N.S. v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 31 2019, 11:49 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
Chris M. Teagle Curtis T. Hill, Jr.
Muncie, Indiana Attorney General of Indiana
J. T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
N. S., July 31, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-JV-165
v. Appeal from the Blackford Circuit
Court
State of Indiana, The Honorable Dean Young,
Appellee-Plaintiff. Judge
Trial Court Cause No.
05C01-1808-JD-82
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Respondent, N.S., appeals the juvenile court’s denial of his motion to
correct error following his adjudication as a delinquent child for having
committed what would have constituted intimidation, a Level 5 felony, if
committed by an adult, by placing his victim in fear of retaliation for a prior
lawful act while using a deadly weapon.
[2] We affirm.
ISSUE
[3] N.S. presents one issue on appeal, which we restate as: Whether the juvenile
court abused its discretion in denying N.S.’s motion to correct error after
submitting new evidence which purportedly establishes the complaining witness
recanted his previous trial testimony.
FACTS AND PROCEDURAL HISTORY
[4] On April 23, 2018, M.R. was at Sigma Park in Hartford City, Indiana, when he
was approached by N.S. The boys knew each other from school. However,
N.S. had been found in possession of marijuana on school property and had
been expelled. When N.S. noticed M.R. at the park, N.S. dismounted his bike,
and accosted M.R., asking him if M.R. had “snitched on him.” (Transcript p.
7). M.R. denied this, but N.S. stated, “we have a video of you going down to
the office and snitching.” (Tr. p. 7). N.S. then pulled a black knife with a silver
blade and told M.R. that he was “going to cut [his] shit if [he] snitch[ed] on
[him] again.” (Tr. p. 8). M.R. walked away and N.S. screamed, “You’re a
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dead nigga.” (Tr. p. 9). When M.R. returned home, he informed his parents of
the incident. M.R.’s parents contacted the police.
[5] Victoria Eppard (Eppard) lived in the residence near where M.R. and N.S. were
arguing. She was keeping an eye on the confrontation because she did not want
a fight to ensue. She saw N.S. pull a knife on M.R. “like [N.S.] was being
threatening [sic],” with the blade of the knife being “as clear as day.” (Tr. p.
16). Eppard called the police.
[6] On August 6, 2018, the State filed a Petition, alleging N.S. to be a delinquent
child for having committed what would have constituted intimidation, a Level
5 felony, if committed by an adult by using a deadly weapon to place M.R. in
fear of retaliation for a prior lawful act. On October 23, 2018, the juvenile court
conducted a fact-finding hearing. During the hearing, M.R. was asked multiple
times whether he had lied to others about the incident. Each time, M.R. denied
lying and maintained his allegation that N.S. had pulled a knife on him and had
threatened him. N.S. presented two witnesses who testified that M.R. had told
them that N.S. had not pulled a knife on him. At the conclusion of the fact-
finding hearing, the juvenile court issued an order, finding that the State had
established beyond a reasonable doubt that N.S. had committed what would be
a Level 5 felony intimidation if committed by an adult. On November 16,
2018, the juvenile court held a dispositional hearing and placed N.S. in the
custody of the Blackford County Probation Department Juvenile Division.
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[7] On December 12, 2018, N.S. filed a motion to correct error based on newly-
discovered evidence. Six days later, on December 18, 2018, the juvenile court
conducted a hearing on N.S.’s motion. Denying the motion, the juvenile court
concluded, in pertinent part:
3. That the [c]ourt has reviewed the newly discovered evidence,
which consists of a 44-second recording of the victim in this case
which was obtained by the juvenile’s girlfriend and produced in
open court.
4. That the video recording is offered by the juvenile to
demonstrate that the victim lied during his testimony on the
State’s Petition Alleging Delinquency with respect to the alleged
conduct engaged in by the delinquent in this case. Having heard
the video recording the [c]ourt does not find persuasive the
juvenile’s contention that the victim’s testimony is not credible.
The victim does make certain references that he attempted to get
the Prosecuting Attorney to drop the charges in this case and that
he told the Prosecutor that he had lied. No reference is made as
to which facts he lied about. However, the victim in this case is
also a minor child and it is clear from the testimony presented
during trial and also during the hearing on the [m]otion to
[c]orrect [e]rror that the victim has been under continuing and
intense pressure by friends and family of the delinquent to admit
that he was lying about the facts of the case.
5. That the victim testified regarding the statements made in the
video recording and acknowledged that he in fact did make those
statements. However, the victim also indicated that his
statements were made in response to constant questioning and
urging by the delinquent’s girlfriend, members of the delinquent’s
family, and others to confess to lying regarding the allegations
contained in the State’s petition.
