FILED
May 31 2016, 8:36 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joel C. Wieneke Gregory F. Zoeller
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mark D. Nichols, May 31, 2016
Appellant-Defendant, Court of Appeals Case No.
67A01-1510-CR-1609
v. Appeal from the Putnam Superior
Court
State of Indiana, The Honorable Charles D. Bridges,
Appellee-Plaintiff. Judge
Trial Court Cause No.
67D01-1207-FB-102
Brown, Judge.
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[1] Mark D. Nichols appeals his convictions for three counts of sexual misconduct
with a minor as class B felonies and two counts of sexual misconduct with a
minor as class C felonies. Nichols raises two issues which we revise and restate
as:
I. Whether the trial court abused its discretion in admitting evidence that
Nichols did not attend an interview with a detective or ask about the
investigation; and
II. Whether the admission of testimony by a polygraph examiner and
counselor resulted in fundamental error.
We affirm.
Facts and Procedural History
[2] M.S., born in 1997, was placed in ResCare between November 2011 and May
2012 under probationary charges “to receive treatment for perpetrating and
being the victim of sexual abuse.” Transcript at 8. M.S. resided in the Miller
Jones home which housed ten girls. During the day, two staff members were
with the girls, and one staff member was present at night. Nichols was a staff
member at the ResCare facility, which contained multiple campuses, and was
present “on and off, just dropping by occasionally at the girl’s [sic] house.” Id.
at 11.
[3] In January 2012, Neil Remaklus administered a polygraph exam to M.S. which
was “in line with [her] treatment to make sure [she] was telling the whole truth”
concerning the sexual abuse. Id. at 9.
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[4] On the evening of March 30, 2012, Nichols was the supervising adult in the
Miller Jones home. Nichols, S.W., who was born in 1997, and another girl, C.,
sat on one couch, and M.S. sat on another couch. C. became tired and went
upstairs to bed. S.W. covered herself with a blanket, and Nichols also covered
himself with the blanket. S.W. asked Nichols what he was doing, and Nichols
said that he was cold. M.S. fell asleep.
[5] Nichols began poking S.W.’s thighs with his finger. S.W. asked Nichols what
he was doing, and Nichols said: “[W]ell if you don’t want it, I won’t do it.” Id.
at 49. S.W. “didn’t want to make him as bad, so . . . was like, oh, it’s fine, it’s
fine.” Id. Nichols told S.W. that his ex-girlfriends had something in common
and that they were all younger than him. Nichols and S.W. started kissing,
Nichols tried to get under her pants, S.W. said that M.S. was right there, and
Nichols said that it was fine and M.S. would not wake up. S.W. went over to
M.S., woke her, and told her to go upstairs. S.W. seemed “kinda scared” to
M.S., but M.S. went to bed because she was tired. Id. at 29.
[6] Nichols then had S.W. give him oral sex, and they engaged in sexual
intercourse, but Nichols did not climax. S.W. moved to the Laviolette House
the next Wednesday.
[7] On the evening of April 6, 2012, after a different supervising adult was relieved
by Nichols, M.S. went to “hang out” with Nichols. Id. at 15. Nichols and
M.S. “hung out for a while” downstairs on the couch. Id. at 14. Nichols then
began massaging M.S.’s feet and teased her about her telling on him because
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she “had told on an experience [she had] with another girl in the facility and
had gotten in trouble over it” and that she “was going to tell in the morning that
[her] feet had felt so good, because he was massaging them . . . .” Id. at 15.
During this time, the other girls were upstairs asleep. Nichols kept taking one
of M.S.’s feet and putting it onto his groin area, and M.S. kept moving her foot
away. Nichols kept doing so, looked at M.S., and said, “so what do you want
to do next?” Id. at 16. M.S. felt scared, did not respond, and “couldn’t really
tell him no, because he was the person in charge of [her] at that time.” Id.
[8] Nichols then “set [M.S.] across his lap, sort of like you would sit across a saddle
or something,” “started pulling [her] breast out of [her] nightshirt,” and began
biting her nipples. Id. It was painful, M.S. pulled away, but Nichols “kept on.”
