Kashif Allen Weathers v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 28 2017, 6:01 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Yvette M. LaPlante Curtis T. Hill, Jr.
Keating & LaPlante, LLP Attorney General of Indiana
Evansville, Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kashif Allen Weathers, February 28, 2017
Appellant-Defendant, Court of Appeals Case No.
82A01-1608-CR-1751
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Robert J. Pigman,
Appellee-Plaintiff. Judge
Trial Court Cause No.
82D03-1507-F3-4244
Pyle, Judge.
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Statement of the Case
[1] Kashif Allen Weathers (“Weathers”) appeals, following a jury trial, his
convictions for Level 3 felony rape1 and Level 6 felony criminal confinement.2
Weathers argues that the trial court committed fundamental error by admitting
the testimony of a detective. Concluding that Weathers has failed to show that
the trial court committed fundamental error, we affirm Weathers’ convictions.
[2] We affirm.
Issue
Whether the trial court committed fundamental error by admitting
the testimony of a detective.
Facts
[3] On July 17, 2015, B.A., a woman that Weathers had been dating for two
months, told Weathers that she was pregnant with another man’s baby. After
arguing for twenty-five to thirty minutes, Weathers “pushed [B.A.] down on the
bed” and told her to give him a hug. (Tr. 17). He tried to kiss B.A., but she
refused to kiss him back and “push[ed] him away telling him no.” (Tr. 18).
Weathers then “pull[ed] [B.A.’s] pants down and just forced himself inside of
[her]” for three to four minutes. (Tr. 17). B.A. repeatedly told Weathers to
stop. She shouted, “Get off me, no, stop.” (Tr. 19). After B.A. was eventually
1
IND. CODE § 35-42-4-1.
2
I.C. § 35-42-3-3.
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able to “kick[] him off of [her,]” she pulled up her pants and grabbed her purse
and keys to leave the house. (Tr. 17). As B.A. was trying to use her phone,
Weathers grabbed it from her hand and threw it down. He then “pinned [B.A.]
up against the wall” so that she “couldn’t move[,]” and he held her there for
five to ten minutes. (Tr. 20).
[4] Once B.A. was able to get away, she and two friends went to a nearby Taco
Bell, where she knew a police officer would be on duty, and she reported to the
officer what Weathers had done to her. B.A. then went to the hospital for an
examination. While at the hospital, B.A. spoke with Evansville Police
Detective Brian Turpin (“Detective Turpin”) and gave the detective a
handwritten statement.
[5] The following day, Detective Turpin conducted a videotaped interview with
Weathers. During the interview, Weathers stated that he and B.A. were
arguing so he laid on top of her, got her pants off, and started to have sex with
her to “get her mind off of it” and “change her mind.” (State’s Ex. 2).
Weathers acknowledged that B.A. had told him “no” and that he had inserted
his penis inside her “part of the way.” (State’s Ex. 2). He also admitted that he
had prevented B.A. from leaving the house by putting his arm around her and
that he had grabbed her phone from her and thrown it. Detective Turpin told
Weathers that he could write an apology letter to B.A., and Weathers wrote the
following letter:
[B.A.] i’m so sorry for Holding you from leaving the House I
should have never done that. Im sorry that i was trying to have
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sex with you while you was mad I should have tryed to do it
another way then that i would never try to rape you or anybody
else i’m so sorry that it went down this way tonite idk what i was
thinking or what you was thinking so can you just forgive me 
if you never want to talk to me agian i will understand but dont
be mean to me over a argurment that we had cuz im really not a
bad person and you know it im so “sorry”
Love ♡
Kashif. W.
(State’s Ex. 3) (misspellings, capitalization errors, and lack of punctuation in
original).
[6] The State charged Weathers with Level 3 felony rape and Level 6 felony
criminal confinement. The trial court held a jury trial on June 13, 2016.
During Detective Turpin’s direct examination, the State introduced—without
objection—the recording of Weathers’ police interview (State’s Ex. 2) and the
apology letter that Weathers wrote to B.A. (State’s Ex. 3).3 After the admission
of this evidence, Detective Turpin testified—without objection—that he had
been trained to use the letter writing method and that he used this method
because “people that are innocent don’t write apologies to people that they’ve
been accused of wronging so you know it just shows guilt in those cases so . . .”
(Tr. 83-84). During cross-examination, Weathers’ counsel asked Detective
Turpin if the purpose of having Weathers write the apology letter was to “build
3
In fact, Weathers’ counsel specifically stated that he had “[n]o objection” to the admission of State’s
Exhibits 2 and 3. (Tr. 79, 83).
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up [his] file,” and the detective responded that “it’s to show that an innocent
person wouldn’t apologize.” (Tr. 107).
[7] Weathers’ defense at trial to the rape charge was that he and B.A. had engaged
in consensual sex. He did not, however, raise a defense to the criminal
confinement charge. In fact, during closing arguments, Weathers’ counsel told
the jury that the State had “proven their case” on the criminal confinement
charge and that the jury “c[ould] sign the guilty form on that one with
confidence” because Weathers had “confessed to that crime” in his apology
letter, State’s Exhibit 3. (Tr. 134). Weathers’ counsel argued that Weathers’
apology letter was not a confession to the rape charge, and he reminded the jury
that it had the right to accept or reject the evidence presented.
