MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 21 2017, 8:53 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jill A. Gonzalez Curtis T. Hill, Jr.
Public Defender’s Office Attorney General of Indiana
Muncie, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Aaron J. King, March 21, 2017
Appellant-Defendant, Court of Appeals Case No.
18A02-1610-CR-2477
v. Appeal from the Delaware Circuit
Court
State of Indiana, The Honorable John M. Feick,
Appellee-Plaintiff Judge
Trial Court Cause No.
18C04-1305-FA-3
Crone, Judge.
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Case Summary
[1] A jury found Aaron J. King guilty of rape, criminal deviate conduct, criminal
confinement, and strangulation. On appeal, King argues that fundamental
error occurred when the prosecutor talked with the victim during a break in her
testimony and that his strangulation conviction is not supported by sufficient
evidence. We affirm.
Facts and Procedural History1
[2] The facts most favorable to the convictions are that King and K.N. dated in
high school and briefly during college, but they had only occasional contact for
several years before the evening of April 21, 2013, when King called K.N.
because he and his fiancée were having relationship difficulties. K.N. picked up
King and drove them back to her apartment. They talked for several hours and
fell asleep on her bed. In the morning, K.N. dropped off King at another
apartment complex.
[3] Two days later, King arrived unexpectedly at K.N.’s apartment and knocked on
the door. K.N., who had been sleeping, answered the door and invited him in.
They went into her bedroom and rested until K.N. had to get ready for a
graduate school class. King said that he was going out to get a breakfast
1
King’s brief contains numerous grammatical and clerical errors. See, e.g., Appellant’s Br. at 6 (“The two of
them had went [sic] back to [the victim’s] room ….”); id. (“The Defendant then had sex with the Defendant
[sic] ….”); id. at 13 (“In addressing a claim of inefficiency [sic] of the evidence ….”). We advise counsel to
proofread more carefully in the future.
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sandwich, but instead he bought duct tape at a hardware store and returned to
K.N.’s apartment. As K.N. opened the door to leave for class, King shut the
door, carried her into her bedroom, and pushed her onto the bed. K.N. asked
King what he was doing. He told her to shut up, pulled down her pants, and
raped her. At one point, he forced her to perform fellatio. He also put his
hands on her neck several times and squeezed so hard that “[e]verything was
going black” and she “was gasping for air.” Tr. Vol. 4 at 86. During the
assault, K.N. yelled and hit the walls, so King put duct tape over her mouth and
bound her wrists together. He ultimately removed the duct tape, apologized to
K.N., and left the apartment. K.N. called 911. She was taken to the hospital
for examination and was kept overnight due to swelling in her throat.
[4] The State charged King with class A felony rape, class B felony criminal deviate
conduct, class D felony criminal confinement, and class D felony strangulation.
A jury found him guilty as charged, and the trial court sentenced him to forty
years. King now appeals. Additional facts will be provided as necessary.
Discussion and Decision
Section 1 – King has failed to establish that fundamental error
occurred when the prosecutor talked with K.N. during a break
in her testimony.
[5] The prosecutor called K.N. as a witness during the State’s case in chief. She
was then cross-examined by King’s counsel. During cross examination, the
prosecutor asked if K.N. could take a break. The trial court called a recess.
Before the jury was brought in, King’s counsel expressed displeasure with the
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prosecutor “in the middle of [her] cross [taking K.N.] out in the hallway for ten
minutes, fifteen minutes[.]” Tr. Vol. 4 at 152. The court asked King’s counsel
if she wanted to make a record “before the jury comes in” regarding whether
the prosecutor told K.N. what to say. Id. King’s counsel replied that she did
not. The jury was brought in, and K.N. took the stand. The following
exchange occurred between King’s counsel and K.N.:
Q [K.N.], we just took a break because you asked for a break,
correct?
A Yes.
Q You were out in the hallway for about ten, fifteen minutes?
A Yes.
Q Were you talking with [the prosecutor] and his staff?
A Yes.
Q Were you asking him about what to do about my questions?
