MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jun 28 2019, 9:54 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Philip R. Skodinski Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Quintein S. Walker, June 28, 2019
Appellant-Defendant, Court of Appeals Case No.
71A03-1708-CR-1837
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable John M.
Appellee-Plaintiff Marnocha, Judge
Trial Court Cause No.
71D02-1610-F1-18
May, Judge.
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[1] Quintein S. Walker appeals his conviction of Level 1 felony child molestation. 1
Walker argues the evidence was insufficient to convict him and the trial court
abused its discretion and violated his constitutional right to cross-examine a
witness by not allowing testimony regarding his victim’s previous sexual
encounters. We affirm.
Facts and Procedural History
[2] In October 2016, Walker was living with his girlfriend Chandra Jackson and
her six children. On October 8, 2016, Jackson and Walker were watching
movies in their bedroom. Two of Jackson’s children, N.J. and Z.J., were
watching movies with them. Walker and Jackson had both mattresses in the
room pushed together and were lying with the children. N.J., who was eight,
was lying between Walker and Z.J. Jackson and Z.J. both fell asleep. While
they were asleep, Walker pushed N.J. “towards his balls” and “made [her] suck
them.” (Tr. Vol. II at 47-49.) Walker also touched N.J.’s butt and put his
fingers in her vagina. Walker told N.J. he would hit her if she told anyone.
[3] Jackson woke up when she felt Walker’s arm moving as if he were
masturbating. Jackson said Walker was still watching the same movie that
Jackson had fallen asleep to. When Jackson began to move, Walker moved
closer to her and adjusted his pants. Jackson turned on the lights and told the
1
Ind. Code § 35-42-4-3 (2015).
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children to leave. Jackson noticed N.J. was still under the covers. When
Jackson pulled back the covers, N.J. was “facing [Walker’s] private area.” (Tr.
Vol. II at 25.) As N.J. left the room, Jackson saw her adjusting her underwear.
After asking N.J. what happened, Jackson and N.J. confronted Walker, who
immediately got angry.
[4] Walker left the house, and Jackson took N.J. to the hospital. The doctor
observed evidence of irritation on the inside of N.J.’s vagina. The doctor
explained the irregularities were uncommon for someone N.J.’s age. The
injuries were consistent with finger penetration. A DNA test of material found
on N.J.’s underwear revealed male DNA, but there was not enough to
determine whose it was.
[5] At trial, Walker’s attorneys wanted to question N.J. about her sexual
knowledge and about prior sexual encounters she had had with her cousins and
brother. After a brief hearing away from the jury, the trial court decided to not
allow questioning regarding those matters. Walker was convicted of one count
of Level 1 felony child molesting and sentenced to thirty-years.
Discussion and Decision
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Sufficient Evidence
[6] Walker argues the evidence is insufficient to support his conviction. 2 When
considering the sufficiency of evidence, “a reviewing court does not reweigh the
evidence or judge the credibility of the witnesses.” McHenry v. State, 820 N.E.2d
124, 126 (Ind. 2005). We must affirm “if the probative evidence and reasonable
inferences drawn from the evidence could have allowed a reasonable trier of
fact to find the defendant guilty beyond a reasonable doubt.” Id. at 126
(internal citation omitted).
[7] To prove Walker committed Level 1 felony child molesting, the State had to
present sufficient evidence that (1) Walker, (2) who was over the age of twenty-
one, (3) with a child under fourteen years of age, (4) knowingly or intentionally
performed “other sexual conduct.” Ind. Code § 35-42-4-3(a)(1). “Other sexual
conduct” is defined as “an act involving a sex organ of one person and the
mouth or anus of another person; or the penetration of the sex organ or anus of
a person by an object.” Ind. Code § 35-31.5-2-221.5.
[8] N.J. testified Walker put his finger in her vagina. Walker argues N.J.’s account
is not believable because Jackson and Z.J. were both in the room. However, it
is not our duty to judge the credibility of a witness or reweigh the evidence. See
McHenry, 820 N.E.2d at 126 (stating standard of review). N.J.’s testimony,
2
The Appellant’s brief contained multiple spelling, grammar, and citation errors rendering it difficult to read
and determine the arguments being made.
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which is supported by part of Jackson’s testimony and by the doctor’s findings,
is sufficient to support Walker’s conviction. See, e.g., D’Paffo v. State, 749
N.E.2d 1235, 1239 (Ind. Ct. App. 2001) (minor victim’s testimony as to
defendant sexually assaulting her with fingers was sufficient to support child
molesting conviction), summarily aff’d in relevant part 778 N.E.2d 798, 803 n.2
(Ind. 2002).
