DOWNEY v. STATE (2025)

MEMORANDUM DECISION

[1] Thomas Downey appeals his ten convictions for Level 1 felony child molesting, his conviction for Class A felony child molesting, and his conviction for Level 6 felony child molesting. Downey raises two issues for our review, which we consolidate and restate as whether the trial court committed reversible error when it excluded certain evidence. We hold that no reversible error occurred. Accordingly, we affirm Downey's convictions.

Facts and Procedural History

[2] In 2015, Downey and his now ex-wife, Debra, lived together in Marion County. They had four children together, including minor daughters Li.D. and A.D. The children had several minor cousins who frequently visited the house, including Downey's nieces B.H., L.H., Z.H., and O.M. And Li.D. was friends with minor girl L.T., who also visited the house.

[3] On at least three occasions around 2017, when O.M. was six years old and visiting Downey's house, Downey forced O.M. to perform oral sex on him. On at least one other occasion, he masturbated in front of O.M. On at least one occasion, Downey fondled O.M.’s vagina. And, on at least one occasion when O.M. and Z.H., who was about one year younger than O.M., were at Downey's house together, Downey forced them both to perform oral sex on him at the same time. Around that same timeframe, Downey also forced Z.H. to fondle him and to perform oral sex on him.

[4] On at least one occasion when L.H. was about nine years old, Downey forced her to perform oral sex on him. On multiple occasions when B.H. was between nine and eleven years old, Downey forced her to perform oral sex on him. And, when L.T. was around nine or ten years old and visiting the house, Downey forced her to perform oral sex on him. L.H., B.H., Z.H., and L.T. all later testified to a similar modus operandi used by Downey to have them perform oral sex on him: he would invite one of them to play a “guessing game,” blindfold her, place a substance on his penis, and then insert his penis into her mouth and have her “guess the flavor.” Tr. Vol. 2, pp. 142-48, 214-19; Tr. Vol. 4, pp. 64-70, 171.

[5] The State eventually charged Downey with ten counts of Level 1 felony child molesting, one count of Class A felony child molesting, and one count of Level 6 felony child molesting. During a pretrial deposition, O.M. testified that, “almost every time” Downey had molested her, he also showed her pornography videos. Appellant's App. Vol. 3, p. 52. O.M. further testified that that was her first exposure to pornography; she later learned how to look up pornography on the internet. She and her cousins, including Li.D., L.H., and Z.H., would watch pornography together, and they would “[s]ometimes” then “try to do what [they] saw in those videos,” including engaging in oral sex. Id. at 44. Similarly, both Z.H. and Li.D. also stated in pretrial depositions that they had engaged in sexual activities with O.M. Li.D. further stated that O.M. had told her of having engaged in sexual activities with other cousins, including L.H. and Z.H. Both O.M. and Li.D. stated in their depositions that O.M. had been caught by an adult on at least two of those occasions and had gotten in trouble for it.

[6] Downey filed a motion to have the several pretrial depositions declared admissible under Indiana Evidence Rule 412. After a hearing, the trial court denied Downey's motion. During his ensuing jury trial, Downey again asked the court to allow him to use the depositions as evidence, and the court again denied his requests. Downey also sought to have new testimony of his daughters Li.D. and A.D. admitted into evidence; they would have testified to sexual activities they had engaged in with L.H. and with each other. The trial court excluded that proffered testimony as well.

[7] L.T., L.H., O.M., B.H., and Z.H. testified against Downey. Each testifying child identified Downey as the perpetrator of the molestations she had experienced. L.H., B.H., Z.H., and L.T. each described the “game” to which Downey had subjected them. See, e.g., Tr. Vol. 4, p. 65. Z.H. also corroborated O.M.’s testimony that, on at least one occasion at Downey's house, he had the two of them simultaneously perform oral sex on him.

[8] Thereafter, a jury found Downey guilty as charged. The court entered its judgment of conviction and sentenced Downey to an aggregate sentence of 210 years in the Department of Correction.

[9] This appeal ensued.

Discussion and Decision

[10] On appeal, Downey contends that the trial court erred when it excluded his attempt to have the pretrial depositions and Li.D.’s and A.D.’s proffered testimony admitted into evidence under Indiana Evidence Rule 412. That Rule provides in relevant part as follows:

(a) Prohibited Uses.

