.R. told her sister what Brooks had done to her. A.R.’s sister reported her disclosure to their mother, who then told W.R. A.R. eventually told each of her parents about the two incidents with Brooks. By the time W.R. learned about the incidents, he'd moved out of Brooks's trailer and into his own. Once he got his own place, A.R. started visiting regularly again and was back to her usual behavior.

[6] On June 15, Mechan Hochstein, a forensic interviewer, spoke with A.R, then ten, at the Child Advocacy Center. A.R told Hochstein about both incidents with Brooks.

[7] Two weeks later, Portage Police Department Detective Anthony Dandurand interviewed Brooks. At the beginning of the interview, Brooks said, “The only thing I'm guilty of ․ is that I put lotion on her.” Ex. 2 at 5:21. Brooks recalled that he babysat A.R. one night while W.R. was at a Halloween party. Brooks claimed that A.R. asked him to put lotion on her. He admitted putting the lotion on A.R.’s arms, legs, and back while they were on the couch but insisted he didn't touch her inappropriately. He also admitted he had A.R. lift up her shirt so he could get her back but said she never took off her clothes, he never asked her to, and he'd never seen her naked. Brooks explained that he rubbed the lotion on A.R.’s thighs and down her calves and gestured that he put it on her upper thighs but said he didn't go underneath her shorts. Id. at 17:50. Later in the interview, Brooks said he could've “accidentally touched her” when he and W.R. were “playing with her” or “tickling her,” but he wasn't sure where he may have touched her because she was “squirming around.” Id. at 28:48, 33:24.

[8] Detective Dandurand spoke with Brooks again the next day. At first, Brooks maintained that he didn't touch A.R. inappropriately. When Detective Dandurand suggested Brooks might have “accidentally touched” A.R. inappropriately, Brooks said, “maybe she moved and I didn't realize it. ․ In my head, I didn't do it intentionally.” Id. at 77-78. Brooks then told Detective Dandurand he “accidently touched her vagina” with his index finger while “rubbing the lotion up under her thigh.” Id. at 61, 62.

[9] In October 2022, the State charged Brooks with Level 4 felony child molesting and Level 5 felony sexual misconduct with a minor.

[10] A jury trial was held in August 2023. During the trial, forensic interviewer Hochstein testified about her interview with A.R. She explained that A.R. told her what happened and who did it to her, that she “gave good descriptions,” and that her answers were “age-appropriate” and included terminology expected of a ten-year-old. Tr. Vol. III p. 21. When the State asked her whether “what [A.R.] was saying ma[de] sense” or “seem[ed] incredible,” Hochstein answered that it made sense, and defense counsel objected on vouching grounds. Id. at 22. The trial court overruled the objection, finding that the testimony was “not vouching and it's also not invading the province of the jury.” Id. Hochstein later explained that when interviewing a child, she'll let the child give a general overview of what happened and then go back and clear up the details to make sure she doesn't miss anything. Hochstein testified, without objection, that A.R.’s version remained consistent.

[11] The jury found Brooks guilty as charged. At sentencing, the trial court found three aggravators: (1) Brooks has a criminal history, which the court didn't give “much weight” because his prior convictions are mainly alcohol- and drug-related crimes, not sex crimes; (2) the victim was “significantly less” than twelve years old; and (3) Brooks was in a position of control over the victim. Id. at 150. The court found as mitigators that Brooks suffers from PTSD and is a veteran. Finding the aggravators to outweigh the mitigators, the court sentenced Brooks to twelve years for Level 4 felony child molesting, all executed, and to six years for Level 5 felony sexual misconduct with a minor, with three of the six years executed and three suspended to probation. The court ordered the sentences to be served consecutively, for a total term of fifteen years in the Department of Correction and three years suspended to probation.

[12] Brooks now appeals.

Discussion and Decision

I. The trial court did not commit reversible error in admitting Hochstein's testimony

[13] Brooks argues the trial court erred in admitting certain portions of Hochstein's testimony. Generally, trial courts have broad discretion in ruling on the admissibility of evidence, and we review only for an abuse of that discretion. Chambless v. State, 119 N.E.3d 182, 188 (Ind. Ct. App. 2019), trans. denied. An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances. Id.

[14] Brooks first contends the trial court erred in overruling his vouching objection to Hochstein's testimony that A.R.’s statements during the forensic interview “made sense.” Vouching testimony is prohibited by Indiana Evidence Rule 704(b), which provides that “[w]itnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.” Such testimony invades the province of the jury in determining what weight to give a witness's testimony. Gutierrez v. State, 961 N.E.2d 1030, 1034 (Ind. Ct. App. 2012). “[I]t is essential that the trier of fact determine the credibility of the witnesses and the weight of the evidence.” Id.

