Opinion
21A-CR-970
08-16-2022
Brent A. Taylor, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
Appellant pro se Brent A. Taylor Michigan City, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General for Indiana Kelly A. Loy Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
Appeal from the Allen Superior Court The Honorable Frances C. Gull, Judge Trial Court Cause No. 02D05-1905-F1-10
Appellant pro se
Brent A. Taylor
Michigan City, Indiana
Attorneys for Appellee
Theodore E. Rokita
Attorney General for Indiana
Kelly A. Loy
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Bailey, Judge. 1
Case Summary
[¶1] Pro-se appellant Brent Taylor ("Taylor") appeals his convictions for Child Molesting, as a Level 1 felony, and Kidnapping, as a Level 5 felony. We affirm.
Ind. Code § 35-42-4-3.
I.C. § 35-42-3-2.
Issues
[¶2] Taylor presents the following issues for review:
I. Whether the trial court abused its discretion in the admission and exclusion of evidence;
II. Whether the introduction into evidence of inconclusive DNA testing results shifted to Taylor the burden to prove his innocence;
III. Whether comments made by the prosecutor in closing argument constituted fundamental error;
IV. Whether the prosecution withheld material and exculpatory evidence in violation of Brady v. Maryland;
V. Whether Taylor was denied the effective assistance of trial counsel;2
VI. Whether sufficient evidence supports Taylor's conviction for Kidnapping;
VII. Whether there was a fatal variance between the Information charging Taylor with Kidnapping and the proof adduced at trial;
VIII. Whether the Kidnapping statute is unconstitutional;
IX. Whether the trial court improperly considered aggravating sentencing factors in violation of Blakely v. Washington;and
X. Whether Taylor's sentence constitutes an abuse of the trial court's discretion or is inappropriate.
373 U.S. 83 (1963).
542 U.S. 296 (2004).
Facts and Procedural History
[¶3] On January 24, 2019, thirteen-year-old A.R. was walking to visit her friend J.M. at a Fort Wayne apartment complex when a black vehicle pulled over alongside A.R. The driver, whom A.R. would later identify as Taylor, offered A.R. a ride and she accepted.
[¶4] Taylor drove to a nearby automated teller machine ("ATM") and withdrew $100.00. He asked A.R. "if [she] wanted to make some money" and A.R. responded, "no." (Tr. Vol. II, pg. 210). Taylor then drove to a nearby church parking lot, where he took down his pants and forced A.R. to perform oral sex 3 on him. Taylor drove A.R. to a location near her friend's residence, unlocked the door, and "let [A.R.] out of the car." (Id. at 213.) A.R. ran to J.M.'s apartment and told her what had happened. A.R. then called police and submitted to a sexual assault examination and investigative interview.
[¶5] Acting upon A.R.'s disclosure that she had been taken to a PNC bank in the neighborhood, police officers obtained ATM footage and were able to see that A.R. had been seated in a black vehicle. The license plate number was visible; the plate belonged to Taylor. Officers then included Taylor's photograph in an array presented to A.R., and A.R. identified Taylor as the man who had picked her up.
[¶6] On May 8, 2019, the State of Indiana charged Taylor with Child Molesting, Rape, Criminal Confinement, and Kidnapping. He was brought to trial before a jury on those charges. The State's theory, addressed in its opening statement and by some of the State's witnesses, was that Taylor had forced A.R. into his vehicle. When A.R. testified, she revealed for the first time that she had voluntarily accepted a ride from Taylor because of the cold weather conditions. The defense theory, as articulated by Taylor in his testimony, was that he picked up A.R. hoping to engage in a money-for-sex transaction, realized that 4 she was a minor, and took her back to J.M.'s neighborhood without engaging in any sexual conduct.
I.C. § 35-42-4-1.
I.C. § 35-42-3-3.
[¶7] On March 11, 2021, the jury acquitted Taylor of Rape but found him guilty of the remaining charges; the trial court entered judgment accordingly. On May 4, 2021, the trial court vacated the judgment of conviction for Criminal Confinement, due to Double Jeopardy concerns. The trial court then conducted a sentencing hearing and imposed upon Taylor consecutive sentences of forty years for Child Molesting and six years for Kidnapping. Taylor now appeals.
Discussion and Decision
Evidentiary Rulings
[¶8] According to Taylor, the trial court abused its discretion by (1) excluding testimony from J.M. as to A.R.'s alleged history of performing sex acts in exchange for money to purchase drugs; (2) admitting testimony from another teenager that Taylor had approached her with a proposition to make money; and (3) admitting testimony of DNA test results although Taylor could not be identified as a contributor.
[¶9] Decisions regarding the admission of evidence are left to the sound discretion of the trial court. Harrison v. State, 32 N.E.3d 240, 250 (Ind.Ct.App. 2015), trans. denied. On appeal, we review the court's decision only for an abuse of that discretion. Id. The trial court abuses its discretion only if its decision regarding 5 the admission of evidence is clearly against the logic and effect of the facts and circumstances before it, or if the court has misinterpreted the law. Id. Even if the trial court's decision was an abuse of discretion, we will not reverse if the admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind.Ct.App. 1999), trans. denied.
[¶10] J.M. Testimony. Prior to trial, the State filed a motion in limine seeking to exclude any evidence that would be impermissible under Indiana Rule of Evidence 412, known as the Rape Shield Rule. In a pretrial conference, defense counsel challenged that motion, asserting that J.M. - initially disclosed as a potential witness for the State and later listed as a defense witness - should be permitted to testify regarding details of A.R.'s alleged past sexual behavior with men and her alleged motivation for such behavior.