Id. at 17. He then started pulling off M.S.’s shirt, fondled her all over, and
inserted his finger into her vagina. M.S. told Nichols that she “couldn’t” and
that she was on her period. Id. Nichols said that he did not have any
protection, continued to fondle her, and said: “[O]h well, you’ll just tell in the
morning and make it a big deal . . . .” Id. Nichols then made M.S. put her
hands on his penis and “fondle him and pleasure him.” Id. Nichols “took one
leg off of [her] pants,” engaged in sexual intercourse with M.S., and pulled out
before he ejaculated. Id. at 18. Nichols then made M.S. give him oral sex. He
ejaculated on the couch or “on himself really.” Id. He then went to the staff
restroom, cleaned himself, and he and M.S. used disinfectant wipes on the
couch and couch pillows.
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[9] At some point later, M.S. told S.W. that Nichols had put her foot on his private
parts repeatedly, and S.W. said: “[N]o, he didn’t do that . . . he loves me, we
did it, we had sex.” Id. at 22.
[10] On May 30, 2012, M.S. planned to take her second polygraph at ResCare with
Neil Remaklus at the end of her stay “to make sure that [she] was still
maintaining a truthful status.” Id. at 20. In the questionnaire prior to the
polygraph, M.S. disclosed what had happened with Nichols. She stated to
Remaklus that she had sexual intercourse with Nichols because she did not
want to fail the polygraph and be sent back to ResCare. Remaklus then pulled
Allison Dobbs, a counselor at ResCare, into the room. M.S. told them that
S.W. had said that she had sex with Nichols. M.S. continued her treatment
through a different facility.
[11] On July 5, 2012, the State charged Nichols with Count I, sexual misconduct
with a minor as a class B felony; Count II, sexual misconduct with a minor as a
class B felony; Count III, sexual misconduct with a minor as a class C felony;
Count IV, sexual misconduct with a minor as a class B felony; and Count V,
sexual misconduct with a minor as a class C felony.1 On May 20, 2015,
Nichols waived trial by jury.
1
Counts I, II, and III related to Nichols’s actions with M.S., and Counts IV and V related to his actions with
S.W.
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[12] On August 14, 2015, the court held a bench trial, M.S. and S.W. testified to the
foregoing, and Remaklus then testified. During direct examination, Remaklus
stated that he told M.S. the importance of passing the polygraph examination
and that if she failed, then the counselor would not know the truth, and he
stressed to her how important it was to tell the truth. The prosecutor asked
what M.S. had disclosed to him, and he responded that she “stated that initially
she wasn’t going to come in and tell this information, but she felt that she had
to. At that point she also stated that that she had had . . . .” Id. at 71. Defense
counsel then immediately stated:
Judge, . . . I thought . . . we we’re going to, I mean, we had a
kind of an informal stipulation, but I didn’t know he was going to
verbatim, just recite what he remembered as, I mean . . . I
thought that he was going to testify to what she said basically
happened, not to this level of detail. I mean, the way he’s
starting out, it’s like there’s, he’s just starting a long story and I,
you know, it’s supposed to be narrow in scope and just basically
what she’d said, you know.
Id. The following exchange then occurred:
[Prosecutor]: Well, he hasn’t said anything yet, that’s what we’re
getting to. I’m just asking basically, you know, in a fairly short
thing to say what she told him.
THE COURT: He just got to, what did she tell you?
[Defense Counsel]: Alright. Thank you, Your Honor.
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Id. Remaklus then testified that M.S. stated that she had sexual contact with
Nichols and that she thought S.W. also had sexual contact with Nichols.
[13] Dobbs, the counselor at ResCare, then testified, without objection, that she was
called in because she was told that M.S. had disclosed that she had sex with
Nichols and that she was needed to process the information with M.S. at that
time. She also testified that M.S. informed her that S.W. had also been
involved in a relationship, with Nichols, that she met with S.W. separately, and
that S.W. was very emotional and informed her that it was true.
[14] During direct examination, Greencastle City Police Detective Captain
Randolph Seipel testified that he investigated the case, found Nichols at a
residence, told him that he had been looking for him regarding a case he was
investigating at ResCare, and asked him if he could come to the police
department the following day to speak with him. Nichols’s counsel objected on
the grounds of privilege against self-incrimination and relevancy. Specifically,
he argued that “the Fifth Amendment privilege against self-incrimination . . .
would dictate to us that any implication or any (INDISCERNIBLE) of any
wrongfulness arising out of failing to fully cooperate or anything like that,
should not be considered as evidence.” Id. at 85. After Detective Seipel
testified that he did not tell Nichols that he was going to take him into custody,
and after some discussion the court stated: “Well, I think if he was in custody
that would be one thing, but I think just asking him to come to the station to
give a statement and talk to him.” Id. Nichols’s counsel then stated: “I think
that’s fine, but I just don’t think he can sit here and testify about my client’s not
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following through. I believe that shouldn’t be considered as relevant, because,
maybe my client decided to invoke . . . .” Id. at 85-86. The court then said:
“Well, he didn’t testify to that, you just did, but I’ll give it the weight that it
deserves.” Id. at 86. Detective Seipel then testified that Nichols agreed to meet
him, but did not inquire at all as to why he wanted to speak with him, and that
Nichols did not meet him the next day.