[15] When Hochstein testified that A.R.’s story “made sense” rather than “seem[ed] incredible,” a logical interpretation of her answer is that A.R.’s story was, in fact, credible. Thus, even though Hochstein never directly stated that she believed A.R.’s story or that A.R. was telling the truth, her statement was effectively a comment on the truthfulness of A.R.’s story, which is indirect vouching. See Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012) (finding witnesses’ responses were comments on the victim's truthfulness where State's question “necessarily require[d] the witness to pass judgment on [the victim]’s allegations, or ‘story’ ”), reh'g denied.

[16] Nevertheless, an evidentiary error does not require reversal if it was harmless. Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023), reh'g denied, cert. denied. An error is harmless “where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.” Id. (quoting Ind. Appellate Rule 66(A)). Under the “probable impact” test, the party seeking relief bears the burden of demonstrating how, in light of all the evidence, the error's probable impact undermines confidence in the outcome of the proceeding below. Id. Error in the admission of evidence is harmless if we are satisfied the conviction is supported by substantial independent evidence of guilt such that there is little likelihood the challenged evidence contributed to the verdict. Hoglund, 962 N.E.2d at 1238.

[17] There is substantial evidence of Brooks's guilt beyond Hochstein's testimony that A.R.’s story made sense. A.R. testified consistently at trial about what happened during each incident. Brooks confirmed that he'd been babysitting A.R. one night and that he put lotion on her. Though he claimed it was an accident, he admitted touching her vagina with his index finger while rubbing the lotion under her thigh. W.R. testified that A.R. became hesitant to visit him at Brooks's home after the incidents but resumed regular visits once he got his own place. And Hochstein testified that A.R. told her what happened and who did it to her and that her answers were descriptive and age-appropriate. In light of this substantial independent evidence of guilt, any error in admitting Hochstein's testimony that A.R.’s statements made sense was harmless. See id. at 1238, 1240; see also Housand v. State, 162 N.E.3d 508, 514 (Ind. Ct. App. 2020) (“[W]e cannot conclude that this isolated statement in the course of a two-day trial affected Housand's substantial rights, especially in light of his admissions to [the detective] and his ample opportunities to question [the victim's] credibility.”), trans. denied.

[18] Brooks also claims Hochstein's testimony that A.R.’s version of events remained consistent was impermissible vouching.¹ Brooks acknowledges that he failed to object to this testimony at trial and therefore must establish fundamental error on appeal.

[19] Failure to object to the admission of evidence at trial generally results in waiver and precludes appellate review unless the admission constitutes fundamental error. Halliburton v. State, 1 N.E.3d 670, 678-79 (Ind. 2013). “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.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014), reh'g denied. 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. Id. “Where evidence of guilt is overwhelming any error in the admission of evidence is not fundamental.” Halliburton, 1 N.E.3d at 683 n.7.

[20] When the State asked Hochstein if A.R.’s version of events remained consistent, Hochstein had just explained that during the interview, A.R. repeated what happened twice because after a child gives a general account of what happened, she'll go back and clear up the details. Hochstein's affirmative answer to the State's question was a statement that A.R.’s story stayed the same throughout the interview. It was not an opinion that A.R.’s story was true or that her testimony at trial was consistent with what she said during the interview.

[21] In support of this challenge, Brooks cites Wilkes v. State, 7 N.E.3d 402 (Ind. Ct. App. 2014), where we found the investigating detective's testimony amounted to indirect vouching. But Wilkes does not help Brooks. The detective there testified that the victim's reports of sexual abuse were consistent, but this wasn't the only testimony at issue—the detective also stated that he didn't know why the victim would lie about the allegations and didn't think the victim's mother encouraged him to make them up. Id. at 405. And despite these numerous statements, the court found that admission of the vouching testimony was harmless given the other evidence in the record. Id. at 405-06.

[22] Following Wilkes, even if Hochstein's testimony that A.R.’s version of events remained consistent was impermissible vouching, its admission was harmless—and certainly did not rise to the level of fundamental error. As outlined above, there is overwhelming evidence of Brooks's guilt. See Neal v. State, 175 N.E.3d 1193, 1198 (Ind. Ct. App. 2021) (finding no fundamental error in light of “plethora of unchallenged evidence” independently supporting child-molesting conviction, including victim's unequivocal testimony, parents’ testimony that victim's behavior changed after the molestation, and forensic interviewer's testimony that victim was “articulate”), trans. denied; Sampson v. State, 38 N.E.3d 985, 992-93 (Ind. 2015) (finding no fundamental error in admission of testimony that child sexual-abuse victim didn't show signs of being coached where victim's testimony was unwavering and defendant admitted many of the details recounted by the victim). The trial court did not commit fundamental error in allowing Hochstein's testimony that A.R.’s version of events remained consistent.