[¶11] In response, the prosecutor observed that the defense had failed to comply with the requirement of Evidence Rule 412(c) that written notice of intent to introduce sexual behavior evidence be given within ten days of trial. The prosecutor additionally observed that, in pre-trial interviews, J.M. had been "repeatedly asked by the investigator [to] even tell me a specific instance," and had been unable to do so. (Tr. Vol. II, pg. 70.) The trial court granted the motion in limine to exclude evidence of past sexual behavior. Ultimately, J.M. testified that her former friend, A.R., had seemed "mad upset" on the day in question and had a reputation for untruthfulness in the school community. (Tr. Vol. III, pg. 197.) 6
[¶12] Indiana Evidence Rule 412(a) provides:
The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim or witness engaged in other sexual behavior; or (2) evidence offered to prove a victim's or witness's sexual predisposition.
[¶13] Exceptions available in a criminal case are enumerated in Rule 412(b), as follows:
(A) 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;
(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.
[¶14] Rule 412(c) sets forth the procedure to be implemented:
If a party intends to offer evidence under Rule 412(b), the party must:
(A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered;7
(B) do so at least ten (10) days before trial unless the court, for good cause, sets a different time;
(C) serve the motion on all parties; and
(D) notify the victim or, when appropriate, the victim's guardian or representative.
[¶15] Taylor failed to provide the requisite notice. He failed to support his bald assertions of sexual behavior by identifying any statement made in discovery disclosing a specific instance. And Taylor failed to show that any alleged conduct fell within one of the recognized exceptions of Rule 412. Defense counsel summarily stated that the evidentiary ruling deprived Taylor of a full defense but made no corresponding argument relative to a violation of constitutional rights. Taylor now fails to demonstrate - by making bald assertions - an abuse of discretion in the exclusion of victim sexual behavior evidence. 8
Taylor also asserts that exclusion of his proffered evidence prevented him from countering the so-called "sexual innocence inference" theory. This theory is "'based on the premise that because most children of tender years are ignorant of matters relating to sexual conduct, a child complainant's ability to describe such conduct may persuade the jury that the charged conduct in fact occurred.'" Oatts v. State, 899 N.E.2d 714, 724 (Ind.Ct.App. 2009) (quoting Grant v. Demskie, 75 F.Supp.2d 201, 213 (S.D.N.Y. 1999), aff'd by 234 F.3d 1262 (2nd Cir. 2000)). This theory also reasons that, "'[t]o demonstrate that the child had acquired sufficient knowledge to fabricate a charge against the defendant ... the court should allow the defense to offer evidence that the child acquired sexual experience with someone else before he or she accused the defendant.'" Id. The victim here was thirteen years old. She described the sexual contact as Taylor forcing her to move her hand up and down on his penis and then forcing her head onto his penis. The theory that the victim was a child of tender years ignorant of sexual conduct was not raised by the State or otherwise implicated based upon the record herein.
[¶16] Other Bad Act Testimony. Prior to trial, the State filed a notice of intent to use "evidence of crimes, wrongs, or other acts" as contemplated by Indiana Rule of Evidence 404(b). The State proposed to elicit testimony from J.H. that, when she was fourteen years old, she had been walking home when Taylor stopped his vehicle and asked if J.H. wanted to make money. In a pretrial hearing, the State argued that the testimony was admissible to show "identity, plan, preparation, or motive," Rule 404(b)(2), or to show Taylor's "signature" behavior. (Tr. Vol. II, pg. 4.) Over Taylor's objection, the trial court preliminarily ruled that J.H. would be permitted to testify. In a subsequent pretrial conference, Taylor asked that the trial court revisit its ruling, based upon Taylor's representation that he was not contesting his identity as the man who had picked up A.R. The trial court reaffirmed its preliminary evidentiary ruling.
[¶17] At trial, the State called as witnesses J.H. and J.H.'s mother. J.H.'s mother testified that J.H. came home upset after walking to a store on December 26, 2018, and disclosed that a man pulled his vehicle over and offered her money. J.H.'s mother had contacted police after J.H. saw a news report of Taylor's arrest and recognized him. J.H. testified:
[Taylor] pulled up to me when I was walking home and asked me if I wanted to make some money and I just said no and I kind of, like, freaked out and ran home.
(Tr. Vol. III, pg. 87.) According to J.H., she then had "a panic attack." (Id.) 9
[¶18] "Indiana Evidence Rule 404(b) serves to safeguard the presumption of innocence in favor of criminal defendants." Fairbanks v. State, 119 N.E.3d 564, 565 (Ind. 2019). The Rule's mandate is clear: a court may not admit evidence of another crime, wrong, or act "to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Evid. R. 404(b). This restriction prevents the jury from indulging in the "forbidden inference" that a criminal defendant's "prior wrongful conduct suggests present guilt." Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind. 1999).
[¶19] However, Rule 404(b) does not totally proscribe other-bad-acts evidence-only its use as character evidence. The Rule states that other-bad-acts evidence may be admissible for other purposes, and it provides an illustrative list-to show "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Evid. R. 404(b)(2). So when the State claims that other-bad-acts evidence is admissible for a proper purpose, the trial court is tasked with deciding whether that evidence "is relevant to a matter at issue other than the defendant's propensity to commit the charged act." Hicks v. State, 690 N.E.2d 215, 219 (Ind. 1997). If the evidence passes that relevance test, it has to clear a second hurdle: Indiana Evidence Rule 403's balancing test. In applying Rule 403, the trial court must conclude that the evidence's probative value is not "substantially outweighed" by the danger of unfair prejudice, Evid. R. 403-otherwise, the evidence is not admissible. Hicks, 690 N.E.2d at 223. 10
[¶20] In Wickizer v. State, our Supreme court held that Rule 404(b)'s intent exception is available only "when a defendant goes beyond merely denying the charged culpability and affirmatively presents a claim of particular contrary intent." 626 N.E.2d 795, 799 (Ind. 1993). The Wickizer Court reasoned that to allow other bad acts evidence to prove intent when a defendant merely denies involvement in a crime would often produce the "forbidden inference." Id.
