MORGAN v. STATE (2025)

MEMORANDUM DECISION

[1] Domonique Jaquaha Morgan appeals his convictions for three counts of Level 1 felony child molesting and two counts of Level 4 felony child molesting following a jury trial. Morgan presents two issues for our review:

1. Whether the trial court abused its discretion when it excluded certain evidence under Evidence Rule 412.

2. Whether his sentence is inappropriate in light of the nature of the offenses and his character.

[2] We affirm.

Facts and Procedural History

[3] During the morning of July 24, 2020, nine-year-old A.P. and her eight-year-old friend A.J. were having a sleepover at A.P.’s house. A.P.’s mother, J.P., had left the house for work at approximately 5:30 a.m., but J.P.’s boyfriend, Morgan, was home with the girls, who were sleeping in A.P.’s room with A.P.’s two younger sisters. A.J. woke up to find Morgan with “lotion on his hands” and “touching [her] vagina.” Tr. Vol. 2, p. 178. Morgan then left, but he returned and picked up A.J. and carried her to his bedroom. Morgan put A.J. down on his bed, and he proceeded to watch a video on his phone. Morgan then returned A.J. to A.P.’s room, and A.J. woke A.P. up, but she did not say anything about Morgan to A.P.

[4] A.J. took a shower, and Morgan came into the bathroom. Morgan told her that her “body was beautiful.” Id. at 152. When A.J. got out of the shower, Morgan Court of Appeals of Indiana | Memorandum Decision 24A-CR-1620 | March 5, 2025 Page 2 of 12 showed her “photos on his phone of his private areas.” Id. Then Morgan left. Again, A.J. did not say anything to A.P. about what had happened.

[5] A.J. and A.P. started playing together. After approximately thirty minutes, Morgan approached A.P. and began “dry humping” her from behind. Id. at 153. Morgan did the same thing to A.J. before he left the room. Later, when A.J. and A.P. were playing together in A.P.’s room, Morgan told them to come to his bedroom. The girls complied. Once in his bedroom, Morgan began “sucking” on A.J.’s and A.P.’s breasts, and then Morgan inserted his penis into A.P.’s anus. Id. at 153. Morgan then “did the same thing” to A.J. Id. at 154. Morgan also used a blue vibrator on A.J.’s and A.P.’s vaginas. When A.P.’s younger sisters started knocking on the bedroom door, Morgan “kept yelling at them,” but he eventually let A.J. and A.P. leave the bedroom. Id.

[6] Finally, A.J.’s brother came over to tell her that it was time to go home. A.J. told him a “short summary” of what Morgan had done that day. Id. at 155. A.J.’s brother told their mother what had happened, and she took A.J. to the hospital for a sexual assault examination. An anal swab found DNA belonging to two people. Subsequent forensic testing showed that Morgan's DNA was found on the anal swab. Both A.J. and A.P. submitted to forensic interviews. While A.J. told the interviewer what Morgan had done, A.P. did not reveal that she was molested.

[7] The State charged Morgan with three counts of Level 1 felony child molesting and two counts of Level 4 felony child molesting. Prior to trial, the State learned that one of the victims had made a “prior accusation against a separate individual[.]” Id. at 16. The State filed a motion in limine to exclude evidence of “[a]ny prior sexual abuse allegations made by the State's witnesses” except as permitted under the Evidence Rules. Appellant's App. Vol. 2, p. 165. During a hearing on that motion, the State argued that Evidence Rule 412 supported the exclusion of the evidence. Morgan argued that he should be allowed to present the evidence because the victim's allegations against him were similar to those she previously had made against someone else. Morgan also argued that both victims had previously seen adults having sex in a manner similar to that alleged by the victims, which would explain their knowledge of such details at their young ages. At the conclusion of the hearing, the trial court granted the motion in limine with respect to evidence regarding the prior allegation against another man. With regard to the other proposed evidence, the trial court took the matter under advisement.

[8] At trial, after A.J.’s testimony, Morgan made an offer of proof regarding her prior allegation of molestation. A.J. testified that, when she was five or six years old, her babysitter's grandson “put his penis in [her] butt” on more than one occasion. Tr. Vol. 2, p.162. A.J. testified that he “bent [her] over like a couch” and had anal intercourse with her. Id. at 163. A.J. had described a similar action with respect to Morgan's molestation of her. But A.J. denied having ever seen anyone having sex before, and she denied having played with a vibrator. The trial court excluded Morgan's proffered evidence.