[15] Nichols testified that he did not remember the exact dates, but that he worked
two consecutive Friday or Saturday nights, and that on March 30, 2012, after
the other adult supervisor left, M.S., S.W. and two other girls went downstairs
and just wanted to talk, and he had no problem with that. He testified that two
girls went to bed, M.S. and S.W. remained downstairs, M.S. eventually said
that she was tired and was going to bed, S.W. said “let’s hang out,” M.S. again
said she was going to bed, and he said “it’s time, we need to go to bed, you
need to go upstairs,” and “that was the end of it.” Id. at 96. He testified that on
the next Friday when he arrived, everyone was in bed and stayed in bed except
for bathroom breaks, and he did not do anything that night. He further testified
that he did not have sex with S.W, and denied having a one-on-one
conversation with M.S. alone or having any kind of inappropriate sexual
contact with her. He stated that it was not true that he never asked Detective
Seipel why he came to his door. He also testified that he told Detective Seipel
that he would come to the office tomorrow but “later decided there was no
needing for me to go there about ResCare.” Id. at 105. The prosecutor asked
Nichols if he asked Detective Seipel about ResCare, and Nichols’s counsel
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objected on the basis of relevance and stated that “you don’t make an inference
of guilt based on non-cooperation and yet he’s beating the drum over here
about this.” Id. at 106. The court sustained the objection.
[16] After closing arguments, the court stated: “I can’t say that I’ve seen two (2) girls
that are more credible in their testimony in almost forty (40) years. They have
absolutely no reason to lie. Their stories . . . almost mirror one another and
they haven’t seen each other since 2012.” Id. at 121. The court found Nichols
guilty as charged and sentenced him to fifteen years for each of the class B
felonies and four years for each class C felony. The court ordered that the
counts related to M.S. be served concurrent with each other and consecutive to
the counts related to S.W. for an aggregate sentence of thirty years, with
twenty-five years executed in the Department of Correction and five years
suspended to probation.
Discussion
I.
[17] The first issue is whether the trial court abused its discretion in admitting
evidence that Nichols did not attend an interview with Detective Seipel or ask
about the investigation. Generally, we review the trial court’s ruling on the
admission or exclusion of evidence for an abuse of discretion. Roche v. State,
690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied. We reverse only where the
decision is clearly against the logic and effect of the facts and circumstances.
Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied. We may affirm a
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trial court’s decision regarding the admission of evidence if it is sustainable on
any basis in the record. Barker v. State, 695 N.E.2d 925, 930 (Ind. 1998), reh’g
denied. Even if the trial court’s decision was an abuse of discretion, we will not
reverse if the admission constituted harmless error. Fox v. State, 717 N.E.2d
957, 966 (Ind. Ct. App. 1999), reh’g denied, trans. denied. We have stated
previously that “[a]ny error caused by the admission of evidence is harmless
error . . . if the erroneously admitted evidence was cumulative of other evidence
appropriately admitted.” Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App.
2004).
[18] Nichols argues that there can be no other reason to offer evidence that he did
not meet with Detective Seipel or ask what the investigation was about other
than to create an inference of consciousness of guilt on his part. He asserts that
the trial court violated his privilege against self-incrimination by admitting this
evidence. He also argues that the State used this inadmissible evidence to
impeach his innocence even before he ever had a legitimate opportunity to
defend himself.
[19] The State argues that evidence of Nichols’s failure to appear was admissible
under Salinas v. Texas, 133 S. Ct. 2174 (2013), and Owens v. State, 937 N.E.2d
880 (Ind. Ct. App. 2010), reh’g denied, trans. denied. The State’s position is that,
even if the trial court erred, any error is harmless given the court’s statement
that it would give this evidence “the weight that it deserves” and the finding of
guilt that “referenced nothing but the highly credible testimony of M.S. and
S.W., and [Nichols’s] suspect testimony.” Appellee’s Brief at 23-24.