[¶21] Subsequently, our Supreme court has refused to extend Wickizer to other Rule 404(b) exceptions. See, e.g., Fairbanks, 119 N.E.3d at 570 (concluding that the concerns that led to the narrow construction of the intent exception were not applicable to other 404(b) exceptions); Hicks, 690 N.E.2d at 222 n.12 (finding that "motive and most other collateral issues are unlike intent" and less likely to produce the forbidden inference); Goodner v. State, 685 N.E.2d 1058, 1061 n.3 (Ind. 1997) (finding the "[o]ther exceptions under 404(b) necessarily involve a different set of issues").
[¶22] Here, in the opening statement, defense counsel admitted that Taylor had picked up A.R., but claimed that there had been "talk of a transaction," implying voluntariness or interest on the part of both persons. (Tr. Vol. II, pg. 199.) The testimony of J.H. was relevant to show Taylor's plan and motive --to get teenagers into his vehicle for sexual purposes. The second inquiry is whether the probative value was substantially outweighed by the danger of unfair prejudice. Although the testimony of J.H. and her mother was prejudicial to Taylor, it was substantially cumulative. Taylor testified that he 11 traversed the area in question to pick up prostitutes or someone willing to accept money for sexual conduct. He elaborated:
I am around drugs, I tend to, I guess, look at someone and think that maybe they're looking for drugs or they would be open to that kind of thing, and I would actually ask them if they wanted to make money.
(Tr. Vol. 3, pg. 212.) Taylor admitted that, in the course of his cruising, it was possible that he had tried to pick up J.H. He did not corroborate the testimony of J.H. and her mother that J.H. had been panicked or upset. We conclude that, at most, Taylor has identified harmless error in this regard.
[¶23] DNA evidence. Law enforcement officers collected from A.R. and submitted for DNA testing in Indiana State Police laboratories the following: an oral swab, fingernail scrapings, material from a shirt wristband, a neck swab, a hand swab, and facial swabs. No seminal fluid was detected. The oral and neck swabs and fingernail scrapings disclosed no male DNA. However, initial testing revealed the presence of male DNA on the swabs from A.R.'s right hand, wristband, face, cheek, and lip. Two of the samples, the wristband and right-hand swabs, were of sufficient quantity to be submitted for additional, male-specific Y-STR testing. The facial swabs lacked sufficient male DNA for further testing. 12
In a Y-STR test, the STR test evaluates male and female DNA to create a profile unique to an individual; the Y portion looks for the Y chromosome, which is found only in male DNA.
[¶24] At the conclusion of the testing, no profile had been developed. According to forensic scientist Melissa Myers, the samples consisted of an "indistinguishable mix" and did not "qualify for statistical analysis." (Tr. Vol. III, pg. 160.) The cumulative report stated that there was "a lack of evidence for comparison." (Id. at 162.) Taylor argues that the trial court abused its discretion by admitting DNA evidence because "evidence of a DNA 'non-match' is meaningless" and the mere presence of male DNA was used by the State to bolster the victim's testimony. Appellant's Brief at 31.
[¶25] To be admissible at trial, evidence must be relevant, that is, "it [must have] any tendency to make a fact more or less probable than it would be without the evidence; and the fact [must be] of consequence in determining the action." Evid. R. 401. "Irrelevant evidence is not admissible." Evid. R. 402. The admission of expert testimony on DNA evidence is governed by Evid. R. 702:
(a) A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
(b) Expert scientific testimony is admissible only if the court is satisfied that the expert testimony rests upon reliable scientific principles.
[¶26] "DNA evidence is admissible in Indiana when the DNA analysis indicates a defendant's profile is consistent with DNA found at the crime scene because such evidence has high probative value." Deloney v. State, 938 N.E.2d 724, 729 (Ind.Ct.App. 2010), 13 trans. denied. In Deloney, the Court considered the admissibility of DNA evidence when a defendant could not be excluded from a possibly infinite number of people matching the crime-scene DNA and the DNA expert cannot offer a statistical probability whether the crime scene DNA came from the defendant. The Court concluded: "DNA evidence that does not constitute a match or is not accompanied by statistical data regarding the probability of a defendant's contribution to a mixed sample is not relevant, Evid. R. 402, and should not be admitted." Id. at 730. Such testimony "could not assist the jury in understanding the evidence or make the existence of some fact more probable or less probable." Id.
[¶27] We have subsequently recognized that not every case of inconclusive DNA results presents the same concerns as those present in Deloney. In Rodriquez v. State, 158 N.E.3d 802 (Ind.Ct.App. 2020), Rodriquez had been accused of licking a child's vagina; internal and external swabs were taken for DNA analysis. See id. at 804. Rodriquez appealed his conviction for child molesting, contending that inconclusive DNA results should not have been admitted. Male DNA was present on the internal swabs but the profile was "inconclusive due to insufficient sample data." Id. at 805. However, the comparable Y-STR DNA profile from the external swabs was consistent with Rodriguez's Y-STR DNA profile "to the highest statistical degree possible based on the crime lab's database." Id.
[¶28] In distinguishing Deloney, the Rodriquez Court explained: 14
First, the DNA evidence in Deloney is distinct from the challenged evidence. Unlike the STR analysis in Deloney, which creates a unique DNA profile that is used to identity a match, neither the serological test for saliva nor the Y-STR analysis can be used to "match" a particular individual. Indeed, for the serological test, the "most" a scientist can say is that a sample is "inconclusive or indicative of" saliva. Tr. Vol. 3, p. 28. And, for the Y-STR analysis, even when there is enough male DNA to create a comparable profile, it "is not unique to an individual." Id. at 72. Thus, the Deloney panel's concern with "DNA evidence that does not constitute a match" is not implicated in the same way here. 938 N.E.2d at 730.
Second, this case does not involve a mixed sample of male DNA or the question of identity. There is no dispute that Rodriguez watched O.G. on the day in question, and there is no suggestion that the male DNA profile obtained from the internal swabs was a mixed example. As a result, this case does not involve "statistical data regarding the probability of a defendant's contribution to a mixed sample." Id.