[9] Morgan also made a similar offer of proof when A.P. testified. A.P. denied having ever seen Morgan and her mother having sex, but she had seen them naked on their bed together. A.P. also denied having used or played with a vibrator or having engaged in sexual exploration with A.J. The trial court excluded Morgan's proffered evidence.

[10] Finally, Morgan made an offer of proof at the conclusion of J.P.’s testimony. J.P. testified that A.P. had never seen her having sex before; A.P. had not used or played with a vibrator; and A.P. had not looked at pornography on J.P.’s phone. Morgan also asked J.P. to explain her prior involvement in a DCS investigation when her son's school suspected that he was being molested. As part of the investigation, DCS conducted a “full body examination” of A.P., but the allegations were unsubstantiated. Tr. Vol. 3, p. 19. There was no evidence that A.P. had made any allegation at that time, so there was no evidence that she had made a false allegation. The trial court excluded Morgan's proffered evidence.

[11] The jury found Morgan guilty as charged. The trial court entered judgment of conviction and sentenced Morgan as follows: forty years for each Level 1 felony conviction, two to run consecutively and one to run concurrently with the sentence on Count 2; and twelve years for each Level 4 felony conviction, one to run consecutively to the sentences for Counts 1 and 2, and the other to run consecutively to the sentences for Counts 1, 2, and 4. Thus, Morgan's aggregate sentence is 104 years. This appeal ensued.

Discussion and Decision

Issue One: Exclusion of Evidence

[12] Morgan first contends that the trial court abused its discretion when it excluded the testimony he had elicited in his offers of proof. He argues that the trial court “abused its discretion when it did so because it misinterpreted Evidence Rule 412, violated Morgan's Right to Present a Defense, and failed to appropriately apply the ‘sexual innocence inference theory.’ ” Appellant's Br. at 15. We do not agree.

[13] A trial court has broad discretion regarding the admission of evidence, and its decisions are reviewed only for abuse of discretion. Hall v. State, 177 N.E.3d 1183, 1193 (Ind. 2021). We will reverse only if the trial court's ruling was clearly against the logic and effect of the facts and circumstances before it and the errors affect a party's substantial rights. Id.

[14] Evidence Rule 412 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.

[15] Morgan maintains that the trial court's exclusion of the evidence he set out in his offers of proof violated his right to present a defense under both the Sixth Amendment to the United States Constitution and Article 1, Section 13 of the Indiana Constitution. However, as this Court has explained,

[these rights are] not absolute. Tague v. Richards, 3 F.3d 1133, 1137 (7th Cir. 1993). “[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294, 88 L. Ed. 2d 15 (1985). “Furthermore, the right to confront witnesses ‘may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.’ ” Tague, 3 F.3d at 1137 (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 1046, 35 L. Ed. 2d 297 (1973)).

Oatts v. State, 899 N.E.2d 714, 722 (Ind. Ct. App. 2009).

[16] Morgan argues that the proffered evidence was admissible under the “sexual innocence inference theory.” Appellant's Br. at 18. That theory

is based on the premise that because most children of tender years are ignorant of matters relating to sexual conduct, a child complainant's ability to describe such conduct may persuade the jury that the charged conduct in fact occurred. To demonstrate that the child had acquired sufficient knowledge to fabricate a charge against the defendant, the theory reasons, the court should allow the defense to offer evidence that the child acquired sexual experience with someone else before he or she accused the defendant.

Id. at 724 (quoting Grant v. Demskie, 75 F. Supp. 2d 201, 213 (S.D.N.Y. 1999) (internal citations omitted)). This Court has held that a defendant who seeks to admit evidence pursuant to this theory bears the burden “to show that the prior sexual act occurred and that the prior sexual act was sufficiently similar to the present sexual act to give the victim the knowledge to imagine the molestation charge.” Id.

