Clardy v. State

1

DeJuan L. Clardy, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.

No. 23A-CR-336

Court of Appeals of Indiana

October 26, 2023

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Marion Superior Court The Honorable Jeffrey L Marchal, Judge Trial Court Cause No. 49D31-1909-F1-35427

ATTORNEY FOR APPELLANT VALERIE K. BOOTS JOSHUA VINCENT MARION COUNTY PUBLIC DEFENDER AGENCY INDIANAPOLIS, INDIANA

ATTORNEYS FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA CAROLINE G. TEMPLETON SUPERVISING DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA

MEMORANDUM DECISION

Tavitas Judge

Case Summary

[¶1] DeJuan Clardy was convicted of two counts of child molesting, one as a Level 1 felony and one as a Level 4 felony. Clardy appeals and argues: (1) the trial court violated his Fifth Amendment right against self-incrimination by commenting on his decision not to testify; and (2) the State presented insufficient evidence to support his convictions. We find Clardy's arguments without merit and, accordingly, affirm.

Issues

[¶2] Clardy raises two issues on appeal, which we reorder and restate as:

I. Whether the trial court violated Clardy's Fifth Amendment right against self-incrimination by commenting on Clardy's decision not to testify.

II. Whether the State presented sufficient evidence to support Clardy's convictions.

Facts

[¶3] J.S. was born in 2006. She has two brothers, M.S. and J.B. When J.S. was approximately seven or eight years old, her mother began dating Clardy, who moved in with the family approximately one year later.

[¶4] When J.S. was approximately eight or nine years old, the family lived in a house in Indianapolis near the Martin Luther King Community Center. J.S. had her own bedroom. One evening, Clardy came into J.S.'s room and began kissing her and touching her breasts. Clardy briefly left to let the dogs inside the house. He then returned to J.S.'s room where he "rubb[ed]" and "lick[ed]" J.S.'s vagina. Tr. Vol. II p. 166.

[¶5] The family eventually moved to a house on Sherman Drive. J.S. had her own room, which was separated from her brothers' room by a bathroom. When J.S. was twelve years old, she was "drifting" into sleep when she felt a "sharp pain" in her vagina and lower abdomen. Id. at 169, 172. J.S. had gone to bed wearing "pineapple underwear" and an "orangish-pinkish type of T-shirt"; however, her underwear had been removed. Id. at 170. J.S. observed that Clardy was "over" her, had his penis a few inches "past th[e] line" of her vagina, and was moving in a "forward, backward type of motion." Id. at 170172. J.S. knew that it was Clardy by the "engine oil type of smell in his dreads." Id. at 170. Clardy told J.S. that "[i]t was [a] secret." Id. at 174.

[¶6] J.S. reported Clardy's inappropriate touching to her mother; however, J.S.'s mother did not believe her. J.S. later reported the inappropriate touching to several of her aunts, who contacted the Department of Child Services ("DCS").

[¶7] According to J.S., in addition to the inappropriate touching, Clardy "would show [J.S.] porn and ask [her] to take videos" of herself for him. Id. at 191. J.S. reported to DCS that these videos would be on Clardy's phone.

[¶8] On September 6, 2019, the State charged Clardy with two counts of child molesting, one as a Level 1 felony and one as a Level 4 felony. The State also alleged that Clardy was an habitual offender.

[¶9] Clardy waived his right to a jury trial, and the trial court held a two-day bench trial in December 2022. J.S. testified regarding the incidents at the two houses. Specifically, she testified that the incident that occurred at the Sherman Drive house when she was twelve years old occurred at night when the rest of the family was home and that her door was shut. During cross-examination, J.S. admitted that, during her deposition, she testified that the incident occurred during the middle of the day after she got home from school and that neither her mother nor her brothers were home. J.S. explained that "there h[ave] been times where [Clardy] has touched [her] during the night and there h[ave] been times when [] he's touched [her] during the day" and that she "got[] the different timeframes mixed up ...." Id. at 190.

[¶10] J.S.'s brothers and mother testified that, in the Sherman Drive house, J.S.'s bedroom did not have a door "leading into the hallway" but that the bathroom that separated her room from her brothers' room had doors. Id. at 229. They further testified that Clardy was never alone with J.S.

[¶11] The trial court found Clardy guilty of both counts. In so doing, the trial court stated the following:

Child molest cases are difficult in that it often comes down to the word of the victim. We like to classify it as he said/she said, but when someone asserts their Fifth Amendment privilege and doesn't take the stand, it really comes down to what she said. And you look very critically at credibility on all angles. And I understand the approach that the Defense has taken in this case to try to put J.S.'s credibility into question.