Further, under the facts of this case, the inconclusive test results are relevant-they could assist the jury in determining Rodriguez's guilt or innocence. Though the swabs were inconclusive for the presence of saliva, they contained the enzyme amylase, which "is found in high levels in saliva." Tr. Vol. 3, p. 9. Additionally, while there was not enough male DNA to obtain a comparable Y-STR profile from the internal swabs, they still contained male DNA. The presence of amylase and male DNA on the samples, as opposed to an absence of either, makes it more probable that O.G. was molested in the manner she described.Id. at 806-07. 15
[¶29] Unlike that in Rodriquez, the testing in this case testing involved a mixed sample. In light of the small samples and multiple contributors, test results distilled to: only female DNA was found on A.R.'s wristband; some male DNA was found on A.R.'s right hand; and male DNA - in an amount too small to subject to testing that would support statistical analysis - was present on A.R.'s face. Testimony of these results lacks high probative value in proving that a crime took place.
[¶30] That said, however, Taylor advised the jury in opening and closing that no DNA result tied Taylor to a crime. This contention was supported by testimony from the State's forensic scientists. The forensic scientist who initially examined the swabs stated that she developed no DNA profile; as such, there was "nothing to compare" to Taylor's profile; the oral swabs did not show the presence of semen or male DNA; and there was no "match or link" to Taylor. (Tr. Vol. III, pgs. 150-52.) The forensic scientist who performed Y-STR testing stated that she could draw no comparison to Taylor.
[¶31] The improper admission of evidence is harmless error "if there is substantial independent evidence of guilt and we are satisfied that there is no substantial likelihood the challenged evidence contributed to the conviction." Laird v. State, 103 N.E.3d 1171, 1178 (Ind.Ct.App. 2018), trans. denied. Here, there was substantial independent evidence of guilt, and we are satisfied that the DNA testimony, which was neither incriminating nor exculpatory, did not contribute to the conviction. 16
[¶32] Course of Investigation Evidence. Finally, with regard to the admission of evidence, Taylor claims that the trial court admitted irrelevant testimony under the "course of investigation" exception to the hearsay rule. Hearsay is an out-of-court statement offered for "the truth of the matter asserted," Evid. R. 801(c)(2), and it is generally not admissible as evidence. Evid. R. 802. Out-of-court statements made to law enforcement are non-hearsay if introduced primarily to explain why the investigation proceeded as it did. Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014). The purpose of the course of investigation exception is to bridge gaps in the testimony that would otherwise substantially confuse or mislead the jury. Id.
[¶33] Taylor complains that the first responding officer was allowed to repeat A.R.'s account of events, effectively bolstering A.R.'s testimony. Taylor also suggests that officer testimony regarding his flight to Iowa and eventual apprehension was totally irrelevant. Taylor did not make such relevancy or hearsay objections at trial and thus can prevail upon his argument only if he demonstrates fundamental error. Batchelor v. State, 119 N.E.3d 550, 559 (2019). An error is fundamental if it "made a fair trial impossible" or if it clearly and blatantly violated basic principles of due process resulting in "undeniable and substantial potential for harm." Id. (quoting Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018). Taylor presents no argument of fundamental error, and our review of the record discloses no denial of a fair trial or clear violation of basic principles of due process. As such, Taylor has not shown fundamental error in the admission of evidence. 17
Shifting of Burden of Proof
[¶34] According to Taylor, he was denied due process when he was compelled to prove his innocence of sexual contact with A.R. Taylor directs our attention to the language of In re Winship, 397 U.S. 358 (1970). "[T]he Due Process Clause [of the United States Constitution] protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Id. at 364.
[¶35] To convict Taylor of child molesting, as a Level 1 felony, as charged, the State was required to establish, beyond a reasonable doubt, that Taylor, being at least twenty-one years of age, knowingly or intentionally performed or submitted to other sexual conduct, as defined by Indiana Code Section 35-31.5-2-221.5, with A.R., a child under fourteen years of age. I.C. § 35-42-4-3; Tr. Vol. II, pg. 73. "Other sexual conduct" includes an act involving a sex organ of one person and the mouth or anus of another person. I.C. § 35-31.5-2-221.5(1). The jury was instructed that the State bore the burden to prove, beyond a reasonable doubt, each of the foregoing elements.
[¶36] Taylor observes that the State proffered inconclusive DNA test results and he then argues:
by producing the DNA evidence in the manner the State did, despite its irrelevance and contrary to Ind. Evidence Rule 401, the State relieved themselves of the burden of proving the fact that sexual contact occurred between the allege[d] victim and the Appellant.18
Appellant's Brief at 53. At bottom, Taylor appears to have renewed his argument that DNA evidence was improperly admitted. To the extent that he is arguing insufficient proof of sexual contact was adduced, our review of the record indicates otherwise.
[¶37] A.R. testified in relevant part:
He pulled his pants down, asked me if I wanted to do things to him. I said no, I wanted to go to my friend's house. He put my head onto his penis and forced me to submit.(Tr. Vol. II, pg. 210.) A.R. specified that Taylor forced her mouth onto his penis. As to the commission of other sexual conduct, as alleged, the State did not fail to meet is burden of proof, as articulated in Winship.
Prosecutorial Misconduct - Closing Argument
[¶38] During closing argument, the prosecutor made comments that Taylor describes as inflammatory and unsupported by the evidence. He did not lodge a contemporaneous objection, request a jury admonishment, or move for a mistrial, and thus concedes that appellate review of the prosecutor's comments is limited to fundamental error.