[17] Morgan states that the crux of his defense was impeaching A.J. and that his right to present that defense was undermined by the exclusion of her testimony regarding the prior molestations by another person. He argues that those prior molestations were “remarkably similar” to what she alleges Morgan did to her. Appellant's Br. at 19. In particular, he states that

A.J.’s accusations against Morgan in this case include that he bent A.P. over a space heater and hit her with his penis. (Tr. Vol. II p. 107). She also accused Morgan of bending her over a space heater and dry humping her. (Tr. Vol. II p. 198-99). A.J. further accused Morgan of putting his penis in her butt. (Tr. Vol. II p. 190). These accusations are remarkably similar to the prior molestation by her babysitter's [grand]son. Indeed, in Defense Counsel's offer of proof, A.J. testified that when she was five or six years old, the [grand]son of her babysitter “put his penis in [her] butt.” (Tr. Vol. II p. 162). She also testified that this individual bent her over the couch and did “sexual things,” including that he sodomized her. (Tr. Vol. II p. 162-63). This Court should conclude that this case fits squarely within the “sexual innocence inference theory” as articulated by this Court in Oatts.

Id.

[18] Morgan argues that

the need for sufficient similarity is only to ensure that the prior acts of abuse gave the alleged victim the ability to contrive the allegations underlying the charged offenses. Here, collectively, the prior abuse gave A.J. all of the details necessary to contrive all of the details of the charged offenses.

Reply Br. at 8. Morgan appears to suggest that, once he showed the similarities in the allegations, the trial court was required to admit the evidence. However, while some of the details are similar, the victims testified about additional and quite different details of Morgan's abuse. We cannot say that the trial court abused its broad discretion when it excluded the proffered evidence.

[19] Likewise, Morgan has not shown that the trial court abused its discretion when it excluded the other proffered evidence. Morgan's offers to prove did not support his arguments that A.J. and A.P. had previously observed other people having sex, either in person or in videos, or that A.J. and A.P. had previously played with or used a vibrator. Neither did the proffered evidence of A.P.’s involvement in a prior DCS investigation triggered by her brother satisfy Morgan's burden to prove its relevance.

[20] For all these reasons, we cannot say that the trial court abused its discretion when it excluded evidence.

Issue Two: Sentence

[21] Morgan next contends that his sentence is inappropriate in light of the nature of the offenses and his character. The trial court imposed the maximum sentence for each conviction and ordered some to run consecutively and some to run concurrently for an aggregate sentence of 104 years. See Ind. Code §§ 35-50-2-4, -5.5.

[22] Under Indiana Appellate Rule 7(B), we may modify a sentence that we find is “inappropriate in light of the nature of the offense and the character of the offender.” Making this determination “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Sentence modification under Rule 7(B), however, is reserved for “a rare and exceptional case.” Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018) (per curiam).

[23] When conducting this review, we generally defer to the sentence imposed by the trial court. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). That deference will prevail unless the defendant persuades us the sentence is inappropriate by producing compelling evidence portraying in a positive light the nature of the offense—such as showing restraint or a lack of brutality—and the defendant's character—such as showing substantial virtuous traits or persistent examples of positive attributes. Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018) (per curiam); Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[24] Morgan argues that the nature of the offenses was not especially egregious. He points out that he did not threaten the girls with violence or use physical force against them. But Morgan ignores the fact that he held a position of trust with A.P., which is a significant aggravating factor. See Singer v. State, 674 N.E.2d 11, 14 (Ind. Ct. App. 1996) (noting that abusing a position of trust, without more, supports the maximum enhancement of a sentence for child molesting). Further, the fact that he assaulted two victims supports consecutive sentences. See Pittman v. State, 885 N.E.2d 1246, 1259 (Ind. 2008) (noting that consecutive sentences reflect the significance of multiple victims). Finally, each victim witnessed the other's assault. We cannot say that Morgan's sentence is inappropriate in light of the nature of the offenses.

[25] Morgan next argues that, because his criminal history is “relatively minor” and he does not qualify as “the worst of offenders,” his sentence is inappropriate in light of his character. Appellant's Br. at 28. But Morgan does not make any attempt to show either substantial virtuous traits or persistent examples of positive attributes. See Stephenson, 29 N.E.3d at 122. His criminal history includes one felony and three misdemeanor convictions over a span of fourteen years. All in all, we cannot say that his sentence is inappropriate in light of his character.

[26] For all these reasons, we affirm Morgan's convictions and sentence.

[27] Affirmed.

Mathias, Judge.

Foley, J., and Felix, J., concur.