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[20] The Fifth Amendment to the United States Constitution provides that no
person “shall be compelled in any criminal case to be a witness against
himself.” “[A] witness who desires the protection of the privilege must claim it
at the time he relies on it.” Salinas, 133 S. Ct. at 2179 (internal quotation marks
and ellipsis omitted).2 The record does not reveal that Nichols invoked the
privilege against self-incrimination. See id. at 2178-2180 (a plurality opinion
held that a witness does not invoke the privilege against self-incrimination by
simply standing mute and that the prosecution’s use of the defendant’s
noncustodial silence did not violate the Fifth Amendment because the
defendant failed to state that he was not answering the officer’s question on
Fifth Amendment grounds); Mira v. State, 3 N.E.3d 985, 986-989 (Ind. Ct. App.
2013) (noting that the defendant did not call a detective back after the detective
wrote a letter indicating that the defendant was a suspect in a larceny and
needed to contact the detective and that the defendant told the detective that he
would call back, citing Owens, 937 N.E.2d 880, and holding that the failure on
the defendant’s part to follow up with the detective did not support a finding
that he invoked his right to remain silent). We cannot say that the court abused
its discretion in admitting this evidence.
2
Justice Alito announced the judgment of the Court and delivered the opinion in which Chief Justice
Roberts and Justice Kennedy joined. 133 S. Ct. at 2177. Justice Thomas, with whom Justice Scalia joined,
concurred in the judgment and wrote in part that “[t]he plurality avoids reaching that question and instead
concludes that Salinas’ Fifth Amendment claim fails because he did not expressly invoke the privilege.” Id.
at 2184 (Thomas, J., concurring). Justice Thomas stated: “I think there is a simpler way to resolve this case.
In my view, Salinas’ claim would fail even if he had invoked the privilege because the prosecutor’s comments
regarding his precustodial silence did not compel him to give self-incriminating testimony.” Id.
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II.
[21] The next issue is whether the admission of the testimony of Remaklus and
Dobbs resulted in fundamental error. Nichols argues that their testimony was
hearsay and was introduced against him in a manner that impermissibly
vouched for those statements. He acknowledges that his counsel did not object
to the statements, but argues that the admission was fundamental error, and
that “[b]ecause the indirect vouching and hearsay was used to lend credibility to
victims’ claims that were not corroborated by other evidence, it is impossible to
parse out how much that influenced the fact-finder’s impression that they were
credible witnesses.” Appellant’s Brief at 12-13.
[22] Specifically, he points to the following exchange that occurred during the direct
examination of Remaklus:
A: During the course of interviewing her, we started to talk. She
had previously filled out the questionnaire, but then as I was
speaking with her, I was telling her the importance of to pass the
polygraph examination; because at that point, even though they
may have to admit some things, at least the individuals that
they’re working with, the counselor, will know at that point,
okay, this is what we’re dealing with, because you passed the
polygraph. Whereas if they fail, then the counselor, whoever I’m
doing the work for, does not know the truth, the whole truth. So
can’t really believe anything they say at that point. So I was
stressing to her how important it is to tell the truth, the whole
truth and nothing but the truth throughout the exam.
Q: Did you tell her what happens if she didn’t tell the truth?
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A: Exactly. I said that she had just transitioned to home and to
live with her grandmother, I explained that if she were to
continue, or if she were to fail this polygraph exam, that’s in
jeopardy, because I don’t, I told her I don’t make that decision,
but at that point, they don’t know for sure what’s she’s done,
they don’t know if she’s done in while she’s been home that week
or while she’s been there at ResCare. So I said it’s very
important for her to pass the polygraph exam to know exactly
what’s happened.
Q: So she knew lying meant that she may not get to go home?
A: Exactly.
Q: So what did she disclose to you then?
A: At that point she stated that initially she wasn’t going to
come in and tell this information, but she felt that she had to. At
that point she also stated that that she had had . . . .
Transcript at 70-71. He also points to Dobbs’s testimony that she was called in
because she was told that M.S. had disclosed some information that they
needed her to process with M.S., that the information was that Nichols had sex
with her, that Dobbs met with S.W., and that “S.W. was very emotional and
informed” her that “it was true.” Id. at 76.
