MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 20 2018, 10:15 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
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estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr. Curtis T. Hill, Jr.
Deputy Public Defender Attorney General
Fort Wayne, Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jerry L. Williamson, April 20, 2018
Appellant-Defendant, Court of Appeals Case No.
02A03-1711-CR-2782
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable John F. Surbeck,
Appellee-Plaintiff Jr., Judge
Trial Court Cause No.
02D04-1608-FA-4
Crone, Judge.
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Case Summary
[1] A jury convicted Jerry L. Williamson of five counts of class A felony child
molesting and three counts of class C felony child molesting. He now appeals,
raising as fundamental error the trial court’s pretrial exclusion of evidence
pursuant to the Rape Shield Rule. Finding that he waived any argument in this
regard by failing to make an offer of proof at trial, we affirm.
Facts and Procedural History
[2] Williamson and Charlotte McMahon (“Mother”) are the biological parents of
D.W. (“Son”), who was born in 2002 and lived with Mother. At age three, Son
was diagnosed with autism. At age four, he began having regular visits with
Williamson every other weekend and for one week each summer. At age
eleven, he functioned at the age of a four- or five-year-old.
[3] In October 2014, several days after Son had been with Williamson for a
weekend, he was talking with his half brother, and Mother overheard him use
the words “butts” and “wieners.” Tr. Vol. 2 at 49. When Mother asked the
boys what they were discussing, Son said, “my daddy tickled my butt with his
wiener,” “my daddy tickled my mouth with his wiener,” and “my daddy tickled
my wiener with his mouth.” Id. Mother immediately phoned Williamson,
who denied the accusations and said, “[P]lease do not report this, please do not
call the police or Child Protective Services [“CPS”] because I will go away for
the rest of my life and never see my child again.” Id. at 50. Mother reported
the matter to police and CPS. A forensic specialist interviewed Son at a local
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children’s center, where he made the same accusations that he had verbalized to
Mother. He also reported that something came out of his daddy’s wiener and
said that he felt like he was going to puke when his daddy’s wiener was in his
mouth. He later was interviewed by a sexual assault nurse, who reported that
he told her, “dad hurt it,” “hurt it with daddy’s weiner [sic],” while pointing to
his anus; “it hurts, red stuff on toilet paper.” State’s Ex. 6. He told the nurse
that Williamson “put my weiner [sic] in his butt” and used the terms “tickle,
tickle, tickle.” Id. He tried to put his finger in the nurse’s mouth and said, “oh,
oh, oh, daddy says, tickle, tickle, tickle,” “Put your mouth in his weiner [sic].”
Id. He also said, “put weiner [sic] in mouth,” “stuff went in mouth,” “made
mouth sick,” and then “he said ‘thank you,” “love you.’” Id. The nurse asked
Son when this had happened, and he responded, “At nighttime at dad’s, lots of
times.” Id.
[4] A few months after Son made his disclosures concerning Williamson, two other
boys, T.D. and A.D., came forward and alleged that Williamson had sexually
molested them as well. These adolescent brothers were relatives of
Williamson’s ex-wife and had spent a significant amount of time at
Williamson’s home between 2011 and 2014. The two boys generally stayed
with Williamson on alternate weekends, with A.D.’s weekends occasionally
coinciding with Son’s weekends. T.D., the older of the brothers, disclosed that
when he was ten years old, Williamson began rubbing his penis over his pants
while he was trying to play video games and then progressed to rubbing his bare
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penis. He also reported that on more than one occasion, Williamson had
forced him to suck his penis and had put his mouth on T.D.’s penis.
[5] A.D. was eight years old when he began visiting Williamson. Over the next
couple years, Williamson started molesting him. A.D. recounted a time when
he was awakened by Williamson, who was putting his mouth on A.D.’s penis.
Another time, Williamson tried to insert his penis into A.D.’s mouth and then
masturbated until “white stuff came out.” Tr. Vol. 2 at 238-39. A.D. disclosed
that he had been forced to perform and submit to oral sex with Williamson
numerous times. He also reported that shortly before Son made his disclosures
about Williamson, he saw Williamson insert his penis into Son’s mouth and
saw Son spit out the “white stuff.” Id. at 240. A.D. and T.D. ceased visiting
Williamson after they heard about Son’s disclosures. A few months later, T.D.
reported that Williamson had molested him, and the boys’ stepmother
questioned A.D., who said that he too had been molested by Williamson.
[6] In August 2016, the State charged Williamson with eleven counts of child
molesting, five as class A felonies, two as level 1 felonies, three as class C
felonies, and one as a level 4 felony. The State amended the information to
dismiss the two level 1 felony counts as well as the level 4 felony count. Nine
months later, Williamson filed a belated motion of intent to offer evidence
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under Indiana Evidence Rule 412.1 The trial court conducted a hearing, and
the State subpoenaed witnesses for both parties. At the hearing, defense
counsel asserted that A.D. and T.D. had previously made sexual assault
allegations against a different perpetrator and that Son had merely overheard
the brothers recounting those assaults and co-opted the details as his own.