Indiana Evidence Rule 412
[1] Walker also argues the trial court abused its discretion by not allowing Walker
to cross-examine N.J. about her prior sexual experience and her sexual
knowledge. Trial courts have broad discretion to determine the admissibility of
evidence at trial, Snow v. State, 77 N.E.3d 173, 177 (Ind. 2017), and we review
the trial court’s decision for an abuse of discretion. Marcum v. State, 772 N.E.2d
998, 1000 (Ind. Ct. App. 2002). An abuse of discretion occurs if the trial court’s
decision is “clearly against the logic and effect of the facts and circumstances
before the court, or the reasonable, probable, and actual deductions to be drawn
therefrom.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g
875 N.E.2d 218 (Ind. 2007).
[2] Indiana Evidence Rule 412, the Rape Shield Rule, prevents the admission of
evidence offered to prove a victim or witness engaged in sexual behavior on
other occasions. There are three exceptions to the Rule:
(A) evidence of specific instances of a victim’s or witness’s sexual
behavior, if offered to prove that someone other than the
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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.
Evid. Rule 412(b)(1).
[3] Walker wanted to use Exception (A) to question N.J. regarding prior sexual
contacts with her cousins and brother. The trial court held a hearing outside
the presence of the jury to determine the admissibility of the testimony. Under
Exception (A), evidence of sexual behavior becomes admissible if it could prove
“someone other than the defendant was the source of semen, injury, or other
physical evidence[.]” Id. However, Walker did not argue N.J.’s cousins or
brother were the source of the irritation inside her vagina, and in regard to the
experiences with her cousins and brother, N.J. testified she touched them, but
they did not touch her. (See Tr. Vol. II at 105.) As a result, the evidence could
not have demonstrated someone other than Walker was the source of the
physical evidence, and the trial court correctly determined the information was
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not admissible under Exception (A). 3 See Parrish v. State, 515 N.E.2d 516, 519-
520 (Ind. 1987) (trial court properly denied the defendant’s request to question
the child victim about prior sexual abuse because the Indiana Rape Shield
statute prevents inquiry into past sexual conduct).
[4] Additionally, under Exception (C), Walker argues his Sixth Amendment right
to confront a witness was violated. At trial, Walker did not assert a
constitutional argument. As a result, Walker waived this argument. See Small
v. State, 736 N.E.2d 742, 747 (Ind. 2000) (defendant failed to raise a
Confrontation Clause objection at trial and, thereby, waived the argument on
appeal).
[5] Waiver, notwithstanding Walker’s right to confront N.J., was not violated. The
Supreme Court has held “the 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 (1985) (emphasis in original). “[T]rial judges retain
wide latitude insofar as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the witness safety,
3
Nor could the evidence had been admissible under Exception (B) as an eight-year-old child cannot ever give
consent. See Evid. Rule 412(b)(1)(B) (making other sexual encounters between victim and defendant
admissible “if offered by the defendant to prove consent”).
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or interrogation that is repetitive or only marginally relevant.” Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986).
[6] Walker wanted to question N.J. regarding her previous sexual encounter with
her cousins because, Walker alleged, that was where she learned the term
“sucking balls.” (Tr. Vol. II at 94.) The trial court determined this information
was not relevant and would not have been effective in disproving any facts of
consequence in this case. (Id. at 113.) “Evidence is relevant when it has ‘any
tendency’ to prove or disprove a consequential fact.” Snow, 77 N.E.3d at 177.
We fail to see how testimony regarding where N.J. learned the term “sucking
balls” could be relevant to whether inappropriate sexual contact occurred
between Walker and N.J. on the night in question. At best, the evidence was
only marginally relevant. The trial court did not violate Walker’s constitutional
right to cross-examine a witness by excluding the evidence. See West v. State,
755 N.E.2d 173, 185 (Ind. 2001) (trial court properly denied the cross-
examination of a witness where the testimony would have been irrelevant).
Conclusion
[7] The evidence was sufficient to convict Walker of Level 1 felony child
molestation. Additionally, because Walker did not meet any of the exceptions
in Indiana Evidence Rule 412, the trial court properly refused to permit Walker
to question N.J. about prior sexual behavior. Finally, the trial court’s denial of
Walker’s request to question N.J. about prior sexual behavior did not violate
Walker’s Sixth Amendment rights. Accordingly, we affirm.
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[8] Affirmed.
Mathias, J., and Brown, J., concur.
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Quintein S. Walker v. State of Indiana (mem. dec.)
Combined Opinion