[¶39] Generally, when reviewing a claim of prosecutorial misconduct, we determine whether misconduct occurred and, if so, whether the misconduct placed the defendant in a position of grave peril to which he or she would not have otherwise been subjected. Jerden v. State, 37 N.E.3d 494, 498 (Ind.Ct.App. 2015). The gravity of peril is measured by the probable persuasive effect of the 19 misconduct on the jury's decision rather than the degree of impropriety of the conduct. Id. To preserve a claim of prosecutorial misconduct, the defendant must request the jury be admonished at the time the alleged misconduct occurs, and if further relief is needed, move for a mistrial. Id. Failure to do so results in waiver. Id. Where, as here, a prosecutorial misconduct claim has been waived for failure to preserve, the defendant must establish not only the grounds for misconduct but also that the misconduct resulted in fundamental error, an extremely narrow exception. Id.
[¶40] The commentary which Taylor now finds objectionable includes the following. With reference to J.M.'s testimony regarding her former friend, A.R., the prosecutor stated that J.M. was "shading" her testimony and had "an axe to grind," and the prosecutor entreated the jury to look at the testimony "with that lens." (Tr. Vol. II, pg. 9-10.) The prosecutor claimed that, in a pretrial interview, J.M. had provided a different characterization of A.R.'s demeanor after the incident - A.R. had purportedly been upset and not angry. Finally, the prosecutor likened Taylor to "the guy in the van with candy" to lure a child. (Id. at 7.)
[¶41] Whether a prosecutor's statements to the jury constitute misconduct is determined "by reference to case law and the disciplinary rules of the Code of Professional Responsibility." Mahla v. State, 496 N.E.2d 568, 572 (Ind. 1986). It is proper for the prosecutor to argue both law and fact during closing argument and propound conclusions based on an analysis of the evidence. Hand v. State, 863 N.E.2d 386, 394 (Ind.Ct.App. 2007). In judging the 20 propriety of a prosecutor's remarks, we consider the challenged statements in the context of the argument as a whole. Id. "A prosecutor may comment on the credibility of the witnesses only if the assertions are based on reasons which arise from the evidence." Gaby v. State, 949 N.E.2d 870, 881 (Ind.Ct.App. 2011). However, a prosecutor is entitled to respond to allegations and inferences raised by the defense even if the prosecutor's response would otherwise be objectionable. Hand, 863 N.E.2d at 394.
[¶42] The prosecutor's statement that Taylor was like a man trying to lure a child into his vehicle with candy was a fair comparison based upon the evidence. Indeed, Taylor himself testified that it was his practice to drive around and attempt to locate someone who would be enticed by the money that he offered to engage in sexual conduct with him.
[¶43] When the prosecutor described J.M. as having "an axe to grind," she was asking the jury to draw inferences from the testimony they had heard. J.M. and A.R. had been friends since kindergarten but had ended their friendship before trial. On the day of the encounter between A.R. and Taylor, J.M. had assisted A.R. with contacting police; she had provided the telephone and waited with A.R. Later, at trial, she portrayed A.R. as having been angry but not in crisis. The prosecutor fairly drew attention to such divergence. However, when the prosecutor referred to a purported discrepancy between J.M.'s testimony and her earlier statement to an investigator, the prosecutor was not referring to a matter in evidence. Although the discrepancy was addressed in a bench conference with counsel, no testimony was adduced in this regard. That said, 21 however, it was an isolated instance, and the jury was instructed that statements made by counsel were not evidence. Under the circumstances of the case, we conclude that Taylor was not placed in grave peril by the prosecutor's comments.
Brady Violation
[¶44] Taylor next contends that the State withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. "To prevail on a Brady claim, a defendant must establish: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence was material to an issue at trial." Minnick v. State, 698 N.E.2d 745, 755 (Ind. 1998). Evidence is material under Brady "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 685 (1985). A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome. Id. at 682. However, the State will not be found to have suppressed material evidence if it was available to a defendant through the exercise of reasonable diligence. Conner v. State, 711 N.E.2d 1238, 1246 (Ind. 1999). "Favorable evidence" includes both exculpatory evidence and impeachment evidence. See Prewitt v. State, 819 N.E.2d 393, 401 (Ind.Ct.App. 2004), trans. denied. 22 Suppression of Brady evidence is constitutional error warranting a new trial. Turney v. State, 759 N.E.2d 671, 675 (Ind.Ct.App. 2001), trans. denied.
[¶45] Taylor seeks copies of victim and witness statements and Department of Child Services records that were provided by the prosecution to his trial attorney. He claims that the statements include impeachment evidence and a basis for demonstrating the incredible dubiosity of the victim. According to Taylor, "his former counsel and the Chief Public Defender of Allen County are appendages of the State of Indiana" and "it is undisputable that the public defender [is] responsible for the suppression of the aforementioned evidence." Appellant's Brief at 72. As best we can discern Taylor's Brady claim, he claims that he is entitled to, but has not been provided with, the trial defense file of discovery materials that were actually provided by the prosecution. Accordingly, Taylor has failed to establish the first prong of a Brady claim, that is, "that the prosecution suppressed evidence." Minnick, 698 N.E.2d at 755.
At a pretrial conference discussing discovery, counsel for both parties represented to the trial court that the defense had deposed a DNA expert. The prosecution had tendered DCS documents to the defense. Finally, the prosecutor maintained that she had provided the defense with her "verbatim" notes of interviews with J.M., J.M.'s mother, and J.M.'s aunt, that the defense had been able to view third-party documents, and that the prosecutor had "provided all I have" to the defense. (Tr. Vol. II, pg. 45.)
Assistance of Trial Counsel
[¶46] Taylor contends that he did not receive the effective assistance of trial counsel. He acknowledges that "a post-conviction hearing is normally the preferred forum to adjudicate an ineffectiveness claim." Pryor v. State, 973 N.E.2d 629, 632 (Ind.Ct.App. 2012). 23 However, he claims that development of an evidentiary record in post-conviction proceedings is unnecessary in this case, because "the reasoning of the trial court is apparent from the record." Appellant's Brief at 44.