The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:

(1) evidence offered to prove that a victim or witness engaged in other sexual behavior; or

(2) evidence offered to prove a victim's or witness's sexual predisposition.

(b) Exceptions.

(1) Criminal Cases.

The court may admit the following evidence in a criminal case:

(A) evidence of specific instances of a victim's or witness's sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;

(B) evidence of specific instances of a victim's or witness's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and

(C) evidence whose exclusion would violate the defendant's constitutional rights. ․

Ind. Evidence Rule 412.

[11] Downey first contends that the trial court misinterpreted Rule 412 and, in having done so, then misapplied it. According to Downey, because Rule 412 begins with “Prohibited Uses,” by implication anything not identified as prohibited is admissible. See Appellant's Br. at 14-15. And Downey asserts that, while the evidence he sought to have admitted “does reveal other sexual behavior” by the children witnesses, “none of Downey's intended uses were to prove the behavior” and, thus, his attempt to use the evidence in question was not prohibited. Id. (emphasis added).

[12] Instead, he continues, he sought to have the excluded testimonies admitted in order to show each of the following: that O.M. had falsely stated that Li.D. had engaged her in sexual activity; that O.M. and L.H. had a motive to lie about the molestations in order to avoid getting in trouble for other sexual behaviors; that O.M. and several other children had learned of sexual behaviors from a source other than Downey; and that Z.H. had initially denied having been molested. Id. at 18-19.¹ Downey also contends that, even if those attempted uses of the excluded testimonies is captured by Rule 412(a), they are excepted from prohibition under Rule 412(b)(1)(C) because each of the attempted uses goes to Downey's constitutional rights to present a defense and confront and cross-examine the witnesses.

[13] Assuming for the sake of argument that the trial court erred in excluding Downey's desired evidence, and assuming further that any such error was of a constitutional dimension, we agree with the State that any error was harmless beyond a reasonable doubt. See, e.g., Ramirez v. State, 174 N.E.3d 181, 192-93 (Ind. 2021). Downey's assertion that O.M. falsely accused Li.D. of engaging her in sexual activity is not supported by the record, as Li.D. agreed that she and O.M. had engaged in that behavior. See Appellant's App. Vol. 3, p. 250. Downey's attempt to use the excluded testimonies to show that O.M. had a motive to lie in order to avoid getting in trouble is, in relevant part, surplusage, as O.M. testified to the jury that she first informed an adult of Downey's molestations of her after she had gotten into trouble. Tr. Vol. 3, pp. 73-78. And Downey's attempt to use the excluded testimonies to show that L.H. had a motive to lie is unsupported by those testimonies.

[14] Similarly, while the excluded testimonies make clear that several of the children had engaged in sexual activities with each other and had exposed each other to pornography, nothing in those testimonies demonstrates that any of that behavior pre-dated Downey's molestations of them or his exposure of pornography to them. Indeed, O.M.’s deposition testimony makes clear that Downey's actions came first. Appellant's App. Vol. 3, p. 51. Thus, nothing in the excluded testimonies supports Downey's assertion that those testimonies would have shown that the children first learned of sexual behaviors from a source other than Downey. Finally, with respect to Downey's assertion that he could have used the excluded testimonies to impeach Z.H. for initially denying that she had been molested, he did impeach Z.H. on exactly that point in front of the jury. Tr. Vol. 4, pp. 188-90.

[15] Thus, Downey's purported uses of the excluded testimonies had little to no substantial value. Meanwhile, the testimonies of his several victims to the jury painted a clear and consistent picture of Downey as a serial child molester. Several of the witnesses’ testimonies corroborated one another, including several of his victims each testifying to the same modus operandi used by Downey to force them to perform oral sex on him. Nothing in how Downey attempted to use the excluded testimonies would have affected a reasonable juror in any way. Accordingly, even if the trial court erred in excluding the relevant testimonies, we hold that any such error was harmless beyond a reasonable doubt.

Conclusion

[16] For all of these reasons, we affirm Downey's convictions.

[17] Affirmed.

FOOTNOTES

1.   Downey's brief bulletpoints all of his attempted uses of the excluded evidence and then separately bulletpoints all of the apparent supporting record citations. See Appellant's Br. at 18-19. Downey's approach here was less than ideal: it created an unnecessary burden on this Court to pair citations to assertions when Downey could have instead simply provided a citation after each assertion to show that relationship clearly.

Mathias, Judge.

Brown, J., and Kenworthy, J., concur.