[8] The jury found Weathers guilty as charged. The trial court imposed a nine (9)
year sentence for Weathers’ rape conviction and eighteen (18) months for his
criminal confinement conviction, and it ordered that these sentences be served
concurrently in the Indiana Department of Correction. Weathers now appeals.
Decision
[9] Weathers argues that the trial court committed fundamental error by admitting
certain testimony of Detective Turpin. Specifically, Weathers challenges two
statements made by the detective—one during direct examination and one
during cross-examination—and argues that his statements were opinions of
guilt that should have been excluded from evidence under Indiana Evidence
Rule 704(b). He contends that both of his convictions should be vacated.
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[10] Weathers acknowledges that he did not object to the testimony at trial. His
failure to object to the testimony results in waiver of any argument regarding its
admissibility. See Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 2012) (“Failure
to object at trial waives the issue for review unless fundamental error
occurred.”), reh’g denied. Weathers recognizes this procedural default and
argues that the admission of the testimony constituted fundamental error.
[11] “The fundamental error exception 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.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)
(internal quotation marks omitted). “Harm is not shown by the fact that the
defendant was ultimately convicted; rather harm is found when error is so
prejudicial as to make a fair trial impossible.” Hoglund, 962 N.E.2d at 1239.
The fundamental error 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
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.
[12] We decline to review Weathers’ fundamental error claim relating to the
admission of Detective Turpin’s cross-examination testimony because Weathers
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invited the error he now claims is fundamental. “A party may not invite error,
then later argue that the error supports reversal, because error invited by the
complaining party is not reversible error.” Kingery v. State, 659 N.E.2d 490, 494
(Ind. 1995), reh’g denied. In contrast to fundamental error, “the ‘doctrine of
invited error is grounded in estoppel[]’ and 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. “[F]undamental error gives [appellate courts] leeway to mitigate the
consequences of counsel’s oversights, but invited error precludes relief from
counsel’s strategic decisions gone awry.” Brewington, 7 N.E.3d at 975.
[13] Here, Weather’s counsel specifically asked Detective Turpin to explain the
purpose of having Weathers write an apology letter. The detective’s testimony,
of which Weathers now complains, was in response to his counsel’s question.
Because Weathers invited the detective’s cross-examination testimony and
“[i]nvited errors are not subject to appellate review[,]” we will not review his
challenge to that testimony. Kingery, 659 N.E.2d at 494 (rejecting the
defendant’s fundamental error claim where he elicited the testimony that he
was attempting to challenge on appeal).
[14] Turning to Weathers’ challenge to the admission of Detective Turpin’s direct
examination testimony, we conclude that he has failed to meet his burden of
showing fundamental error. Weathers has failed to show how the admission of
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the detective’s direct examination testimony made a fair trial impossible and
why the circumstances in this case were egregious.
[15] Indeed, even if the trial court had erred in admitting the testimony, any “error[]
in the admission of evidence [is] to be disregarded unless [it] affects the
substantial rights of a party.” Hoglund, 962 N.E.2d at 1238. “The improper
admission [of evidence] is harmless error if the conviction is supported by
substantial independent evidence of guilt satisfying the reviewing court there is
no substantial likelihood the challenged evidence contributed to the
conviction.” Id. Additionally, “‘[a]ny error in the admission of evidence is not
prejudicial, and [is] therefore harmless, if the same or similar evidence has been
admitted without objection or contradiction.’” Id. (quoting McCovens v. State,
539 N.E.2d 26, 30 (Ind. 1989)).
[16] Here, there was substantial evidence apart from the detective’s direct
examination testimony that leads us to conclude that there is no substantial
likelihood the challenged evidence contributed to the conviction. Specifically,
B.A. testified that, after she and Weathers had been arguing, he pushed her on
the bed, tried to kiss her, and told her to give a hug. B.A. refused, pushed
away, and told him no; however, Weathers “pull[ed] [B.A.’s] pants down and
just forced himself inside of [her]” for three to four minutes. (Tr. 17). B.A.
repeatedly told Weathers to stop. After B.A. was eventually able to get
Weathers off of her, he then prevented her from leaving the house. Specifically,
Weathers, “pinned [B.A.] up against the wall” so that she “couldn’t move[,]”
and he held her there for five to ten minutes. (Tr. 20). During closing
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argument, Weathers’ counsel conceded that Weathers was guilty of the
criminal confinement offense and told the jury that it “c[ould] sign the guilty
form on that one with confidence” because Weathers had “confessed to that
crime” in his apology letter, State’s Exhibit 3. (Tr. 134). Furthermore,
Weathers does not challenge the admission of his apology letter written to B.A.
(State’s Exhibit 3)—in which he admitted that he held her and prohibited her
from leaving the house and that he was sorry for having sex with her when she
was mad and should have done it differently. Nor does he challenge the
admission of his recorded police statement (State’s Exhibit 2)—in which he
conceded that B.A. told him “no” two or three times and that he inserted his
penis in her in an effort to “change her mind.” (State’s Ex. 2). Because there
was substantial independent evidence of Weathers’ guilt, we conclude that any
error in the admission of the detective’s direct examination testimony was
harmless and did not constitute fundamental error. See, e.g., Palilonis v. State,
970 N.E.2d 713, 731 (Ind. Ct. App. 2012) (concluding that the admission of
improper vouching testimony was harmless error and not fundamental error).
[17] Affirmed.
Baker, J., and Mathias, J., concur.
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