[¶47] Effectiveness of counsel is a mixed question of law and fact. Strickland v. Washington, 466 U.S. 668, 698 (1984). We evaluate Sixth Amendment claims of ineffective assistance under the two-part test announced in Strickland. Id. To prevail on an ineffective assistance of counsel claim, a defendant must demonstrate both deficient performance and resulting prejudice. Dobbins v. State, 721 N.E.2d 867, 873 (Ind. 1999) (citing Strickland, 466 U.S. at 687). Deficient performance is that which falls below an objective standard of reasonableness. Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d 1153, 1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see also Cook v. State, 675 N.E.2d 687, 692 (Ind. 1996). The two prongs of the Strickland test are separate and independent inquiries. Strickland, 466 U.S. at 697. Thus, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." Id.
[¶48] We "strongly presume" that counsel provided adequate assistance and exercised reasonable professional judgment in all significant decisions. McCary v. State, 24 761 N.E.2d 389, 392 (Ind. 2002). Counsel is to be afforded considerable discretion in the choice of strategy and tactics. Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001). Counsel's conduct is assessed based upon the facts known at the time and not through hindsight. State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997). We do not "second-guess" strategic decisions requiring reasonable professional judgment even if the strategy in hindsight did not serve the defendant's interests. Id. In sum, trial strategy is not subject to attack through an ineffective assistance of counsel claim, unless the strategy is so deficient or unreasonable as to fall outside the objective standard of reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).
[¶49] Taylor contends that trial counsel performed deficiently by failing to: give timely notice of intent to introduce sexual behavior evidence pursuant to Evidence Rule 412; conduct an interview of a witness's mother; investigate the locking mechanism of Taylor's vehicle; more thoroughly investigate or challenge DNA test results; and object to improper prosecutorial comments.
[¶50] Notice of Intent to Introduce Sexual Behavior Evidence. It is clear from the record that defense counsel did not file a Rule 412 notice and it is equally apparent from defense counsel's argument that this was an oversight and not a matter of his chosen trial strategy. Defense counsel strenuously argued that the trial court should dispense with the notice requirement. Nevertheless, Taylor has not shown that he was prejudiced by the omission of the notice. The evidence that Taylor desired to have admitted, as now described in his bald assertions, is of the type facially excluded by the Rape Shield Rule. And he has 25 made no showing that a recognized exception applies. Accordingly, he has shown no prejudice from his defense counsel's oversight.
[¶51] Investigative Efforts. As Taylor observes, counsel has a duty to make reasonable investigations or to make a reasonable decision that a particular investigation is unnecessary. Strickland, 466 U.S. at 690-91. When deciding a claim of ineffective assistance for failure to investigate, "we apply a great deal of deference to counsel's judgments." Boesch v. State, 778 N.E.2d 1276, 1283 (Ind. 2002). "[E]stablishing failure to investigate as a ground for ineffective assistance of counsel requires going beyond the trial record to show what investigation, if undertaken, would have produced." McKnight v. State, 1 N.E.3d 193, 201 (Ind.Ct.App. 2013). Here, Taylor falls short.
[¶52] Without testimony from defense counsel or other development of an evidentiary record, we are unaware of whether defense counsel did, in fact, interview a particular witness or inspect potential physical evidence, such as a locking mechanism. We cannot simply speculate that defense counsel failed to act reasonably; rather, we presume that he exercised reasonable professional judgment. McCary, 761 N.E.2d at 392. As for DNA test interpretation, the record indicates that defense counsel retained and deposed an expert; counsel called the expert witness to testify on Taylor's behalf. As for procuring additional DNA testing, it was uncontested in pretrial proceedings that there was insufficient material to allow additional testing by either the State or the defense. Taylor has not shown that his trial counsel performed deficiently with respect to investigative efforts. 26
[¶53] Lack of Objections to Prosecutorial Comments. "A decision to object or not to object is a matter of trial strategy, and counsel is presumed to have acted effectively in making the decisions." Gibson v. State, 133 N.E.3d 673, 692 (Ind. 2019). In the context of an ineffective assistance of counsel claim, a defendant must prove that an objection would have been sustained if made and that he was prejudiced by the failure. Id. As we have previously observed, the majority of the prosecutor's statements were reasonable commentary based upon the evidence. Although the prosecutor referenced a bench conference discussion that was not evidence, and defense counsel failed to object, an isolated incident does not establish ineffectiveness. Thompson v. State, 671 N.E.2d 1165, 1172 (Ind. 1996). Taylor has not shown prejudice from his trial counsel's failure to object. In sum, he has not established that he was denied the effective assistance of counsel.
Kidnapping - Sufficiency of the Evidence
[¶54] Taylor challenges his conviction for Kidnapping, alternately arguing that the State adduced insufficient evidence, that there was a fatal variance between the charging Information and the proof adduced, and that the Kidnapping statute is unconstitutional as applied to him because the terms "fraud" and "entice," Ind. Code § 35-42-3-2, are so vague that he was not advised what type of conduct was prohibited. The crux of Taylor's claim is that the State initially pursued the Kidnapping charge upon belief that Taylor forcibly pulled A.R. into his vehicle, but the State changed its theory after A.R. testified that she accepted a ride to escape the cold. 27
[¶55] To convict Taylor of Kidnapping, as a Level 5 felony as charged, the State was required to establish beyond a reasonable doubt that Taylor "did knowingly or intentionally remove [A.R.] by fraud, enticement, force, or threat of force from one place to another with said act committed by using a vehicle." I.C. § 35-42-3-2(b)(1)(B); App. Vol. II, pg. 78. When confronted with a challenge to the sufficiency of the evidence to support a conviction, we will affirm the judgment unless no reasonable factfinder could find the defendant guilty. Sutton v. State, 167 N.E.3d 800, 801 (Ind.Ct.App. 2021). The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. Id.