A I used the restroom, and we did converse.
Q Converse about what to say about my questions? Don’t look
him—
A Not—
Q -- Answer the question.
A Not specifically. Just because you are coming off very
aggressively. So, I just was asking him if that was normal, and
how to respond.
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Q Okay. So, you were asking him how to respond to my
questions?
A If I should be as aggressive back to you as you are to me.
Q You can be as aggressive to me as you want to be. I don't care.
[PROSECUTOR]: Objection. If she’s going to make smart
comments.
THE COURT: None of this. None of this. None of this.
[KING’S COUNSEL]: I withdraw. I’m sorry, Judge. I
withdraw it.
Id. at 153-54.
[6] On appeal, King argues that the trial court should have declared a mistrial
instead of allowing K.N. “to continue to testify after she was coached by the
prosecution during a recess in the middle of her cross examination.”
Appellant’s Br. at 10. King claims that the “[u]nethical coaching” was
prosecutorial misconduct. Id. at 12. King failed to request either an
admonishment or a mistrial, which results in waiver. Emerson v. State, 952
N.E.2d 832, 836 (Ind. Ct. App. 2011), trans. denied. “Where a claim of
prosecutorial misconduct has not been properly preserved, our standard of
review is different from that of a properly preserved claim.” Id. “More
specifically, the defendant must establish not only the grounds for the
misconduct but also the additional grounds for fundamental error.
Fundamental error is an extremely narrow exception that allows a defendant to
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avoid waiver of an issue.” Id. (citation omitted). “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. (quoting Benson v. State, 762 N.E.2d 748,
756 (Ind. 2002)).
[7] King has failed to establish that the prosecutor’s actions made a fair trial
impossible. He cites no authority for the proposition that a party may not
request a break to calm a flustered witness, and the record indicates that the
prosecutor and K.N. discussed only the tone, and not the content, of her
testimony going forward. Furthermore, K.N. was cross-examined about the
conversation in front of the jury. In sum, King has failed to establish
fundamental error.
Section 2 – King’s strangulation conviction is supported by
sufficient evidence.
[8] King also contends that his strangulation conviction is not supported by
sufficient evidence. In reviewing an insufficient evidence claim, we neither
reweigh evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495, 500
(Ind. 2015). “Rather, if the testimony believed by the trier of fact is enough to
support the verdict, then the reviewing court will not disturb it.” Id.
[9] The State alleged that King committed strangulation when he, “in a rude,
insolent or angry manner, did knowingly or intentionally apply pressure to the
throat or neck of [K.N.] or obstruct the nose or mouth of [K.N.] in a manner
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that impeded normal breathing or blood circulation of [K.N.]” Appellant’s
App. Vol. 2 at 27. K.N. testified that King choked her with his hands. King
points to testimony by two nurses that purportedly establishes that marks on
K.N.’s neck were “made by an object and not hands” and argues that “[t]here is
absence of circumstantial evidence that the marks on [K.N.’s] neck were made
by Aaron King’s hands.” Appellant’s Br. at 14-15. At trial, King himself
testified that he put his hands around K.N.’s neck and choked her during what
he claimed was rough consensual sex. The jurors saw photographs of the
marks on K.N.’s neck and were free to disbelieve the nurses’ testimony and
believe K.N.’s testimony that King choked her with his hands during
nonconsensual sex.2
[10] King also claims that there is no evidence that he knowingly or intentionally
applied pressure to K.N.’s throat or impeded her normal breathing. K.N.
testified that “[e]verything was going black” and that she “was gasping for air”
and “thought that [she] was going to die[.]” Tr. Vol. 4 at 86. Also, she was
kept in the hospital overnight due to swelling in her throat. King’s argument is
an invitation to reweigh evidence and assess witness credibility, which we may
not do. The testimony believed by the jury is sufficient to support King’s
strangulation conviction, and therefore we affirm.
2
King’s incredible dubiosity claim is meritless.
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[11] Affirmed.
Baker, J., and Barnes, J., concur
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