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6. That following the bench trial on the State’s Petition Alleging
Delinquency the [c]ourt indicated on the record and before the
parties and their counsel that the [c]ourt placed great weight on
the testimony of [Eppard]. [Eppard] was an adult witness to the
events alleged in the State’s petition and she corroborated in all
respects the relevant testimony of the victim through her own
eye-witness account.
7. That the [c]ourt is aware from its own common sense and
life’s experiences that young persons who are subject to constant
pressures and questioning regarding an event may recant their
testimony in their effort to terminate the incessant barrage of
questioning and urging by others. Further, this [c]ourt had an
opportunity to judge the demeanor of all witnesses while they
testified in this case, the circumstances surrounding the “newly
discovered” video-tape evidence, and to weigh that testimony
and observations in light of all other testimony and observations
in concluding beyond a reasonable doubt that the juvenile
delinquent committed the acts of delinquency as alleged in the
State’s petition. Further, no evidence has been presented which
moves the [c]ourt from its earlier conclusion of guilt beyond a
reasonable doubt.
(Appellant’s App. Vol. II, pp. 63-65).
[8] N.S. now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
[9] N.S. contends that the trial court abused its discretion by denying his motion to
correct error based on newly-discovered evidence warranting a new trial, i.e., a
video-taped statement indicating that the witness recanted his previous
testimony. A trial court is vested with the discretion to deny a motion to
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correct error alleging newly-discovered evidence, and we will reverse only for
an abuse of that discretion. Harbert v. State, 51 N.E.3d 267, 280 (Ind. Ct. App.
2016), trans. denied.
[10] Motions for a new trial based on newly-discovered evidence are generally
disfavored. Denny v. State, 695 N.E.2d 90, 93 (Ind. 1998). To succeed, the
defendant must satisfy a nine-part test, submitting proof that establishes:
(1) that the evidence has been discovered since trial; (2) that it
is material and relevant; (3) that it is not cumulative; (4) that it
is not merely impeaching; (5) that it is not privileged or
incompetent; (6) that due diligence was used to discover it in
time for trial; (7) that the evidence is worthy of credit; (8) that
it can be produced upon a retrial of the case; and (9) that it
will probably produce a different result.
Harbert, 51 N.E.3d at 280. The defendant bears the burden of showing that the
newly-discovered evidence meets all nine requirements. Godby v. State, 736
N.E.2d 252, 258 (Ind. 2000), reh’g denied.
[11] Here, N.S.’s newly-discovered evidence amounts to a post-trial video-recording
in which M.R. states that he had lied and wanted the prosecutor to drop the
charges. Although the recording merely impeaches M.R.’s previous testimony,
as referenced by N.S., “our supreme court decided long ago that evidence
which destroys or obliterates the testimony upon which a conviction was
obtained is not appropriately considered as merely impeaching evidence.”
Dennis v. State, 2 N.E. 349, 355 (Ind. 1885); Wilson v. State, 677 N.E.2d 586, 588
(Ind. Ct. App. 1997). However, even though M.R. appears to admit in the
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recording that he lied, he never explained what exactly he lied about or what
statement he recanted. As such, we cannot say that the newly-discovered
evidence “destroys or obliterates” M.R.’s trial testimony. See Dennis, 2 N.E.at
355.
[12] Moreover, even if we characterize M.R.’s recorded statement as a complete
recantation of his previous trial testimony, the State correctly points out that a
recantation, or even an admission of perjury, does not necessarily lead to a new
trial if the introduction of the evidence would not probably result in a different
outcome. See Wilson v. State, 677 N.E.2d at 589. In its findings denying N.S.’s
motion to correct error, the juvenile court explained that it had placed “great
weight” on Eppard’s testimony in the adjudication of N.S., as Eppard was an
adult, independent eye-witness who corroborated M.R.’s statements.
(Appellant’s App. Vol. II, p. 64). Furthermore, the juvenile court accounted for
M.R.’s recorded statement as the result of “the incessant barrage of questioning
and urging” by N.S.’s family and friends and thus found the recording to be
unpersuasive. (Appellant’s App. Vol. II, p. 64). Mindful of the juvenile court’s
detailed order, we cannot conclude that the introduction of this new evidence
would probably result in a different outcome. See id. Therefore, we decline to
find error in the juvenile court’s denial of N.S.’s motion to correct error.
CONCLUSION
[13] Based on the foregoing, we hold that the juvenile court appropriately denied
N.S.’s motion to correct error based on new evidence.
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[14] Affirmed.
[15] Vaidik, C. J. and Bradford, J. concur
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