[¶56] A.R. testified that she accepted a ride from Taylor to get out of the cold and she repudiated her earlier statement that Taylor had pulled her into his vehicle. But she also testified that, once inside the vehicle, she heard the locks click, the locks remained engaged, and Taylor unlocked the vehicle to let her out. Officer Adam Crall testified that A.R. disclosed to him in the initial interview that she had refused to open her mouth, but Taylor threatened, "if you do not open your mouth, you do not get out." (Tr. Vol. II, pg. 240.) From this testimony, the jury could reasonably infer that Taylor used or threatened force when removing A.R. from one place to another. Moreover, from Taylor's testimony that he scouted the area for sexual partners, contrasted with A.R.'s testimony that she was simply accepting a ride, the jury could infer that Taylor intentionally 28 removed A.R. by fraud. There is sufficient evidence to support Taylor's conviction for Kidnapping.
In the context of an analysis of a Criminal Confinement statute, "fraud" has been described as "trickery," "deception," or "deceit." Brown v. State, 868 N.E.2d 464, 468 (Ind. 2007).
Variance
[¶57] Taylor contends that his Kidnapping conviction must be reversed because "there was a fatal variance between the charging information and the proof offered at trial." Appellant's Brief at 66. He points to "the abrupt change in the State's theory" from force to fraud and enticement and claims that he "was not prepared to defend against the State's alternative theory related to fraud and enticement." Id. at 67.
Because the charging information advises a defendant of the accusations against him, the allegations in the pleading and the evidence used at trial must be consistent with one another. Simmons v. State, 585 N.E.2d 1341, 1344 (Ind.Ct.App. 1992). A variance is an essential difference between the two. Mitchem v. State, 685 N.E.2d 671, 677 (Ind. 1997). Not all variances, however, are fatal. Id. Relief is required only if the variance (1) misled the defendant in preparing a defense, resulting in prejudice, or (2) leaves the defendant vulnerable to future prosecution under the same evidence. Winn v. State, 748 N.E.2d 352, 356 (Ind. 2001).Blount v. State, 22 N.E.3d 559, 569 (Ind. 2014). 29
[¶58] Here, the charging information adequately informed Taylor that he was charged with Kidnapping, with the removal being accomplished by "fraud, enticement, force, or threat of force." (Tr. Vol. II, pg. 28.) Thus, Taylor was on notice that he needed to be prepared to defend against allegations of fraud, enticement, force, or threat of force. When the victim testified so as to exclude actual physical force, the prosecution based its case upon the other methods it had alleged and offered sufficient evidence of such. There is no fatal variance.
Constitutionality of Kidnapping Statute
[¶59] Taylor contends that the Kidnapping statute employs the terms "enticement" and "fraud" with such vagueness that it "embraces a vast assortment of conduct that is not criminal in nature." Appellant's Brief at 64. "A criminal statute may be invalidated for vagueness for either of two independent reasons: (1) for failing to provide notice enabling ordinary people to understand the conduct that it prohibits, and (2) for the possibility that it authorizes or encourages arbitrary or discriminatory enforcement." Brown v. State, 868 N.E.2d 464, 467 (Ind. 2007).
[¶60] Indiana Code Section 35-34-1-6(a) provides that "[a]n indictment or information is defective when ... the statute defining the offense charged is unconstitutional or otherwise invalid." Indiana Code Section 35-34-1-4(a) (2004) provides that the trial court "may, upon motion of the defendant, dismiss the indictment or information upon any of the following grounds: ... (1) The indictment or information, or any count thereof, is defective under section 6 of this chapter." The motion must "be made no later than ... twenty (20) days 30 if the defendant is charged with a felony ... prior to the omnibus date." I.C. § 35-34-1-4(b)(1). A motion made after this time "may be summarily denied if based upon a ground specified in subdivision (a)(1)[.]" I.C. § 35-34-1-4(b). Taylor acknowledges that he waived the issue of constitutionality by failing to file a motion to dismiss the charge during the trial, citing Payne v. State, 484 N.E.2d 16, 18 (Ind. 1985), which stated that, "[g]enerally, the failure to file a proper motion to dismiss raising the Constitutional challenge waives the issue on appeal."
[¶61] This Court may address a constitutional claim notwithstanding waiver. Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind.Ct.App. 2008). When a statute is thus challenged, we presume the statute is constitutional. Id. It is the defendant's burden to rebut this presumption, with reference to the precise circumstances of the case, and we must resolve all reasonable doubts in favor of the statute's constitutionality. Id. A statute will not be held to be unconstitutionally vague if individuals of ordinary intelligence would comprehend it adequately to inform them of generally proscribed conduct. Id. A "line must be drawn" so that prosecutions for trivial acts and omissions will not occur. Id.
[¶62] Taylor asks that we exercise our discretion to consider the merits of his waived claim for these reasons:
First, the State's original theory did not encompass the application of the word "enticement" or "fraud" regarding Appellant's conviction for kidnapping. (The record reflects the31
State's position was that Appellant pulled the alleged victim in the car)[.] Therefore, force not "fraud" or "enticement" was the fact believed to be behind why Appellant was charged with Kidnapping during the preparation of Appellant's defense for kidnapping. Second, Appellant's counsel proffered a Motion to Dismiss count four (4) kidnapping. The reason behind Appellant's counsel's Motion to Dismiss was the [sic] during her sworn testimony, the alleged victim stated that she was not pulled into Appellant's car and that she had got in the car willingly. Finally, the State's theory regarding the kidnapping charge was not changed to encompass its theory of "fraud" and "enticement" until its closing argument rendering it impossible to rebuttal [sic] the State's new theory.
Appellant's Brief at 63 (record citations omitted). As such, Taylor reiterates his argument that the State should have been precluded from prosecuting him for Kidnapping after A.R. repudiated the physical force claim - as opposed to demonstrating infirmity of the statute. We decline to exercise our discretion to address the waived claim.