As it pertains to impeachment, I would say that the impeachment by the Defense is mild. All the Defense has been able to show is that in a deposition, [J.S.] indicated this took place during the day after school when no one was home versus her trial testimony when she discussed that this took place at night when everybody was home. But in all other respects, she was incredibly detailed on what happened to her.

In delayed disclosure cases, sometimes I get testimony that is very general and vague in nature, and it is very difficult for a Court to find guilt beyond a reasonable doubt when the victim can't give specifics as to what happened. [J.S.] was very specific about what happened to her on each of these occasions. And I found her credible, and I found her believable.

Tr. Vol. III pp. 12-13.

[¶12] The trial court later found Clardy to be an habitual offender. The trial court sentenced Clardy to thirty years on Count I, with a ten-year habitual offender enhancement, and a concurrent sentence of six years on Count II for an aggregate sentence of forty years in the Department of Correction. Clardy now appeals.

Discussion and Decision

I. Fifth Amendment-Privilege not to Testify

[¶13] Clardy first argues that the trial court violated his Fifth Amendment right against self-incrimination by commenting on Clardy's decision not to testify at trial.^[1] We are not persuaded.

[¶14] The Fifth Amendment to the United States Constitution prohibits a person from being "compelled in any criminal case to be a witness against himself." Accordingly, a criminal defendant has the privilege not to testify at trial. See, e.g., Bleeke v. Lemmon, 6 N.E.3d 907, 925 (Ind. 2014). Trial courts are prohibited from "commenting at trial on the defendant's refusal to testify." Smith v. State, 160 N.E.3d 1152, 1155 (Ind.Ct.App. 2021) (citing Ziebell v. State, 788 N.E.2d 902, 913 (Ind.Ct.App. 2003)); see also Griffin v. State, 380 U.S. 609, 615 (1965) (holding that the Fifth Amendment "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt").

[¶15] "'[A]bsolute silence'" regarding the defendant's decision not to testify, however, is not required. See Moore v. State, 669 N.E.3d 733, 737 (Ind. 1996) (quoting Long v. State, 56 Ind. 182, 186 (1877)). Rather, a trial court's comment on the defendant's silence "violates a defendant's privilege against compulsory self- incrimination if the statement is subject to reasonable interpretation by a jury as an invitation to draw an adverse inference from a defendant's silence.'" Smith, 160 N.E.3d at 1155 (quoting Ziebell, 788 N.E.2d at 913). On the other hand, when the comment "in its totality is addressed to other evidence rather than the defendant's failure to testify, it is not grounds for reversal." Owens v. State, 937 N.E.2d 880, 893 (Ind.Ct.App. 2010) (citing Boatright v. State, 759 N.E.2d 1038, 1043 (Ind. 2001)), trans. denied. "The defendant bears the burden of showing that a comment improperly penalized the exercise of the right to remain silent." Id. (citing Moore, 669 N.E.2d at 739).

[¶16] Here, we are dealing with a bench trial. Under the judicial temperance presumption, "[w]e generally presume that in a proceeding tried to the bench a court renders its decisions solely on the basis of relevant and probative evidence." Konopasek v. State, 946 N.E.2d 23, 28 (Ind. 2011). "The presumption exists because '[t]he risk of prejudice is quelled when the evidence is solely before the trial court.'" Terpstra v. State, 138 N.E.3d 278, 287 (Ind.Ct.App. 2019) (quoting Conley v. State, 972 N.E.2d 864, 873 (Ind. 2012)), trans. denied.

[¶17] We are not persuaded that the trial court impermissibly considered Clardy's decision not to testify in this case. Read in context, the trial court merely recognized the obvious-that J.S.'s testimony was the only direct evidence of Clardy's offenses. The trial court explained that it looked "very carefully" at J.S.'s credibility and ultimately found her "credible" and "believable." Tr. Vol. II p. 13. In no way did the trial court suggest that it held Clardy's decision not to testify against him. Accordingly, the trial court's comment did not violate Clardy's Fifth Amendment rights. ^[2]

IL. Sufficiency of the Evidence-Incredible Dubiosity Rule

[¶18] Clardy next argues that the State presented insufficient evidence to support his convictions. We are not persuaded.

[¶19] Sufficiency of evidence claims "warrant a...