Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BERNICE A. N. CORLEY GREGORY F. ZOELLER
Appellate Panel Attorney Attorney General of Indiana
Marion County Public Defender
Indianapolis, Indiana IAN McLEAN
Deputy Attorney General
Indianapolis, Indiana
Sep 11 2014, 9:03 am
IN THE
COURT OF APPEALS OF INDIANA
THOMAS BOOKER, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1402-CR-107
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Sheila A. Carlisle, Judge
The Honorable Stanley E. Kroh, Magistrate
Cause No. 49G03-1310-FB-65733
September 11, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
A jury convicted Thomas Booker of class B felony criminal deviate conduct stemming
from his sexual assault of a partially paralyzed stroke victim. He now appeals, challenging
the sufficiency of the evidence to support his conviction and claiming that fundamental error
occurred when the trial court admitted certain statements that he made to police. We affirm.
Facts and Procedural History
In 2013, forty-nine-year-old B.M. suffered a stroke, which left her speech-impaired,
paralyzed on her left side, and wheelchair-bound. After a lengthy hospital stay, she was
transferred to Rosewalk Village (“Rosewalk”) skilled nursing facility in Indianapolis for
rehabilitation. During her three-month stay at Rosewalk, her adult son Kendall often visited
her. During one visit, Kendall encountered Booker, whom he and B.M. had known as an
acquaintance from church. Booker explained that his wife was a patient at Rosewalk, and he
asked the location of B.M.’s room. Thereafter, Booker visited with Kendall and B.M. from
time to time.
Between 9:00 and 10:00 p.m. on Friday, October 4, 2013, after B.M. had been tucked
in by Rosewalk staff, Booker entered her room. She awoke to find Booker sitting on her bed.
Booker touched her breasts and digitally penetrated her vagina, and she asked him to stop and
to leave. At first, he did not stop. She then told him that Kendall was due to arrive soon, and
he left.
The next day, B.M. reported the incident to Rosewalk personnel. By Sunday, Kendall
was aware of the incident. When he came to visit his mother, he saw Booker and confronted
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him. He told a Rosewalk employee to call the police because Booker was the person who
had assaulted his mother. When Booker attempted to get to his vehicle to leave, Kendall
took his keys from him. Booker then pled with Kendall to give him the keys because the
police were on their way. When Kendall refused, Booker fled to a nearby building, where
police apprehended him.
Footage from a hallway surveillance camera showed Booker entering B.M.’s room on
the night of the assault. During an interrogation, Booker admitted to Detective Michael
Hewitt that he had entered B.M.’s room that night.
The State charged Booker with class B felony criminal deviate conduct and class D
felony sexual battery. A jury convicted him of class B felony criminal deviate conduct, and
he now appeals. Additional facts will be provided as necessary.
Discussion and Decision
Section 1 – Sufficiency of Evidence
Booker challenges the sufficiency of the evidence to support his conviction for
criminal deviate conduct. When reviewing a challenge to the sufficiency of evidence, we
neither reweigh evidence nor judge witness credibility. Drane v. State, 867 N.E.2d 144, 146
(Ind. 2007). Rather, we consider only the evidence and reasonable inferences most favorable
to the verdict and will affirm the conviction “unless no reasonable fact-finder could find the
elements of the crime proven beyond a reasonable doubt.” Id.
To convict Booker of class B felony criminal deviate conduct, the State was required
to establish beyond a reasonable doubt that he “knowingly or intentionally [caused] [B.M.] to
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perform or submit to deviate sexual conduct when [she was] compelled by force or imminent
threat of force.” Ind. Code § 35-42-4-2(a)(1) (1998).1 The presence or absence of forceful
compulsion is to be viewed “from the victim’s perspective, not the assailant’s.” Tobias v.
State, 666 N.E.2d 68, 72 (Ind. 1996). In other words, the issue is “whether the victim
perceived the aggressor’s force or imminent threat of force as compelling her compliance.”
Id.
Booker first asserts that the evidence is insufficient to support the element of forceful
compulsion. In this vein, he alleges that because B.M. neither pushed him away nor pressed
the nurse’s call button, there is no evidence that she was forcibly compelled to submit.
B.M.’s ability to physically resist Booker as he digitally penetrated her vagina and fondled
her breasts must be evaluated in light of her drowsy condition and her physical limitations.
She is a wheelchair-bound stroke victim with paralysis on her left side. Her stroke also left
her with impaired speech, which she described as “slower” and which the transcript shows to
be low in volume. Tr. at 52. She was asleep in her room for the night when she awoke to
find Booker sitting on her bed. Her condition impaired her ability to push him away, press
alert buttons, or adequately project her voice to scream for help. She did manage to tell
Booker to stop and to leave. He did not. Instead, he stood up and began to unfasten his
pants. He left only after she lied and told him that her son would be arriving soon. At trial,
she testified that she lied to Booker so that he would leave. Id. at 66-67. Based on this
1
“Deviate sexual conduct” is an act involving “the penetration of the sex organ or anus of a person by
an object.” Ind. Code § 35-31.5-2-94(2) (2012). A finger is an object for purposes of defining deviate sexual
conduct. Harwood v. State, 555 N.E.2d 513, 515 (Ind. Ct. App. 1990).