Blakely Claim
[¶63] Taylor claims that his Sixth Amendment rights were violated when the trial court considered some aggravating sentencing factors, such as his past misconduct and flight from prosecution, because the facts were not found by a jury or admitted by him, in accordance with Blakely v. Washington, 542 U.S. 296 (2004). In Blakely, the Court held: "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 301. 32
[¶64] On March 9, 2005, the Indiana Supreme Court held that portions of Indiana's sentencing scheme in effect at that time violated the Sixth Amendment right to trial by jury and that the new procedural rule defined in Blakely should apply to all cases pending on direct review at the time it was decided:
First, as a new rule of constitutional procedure, we will apply Blakely retroactively to all cases on direct review at the time Blakely was announced. Second, a defendant need not have objected at trial in order to raise a Blakely claim on appeal inasmuch as not raising a Blakely claim before its issuance would fall within the range of effective lawyering. Third, those defendants who did not appeal their sentence at all will have forfeited any Blakely claim.Smylie v. State, 823 N.E.2d 679, 690-91 (Ind. 2005).
[¶65] Pursuant to Blakely and Smylie, trial courts could only enhance a sentence above the presumptive time based upon facts established in one of several ways: (1) as a fact of prior conviction; (2) by a jury beyond a reasonable doubt; (3) when admitted by a defendant; and (4) in the course of a guilty plea where the defendant waived his or her Sixth Amendment rights and stipulated to certain facts. Trusley v. State, 829 N.E.2d 923, 925 (Ind. 2005). In both Blakely and Smylie, the Courts focused on how certain facts were found, as opposed to the nature of the aggravators. Id.
[¶66] Subsequently, Indiana amended its sentencing scheme to the advisory sentencing scheme "apparently ... to resolve the Sixth Amendment problem Blakely presented." Anglemyer v. State, 868 N.E.2d 482, 489 (Ind. 2007). Taylor 33 committed his crimes in January of 2019, when the advisory sentencing scheme, as opposed to the presumptive sentencing scheme that ran afoul of Blakely, was in effect. We apply the sentencing scheme in effect at the time of the defendant's offense. Chastain v. State, 165 N.E.3d 589, 597 (Ind.Ct.App. 2021), trans. denied. Taylor has not established a violation of his Sixth Amendment rights.
Sentencing
[¶67] Upon conviction of a Level 1 felony, Taylor was subject to a sentence of between twenty years and forty years, with an advisory sentence of thirty years. I.C. § 35-50-2-4(b). Upon conviction of a Level 5 felony, Taylor was subject to a sentence of between one year and six years, with an advisory sentence of three years. I.C. § 35-50-2-6(b). Taylor received maximum and consecutive sentences and now argues that the trial court abused its sentencing discretion because Taylor is not the worst offender for whom a maximum sentence should be reserved.
[¶68] In sentencing Taylor, the trial court observed that Taylor had some criminal history, he had engaged in a pattern of illegal conduct, and the victim in the instant case experienced great fear. The trial court additionally observed that Taylor had exhibited disregard for court orders, as evidenced by his flight from the jurisdiction and his in-court outbursts that ultimately led to a contempt-of-court sentence. The trial court did not find sentencing mitigators. Taylor concedes that the trial court could properly consider his criminal history. He 34 then argues that he did not deserve a maximum sentence and he appears to challenge the weight accorded by the trial court to the aggravators found.
[¶69] Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). A trial court abuses its discretion when its 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. Id. Our Supreme Court has previously explained that under our advisory sentencing scheme, trial courts no longer have any obligation to weigh aggravating and mitigating factors against each other when imposing a sentence. Id. at 491. Therefore, the weight the trial court gives to any aggravating circumstances is not subject to appellate review. Id.
[¶70] The Anglemyer Court explained that review of the merits of a sentence may be sought on the grounds outlined in Appellate Rule 7(B):
Although a trial court may have acted within its lawful discretion in determining a sentence, Article VII, Sections 4 and 6 of the Indiana Constitution "authorize[ ] independent appellate review and revision of a sentence imposed by the trial court." Childress, 848 N.E.2d at 1080 (emphasis omitted) (quoting Buchanan v. State, 767 N.E.2d 967, 972 (Ind. 2002)). This appellate authority is implemented through Appellate Rule 7(B), which provides that the "Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." It is on this basis alone that a criminal defendant may now challenge his or her sentence where the trial court has entered a sentencing statement35
that includes a reasonably detailed recitation of its reasons for imposing a particular sentence that is supported by the record, and the reasons are not improper as a matter of law, but has imposed a sentence with which the defendant takes issue.(Id.)
[¶71] The principal role of appellate sentencing review should be to attempt to leaven the outliers ... but not achieve a perceived "correct" result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). A defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Indiana's flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented, and the trial court's judgment "should receive considerable deference." Id. at 1222. Whether we regard a sentence as inappropriate at the end of the day turns on "our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other facts that come to light in a given case." Id. at 1224. The question is not whether another sentence is more appropriate, but rather whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind.Ct.App. 2008). Deference to the trial court "prevail[s] unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character)." Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). 36
[¶72] Taylor does not point to evidence of his good character. With regard to the nature of the offense, Taylor observes that the victim was not physically harmed. That said, Taylor was not charged with a crime involving an element of physical harm to the victim. Taylor presents no "compelling evidence portraying in a positive light the nature of the offense" or his character. Stephenson, 29 N.E.3d. at 122. Accordingly, our deference to the trial court prevails and we decline to revise Taylor's sentence.
Conclusion
[¶73] Taylor has not demonstrated an abuse of the trial court's discretion in its evidentiary rulings. The admission of DNA test results did not shift to Taylor the burden to prove his innocence. The prosecutor did not commit misconduct amounting to fundamental error in delivering closing arguments. Taylor has shown no Brady violation. Taylor was not denied the effective assistance of counsel. Sufficient evidence supports Taylor's conviction for Kidnapping. There is no fatal variance between the charging information and the proof adduced at trial. Taylor waived his constitutional argument. He has shown no violation of his Sixth Amendment rights at sentencing. Taylor has failed to persuade us that his sentence is an abuse of the trial court's discretion or inappropriate.
[¶74] Affirmed.
Bradford, C.J., and Altice, J., concur. 37