[23] The State argues that the admission of the testimony of Remaklus and Dobbs as
to statements made to them by M.S. and S.W. did not constitute impermissible
hearsay and that the sole reason for the admission of their testimony was to
show how it came to be that M.S. and S.W. disclosed Nichols’s sexual
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misconduct almost two months after the fact. The State points out that the
parties had entered into an informal stipulation that Remaklus and Dobbs could
testify briefly as to the statements M.S. and S.W. made to them and that, by
entering into this stipulation, Nichols invited any error with regard to their
testimony and cannot now claim fundamental error on appeal. The State also
notes that M.S. and S.W. testified to making the statements to Remaklus and
Dobbs, and contends that the admission of the testimony of Remaklus and
Dobbs is merely cumulative. Finally, the State argues that Remaklus’s
testimony did not constitute improper vouching because reminding an
interviewee to tell the truth does not imply that the interviewer thinks that the
response that follows is truthful, and that it had nothing to do with vouching for
M.S.’s credibility.
[24] As conceded by Nichols, he did not object to the testimony of Remaklus and
Dobbs. To circumvent waiver, Nichols contends that the admission of their
testimony resulted in fundamental error. Fundamental error is an extremely
narrow exception that allows a defendant to avoid waiver of an issue. Cooper v.
State, 854 N.E.2d 831, 835 (Ind. 2006). It is error that makes “a fair trial
impossible or constitute[s] clearly blatant violations of basic and elementary
principles of due process . . . present[ing] an undeniable and substantial
potential for harm.” Id. “This exception is available only in ‘egregious
circumstances.’” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quoting
Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)), reh’g denied. “Fundamental
error is meant to permit appellate courts a means to correct the most egregious
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and blatant trial errors that otherwise would have been procedurally barred, not
to provide a second bite at the apple for defense counsel who ignorantly,
carelessly, or strategically fail to preserve an error.” Ryan v. State, 9 N.E.3d 663,
668 (Ind. 2014), reh’g denied.
[25] During Remaklus’s testimony, Nichols’s counsel stated that “we had a kind of
an informal stipulation” and stated that the testimony was “supposed to be
narrow in scope and just basically what she’d said . . . .” Transcript at 71. To
the extent Nichols bases his argument on Remaklus’s testimony regarding what
M.S. told him, the record reveals that Nichols invited any error by
acknowledging that the parties stipulated that he could testify as to what M.S.
“basically” said. Id. The invited error doctrine forbids a party to take
advantage of an error that he “commits, invites, or which is the natural
consequence of [his] own neglect or misconduct.” Brewington v. State, 7 N.E.3d
946, 975 (Ind. 2014) (quoting Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005)),
reh’g denied, cert. denied, 135 S. Ct. 970, reh’g denied. We conclude that Nichols
invited any error with respect to this portion of Remaklus’s testimony.
[26] To the extent Nichols asserts that Remaklus and Dobbs improperly vouched for
M.S. and S.W., we note that Ind. Evidence Rule 704(b) 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.” The Indiana Supreme Court
discussed indirect vouching in Hoglund v. State and concluded that testimony
concerning whether an alleged child victim is not prone to exaggerate or
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fantasize about sexual matters is an indirect but nonetheless functional
equivalent of saying the child is telling the truth. 962 N.E.2d 1230, 1236 (Ind.
2012), reh’g denied.
[27] Even assuming that this testimony constituted improper vouching, we cannot
say that its admission resulted in fundamental error. M.S. and S.W. testified
and were thoroughly cross-examined. We conclude that Remaklus’s testimony
regarding the importance of telling the truth was cumulative of M.S.’s
testimony that she had to take a polygraph examination in accordance with her
treatment program “to make sure [she] was getting everything out on the table,”
that if she lied they could not help her, and that if she did not tell the truth then
she would have to take another one. Transcript at 10. We cannot say that the
testimony of Remaklus and Dobbs was so prejudicial as to make a fair trial
impossible or that Nichols has demonstrated fundamental error. See Sampson v.
State, 38 N.E.3d 985, 992-993 (Ind. 2015) (rejecting the defendant’s
fundamental error argument where the credibility of the alleged victim, S.B.,
was at stake, she was thoroughly questioned on cross-examination and her
testimony did not waver from that given during direct examination, and the
forensic interviewer’s response of “[n]o” to the question “[d]uring your
interview with [S.B.], did you observe any signs that she had been coached”
was not so prejudicial to the defendant as to make a fair trial impossible);
Hoglund, 962 N.E.2d at 1238-1240 (holding that indirect vouching testimony,
which came from three witnesses, did not rise to the level of fundamental error).
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Conclusion
[28] For the foregoing reasons, we affirm Nichols’s convictions.
[29] Affirmed.
Baker, J., and May, J., concur.
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