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evidence, the jury could reasonably infer that B.M. felt forcibly compelled to submit to
Booker’s advances.
Additionally, Booker characterizes B.M.’s testimony as dubious and asks that we
impinge upon the jury’s function to judge her credibility by applying the “incredible
dubiosity” rule, which states,
If a sole witness presents inherently improbable testimony and there is a
complete lack of circumstantial evidence, a defendant’s conviction may be
reversed. This is appropriate only where the court has confronted inherently
improbable testimony or coerced, equivocal, wholly uncorroborated testimony
of incredible dubiosity. Application of this rule is rare and the standard to be
applied is whether the testimony is so incredibly dubious or inherently
improbable that no reasonable person could believe it.
Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007) (citations and quotation marks omitted).
Booker characterizes inconsistencies in B.M.’s pretrial statements and trial testimony
as rendering her account inherently improbable and equivocal. For example, he claims that
she equivocated concerning the position of the door to her room. Any equivocations are
irrelevant given the surveillance video showing that Booker entered her room. Booker also
cites inconsistencies in B.M.’s testimony about whether he was in the act of digitally
penetrating her vagina when she awoke or whether he did so right after she awoke. This
minor inconsistency does not implicate whether he digitally penetrated her. Likewise, B.M.’s
testimony concerning whether Booker had unzipped his pants or had merely begun to
unfasten his pants is a minor inconsistency that does not negate an element of the offense of
which he was convicted.
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Moreover, the incredible dubiosity rule applies only where there is a complete lack of
circumstantial evidence. Here, the hallway surveillance camera footage showed Booker
entering B.M.’s room at a time and date that corroborated her account of the assault. Also,
Kendall’s testimony concerning his encounter with Booker shows Booker’s consciousness of
guilt. B.M. reported the Friday night assault to Rosewalk staff the day after it happened.
That Sunday, Kendall was aware of the assault and confronted Booker at Rosewalk. He
instructed a Rosewalk employee to “call the police because this is him.” Tr. at 112. When
Booker attempted to leave, Kendall took his keys and accused him of assaulting his mother.
Booker never denied the accusations but instead pled with Kendall to give him his keys so
that he could leave before police arrived. When Kendall refused, Booker fled to a nearby
building. “Flight shows consciousness of guilt.” Tuggle v. State, 9 N.E.3d 726, 736 (Ind. Ct.
App. 2014), trans. denied.
Based on the foregoing, we conclude that B.M.’s testimony is neither inherently
improbable nor lacking in corroboration. Thus, the incredible dubiosity rule is inapplicable,
and we must decline Booker’s invitation to reweigh evidence and judge credibility. The
evidence most favorable to the verdict is sufficient to support his conviction.
Section 2 – Admission of Evidence
Booker also maintains that the trial court committed reversible error in admitting a
statement that he made to Detective Hewitt during interrogation conceding that he went into
B.M.’s room on the night that she was molested. Ordinarily, we review a trial court’s ruling
on the admissibility of evidence using an abuse of discretion standard. Bradford v. State, 960
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N.E.2d 871, 873 (Ind. Ct. App. 2012). Here, however, Booker failed to object to the
statements at trial. Conceding this failure, he couches his claim in terms of fundamental
error.
The fundamental error exception [to the contemporaneous objection rule] is
“extremely narrow, and applies only when the error constitutes a blatant
violation of basic principles, the harm or potential for harm is substantial, and
the resulting error denies the defendant fundamental due process.” The error
claimed must either “make a fair trial impossible” or constitute “clearly blatant
violations of basic and elementary principles of due process.” This exception
is available only in “egregious circumstances.”
Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010) (citations omitted).
Here, Booker asserts that Detective Hewitt “employed tactics of deceit” to elicit his
admission that he entered B.M.’s room on the night that she was molested and that, as a
result, his admission was not voluntary. Appellant’s Br. at 8. Police deception does not
automatically render a confession inadmissible. Miller v. State, 770 N.E.2d 763, 767 n.5
(Ind. 2002). Rather, police deception during an interview is merely a factor to be considered
as part of the totality of the circumstances. Id.
Booker claims that Detective Hewitt stretched the truth during his interrogation by
telling him that law enforcement had recovered DNA from his saliva and that there was a
hidden camera inside B.M.’s room. In reality, DNA samples had been taken from B.M.’s
vagina, but no testing had yet been performed. At trial, testimony from the forensics expert
established that while the DNA tests were negative concerning Booker, such a finding was
not inconsistent with B.M.’s account of digital penetration. Moreover, while there was no
hidden camera inside B.M.’s room, the hallway surveillance camera established that Booker
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entered B.M.’s room on the night that she was molested. Thus, independent evidence
introduced at trial explained the DNA findings and corroborated his admission that he
entered B.M.’s room. Absent any evidence indicating that the interrogation was otherwise
coercive in tone or duration, the record simply does not support Booker’s assertion that his
admission was involuntarily given. In short, he has failed to establish any error, let alone
fundamental error, in the trial court’s admission of his statement to Detective Hewitt.
Accordingly, we affirm.
Affirmed.
RILEY, J., and MATHIAS, J., concur.
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