II. Brooks's sentence is not inappropriate

[23] Brooks also asks us to reduce his sentence under Indiana Appellate Rule 7(B), which provides that an appellate court “may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” The appellate court's role under Rule 7(B) is to “leaven the outliers,” and “we reserve our 7(B) authority for exceptional cases.” Faith v. State, 131 N.E.3d 158, 159-60 (Ind. 2019) (quotation omitted). “Whether a sentence is inappropriate ultimately turns on the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the judgment of trial courts in sentencing matters, defendants must persuade us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016).

[24] The sentencing range for a Level 4 felony is two to twelve years, with an advisory sentence of six years. Ind. Code. § 35-50-2-5.5. And the sentencing range for a Level 5 felony is one to six years, with an advisory sentence of three years. I.C. § 35-50-2-6(b). Thus, Brooks faced up to eighteen years in prison. The trial court imposed consecutive sentences of twelve years for Level 4 felony child molesting and six years for Level 5 felony sexual misconduct with a minor for a total term of eighteen years, with three of those years suspended to probation.

[25] As to the nature of the offense, Brooks asks us to reduce his sentence to no greater than concurrent, advisory-level terms for each conviction, arguing the offenses are “not significantly more egregious than other Level 4 child molesting and Level 5 sexual misconduct allegations.” Appellant's Br. p. 21. We disagree. Brooks took advantage of A.R. while she was entrusted to his care. While babysitting A.R. when her father was out for the night, Brooks rubbed lotion on her breasts and vagina. A few months later, while W.R. was outside with friends, Brooks had A.R. sit on his lap while his penis was “hard” and asked if she could “feel anything.” And Brooks told A.R., “What happens in Bill's house, stays in Bill's house.” Brooks's position of control over A.R. supports a longer sentence. See Edrington v. State, 909 N.E.2d 1093, 1097 (Ind. Ct. App. 2009) (finding defendant's “position of trust or care” permitted enhanced sentence), trans. denied. Additionally, A.R. was between seven and nine years old when the incidents occurred, whereas the child-molesting statute applies to victims as old as thirteen, see I.C. § 35-42-4-3, and the sexual-misconduct-with-a-minor statute applies to victims as old as fifteen, see I.C. § 35-42-4-9. A victim's age “suggests a sliding scale in sentencing, as younger ages of victims tend to support harsher sentences.” Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011).

[26] Nevertheless, Brooks contends consecutive sentences are inappropriate because his convictions involved “the same or similar conduct” with the same victim. Appellant's Br. p. 23. He directs us to three child sexual-abuse cases in which our Supreme Court revised sentences from consecutive to concurrent. See Harris v. State, 897 N.E.2d 927 (Ind. 2008); Monroe v. State, 886 N.E.2d 578 (Ind. 2008); Walker v. State, 747 N.E.2d 536 (Ind. 2001). But in each of those cases, the counts were “identical and involved the same child.” Harris, 897 N.E.2d at 930; Monroe, 886 N.E.2d at 580; Walker, 747 N.E.2d at 538. Here, while A.R. was the victim in both, the counts were not identical—they involved significantly different conduct, and indeed, Brooks was charged under a different statute for each. Brooks has failed to convince us that the nature of his offenses warrants a reduced sentence.

[27] Brooks's character doesn't support a reduction in his sentence either. Brooks highlights that he is a veteran suffering from PTSD and that his criminal history consists of mainly alcohol- and drug-related offenses. But Brooks's criminal history is still fairly long—one felony and seven misdemeanors—and he “has a history of violating community supervision placements which have been met with negative results.” Appellant's App. Vol. II p. 116. Brooks has not persuaded us that his sentence is inappropriate.

[28] Affirmed.

FOOTNOTES

1.   Brooks also raises Rule 704(b) challenges to portions of W.R.’s and Detective Dandurand's testimony, to which he didn't object at trial. W.R. testified explaining when he learned about “what happened” and that he “cut off all ties” with Brooks “[u]pon learning of the first incident.” Tr. Vol. II pp. 244, 245. Detective Dandurand testified about when he learned of “the event” compared to “when it occurred,” and that after his first interview of Brooks, he determined “it occurred” between 2019 and 2020. Tr. Vol. III pp. 47, 61. Brooks contends this testimony constitutes impermissible vouching because it “implied that they believed A.R.’s version of events.” Appellant's Br. p. 12. But these statements aren't opinions concerning the truth or falsity of A.R.’s allegations or her testimony—in fact, they aren't opinions at all. W.R. merely recounted when he learned of the allegations and how he personally reacted. Detective Anderson simply explained when A.R.’s disclosure became known to him and the timeline he determined based on his investigation. Brooks's challenges to this testimony are without merit.

Memorandum Decision by Judge Vaidik

Judges Weissmann and Foley concur. Weissmann, J., and Foley, J., concur.