With respect to the counts involving A.D. and T.D., Williamson indicated that
his defense strategy was to show that though the boys might have been
molested, it was by a person other than him. The defense opted not to call any
of the subpoenaed witnesses.
[7] In response to Williamson’s arguments, the State indicated that A.D. had not
made any allegations against a person other than Williamson and that T.D. had
testified at his deposition that he had never discussed the other perpetrator with
A.D. or Son and that he and Son were rarely ever at Williamson’s home on the
same weekends. Pretrial Tr. at 8. The State also indicated that it was prepared
to offer testimony from an autism doctor stating that it is “very unlikely that
[Son] could overhear a conversation and internalize it and be able to repeat it
1
In a criminal proceeding involving alleged sexual misconduct, Indiana Evidence Rule 412, the Rape Shield
Rule, prohibits the admission of evidence offered to prove that a victim “engaged in other sexual behavior.”
Ind. Evidence Rule 412(a)(1). The purpose of the rule is “to prevent the victim of a sexual assault from being
put on trial … and, importantly, to remove obstacles to reporting sex crimes.” Johnson v. State, 6 N.E.3d 491,
498 (Ind. Ct. App. 2014) (citations and internal quotation marks omitted). Rule 412(b)(1)(A) allows the court
to admit “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.” Rule
412(c)(1) requires the party intending to offer the evidence to file a motion at least ten days before trial
specifically describing the evidence it seeks to introduce and the purpose for which it will be offered. Indiana
Code Section 35-37-4-4, known as the Rape Shield Statute, is substantially similar to Indiana Evidence Rule
412. Williamson offered the evidence only under Rule 412.
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and show actions the way he did. That is outside the scope of what he’s
capable of with his autism.” Id.
[8] The trial court took the matter under advisement and denied Williamson’s Rule
412 motion. During his October 2017 jury trial, Williamson did not renew his
motion or make an offer of proof. The jury found Williamson guilty as
charged, and the trial court sentenced him to an aggregate 140-year term.
Williamson now appeals. Additional facts will be provided as necessary.
Discussion and Decision
[9] Williamson maintains that the trial court erred in denying his pretrial motion to
introduce evidence under the Rape Shield Rule. The State claims, and
Williamson admits, that he failed to renew his motion and make an offer of
proof during his jury trial. To preserve an error for appellate review, a party
must do more than challenge the pretrial ruling; rather, “the evidence must be
offered at trial to give the trial court an opportunity to rule on its admissibility at
that time.” Miller v. State, 716 N.E.2d 367, 370 (Ind. 1999) (quoting Tyra v.
State, 506 N.E.2d 1100, 1102-03 (Ind. 1987)); see also Ind. Evidence Rule
103(a)(2) (requiring that party seeking to preserve claim of error concerning
excluded evidence must inform the court of its substance by an offer of proof).
This requirement specifically applies to exclusions under the Rape Shield Rule,
“even though Rule 412 … include[s] specific provisions for ruling on the
admissibility of the proposed evidence after pretrial notice and hearing.” Miller,
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716 N.E.2d at 370. Having failed to renew his pretrial motion or make an offer
of proof at trial, Williamson failed to preserve the alleged error for review.
[10] Nevertheless, Williamson claims that he is entitled to relief under the doctrine
of fundamental error. “[A] claim waived by a defendant’s failure to raise a
contemporaneous objection can be reviewed on appeal if the reviewing court
determines that a fundamental error occurred.” Delarosa v. State, 938 N.E.2d
690, 694 (Ind. 2010) (citation omitted). Fundamental error is an extremely
narrow exception to the waiver rule, whereby the defendant must demonstrate
that the alleged error is so prejudicial to his rights as to “make a fair trial
impossible.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014). The fundamental
error doctrine “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.” Covey v. State, 929
N.E.2d 813, 819 (Ind. Ct. App. 2010).
‘A finding of fundamental error essentially means that the trial
judge erred ... by not acting when he or she should have....’
Fundamental error is meant to permit appellate courts a means to
correct the most egregious 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) (citation omitted) (emphasis
added).
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[11] Williamson is not challenging the trial court’s admission of some allegedly
prejudicial evidence to which he failed to object. Instead, he seeks to use
fundamental error to correct his own failure to offer evidence at his trial.
Fundamental error is not a safety valve to rescue unasserted or unrenewed
claims. Rather, it corrects egregious, prejudicial errors made at trial, by the trial
court. No such error occurred here. Williamson never broached the subject of
the Rule 412 evidence, and it was not the trial court’s responsibility to ask
whether he wished to further pursue the introduction of the evidence ruled
inadmissible at the pretrial hearing. In short, Williamson’s procedural default
cannot be rescued by the fundamental error doctrine. Consequently, we affirm.
[12] Affirmed.
Bailey, J., and Brown, J., concur.
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