The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
FILED
court except for the purpose of establishing Dec 19 2017, 9:50 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Phillips Curtis T. Hill, Jr.
Boonville, Indiana Attorney General of Indiana
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Edward John Meiggs, December 19, 2017
Appellant-Defendant, Court of Appeals Case No.
82A01-1706-CR-1261
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Robert J. Pigman,
Appellee-Plaintiff Judge
Trial Court Cause No.
82D03-1505-F3-2607
Baker, Judge.
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[1] Edward Meiggs appeals his conviction for Level 3 Felony Rape. 1 He argues
that the trial court erred by excluding certain evidence, providing a
supplemental jury instruction, and failing to provide a sufficient sentencing
statement.2 He also contends that we should reverse based on prosecutorial
misconduct. Finding no error or prosecutorial misconduct, we affirm.
Facts
[2] On May 6, 2015, A.W. went to Evansville Metaphysics for an hour-long
massage. Shortly after she arrived, Meiggs emerged and directed A.W. to a
small room where the massage would take place. In preparation for the
massage, A.W. removed all of her clothes except for her underwear.
[3] At the end of the hour, Meiggs asked A.W. if she wanted him to continue
because his next client would not arrive for thirty minutes. She agreed, and he
began massaging her lower legs. Meiggs touched her vulva over her underwear,
then pulled her underwear to the side and inserted his fingers into her vagina.
A.W. said “no” and tightened her legs, pushing them together. Tr. Vol. I p. 50.
He ignored her, presumably pulled apart her tightened legs, and continued with
the assault. He again inserted his fingers into her vagina, and she again said no.
Still ignoring her, he placed his tongue on her anus and then inserted his tongue
into her vagina. At that point, “she was afraid to resist anymore.” Id. at 43.
1
Ind. Code § 35-42-4-1(a)(1).
2
Meiggs also argues that the jury’s verdicts were inconsistent. But our Supreme Court has clearly stated that
claims of inconsistent verdicts are not reviewable on appeal. Beattie v. State, 924 N.E.2d 643, 649 (Ind. 2010).
Therefore, we will not address this argument.
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A.W. did not fight back “[b]ecause [her] face was down the whole time; [she]
didn’t know if he had a weapon; . . . [she] knew that [she] couldn’t win; [she]
knew that there was nothing [she] could do.” Id. at 59. This behavior
continued for ten to fifteen minutes; afterwards, Meiggs whispered in A.W.’s
ear “that was nice thank you,” and A.W. left the office. Id. at 60.
[4] A.W. was “shocked” and “shaken” after the incident and went to a friend’s
home. Id. at 94. A.W. told her friend what had happened and called the
police. The responding officer took A.W. to a local hospital for a rape kit
examination. The Sexual Assault Nurse Examiner collected internal and
external genital swabs and collected A.W.’s clothing and underwear. The
external genital swab contained male DNA; Meiggs could not be excluded as a
contributor to that sample. Tr. Vol. II p. 5. Testing was later performed on
A.W.’s clothing; Meiggs’s DNA was not on the clothing but other unknown
male DNA was.
[5] On May 8, 2015, the State charged Meiggs with three counts of Level 3 felony
rape. Meiggs’s jury trial began on April 17, 2017. At trial, counsel for Meiggs
acknowledged that Meiggs had given A.W. a massage but denied that Meiggs
had in any way touched her beneath her underwear, emphasizing to the jury the
lack of Meiggs’s DNA on A.W.’s clothing and internal genital swabs.
[6] During the trial, the State intended to introduce into evidence the certificate of
lab analysis regarding the DNA testing on A.W.’s clothing, but sought to redact
all information regarding the unknown male DNA. The trial court excluded
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the certificate of lab analysis from evidence altogether but permitted the lab
analyst to testify that Meiggs’s DNA was not found on A.W.’s clothing.
Meiggs wanted to cross-examine the analyst about the unknown male DNA
found on the clothing, but the trial court prohibited that line of questioning,
finding it irrelevant.
[7] During closing argument, Meiggs objected to statements made by the
prosecutor, arguing that the prosecutor had misstated the testimony of certain
witnesses. The trial court overruled the objection and permitted closing
arguments to proceed.
[8] After the jury began deliberating, the jury sent the following question to the trial
court: “Does saliva on [A.W.’s] vagina indicate that there was penetration of
[A.W.’s] vagina with his tongue?” Tr. Vol. II p. 54. The trial court responded
with a note to the jurors asking whether the legal definition of penetration—
which had been omitted from the final jury instructions—would assist them.
The jury said that it would, and also sent the trial court a second question:
“Are the charges solely based on ‘penetration’ or the entire definition of [Jury]
Instruction #7[?]” Tr. Ex. p. 16.
[9] Over Meiggs’s objection, the trial court provided the jury with this definition of
penetration: “The slightest penetration of the sex organ, external genitalia, or
vulva may be sufficient to support” a conviction. Id. at 17. Also over Meiggs’s
objection, the trial court declined to answer the second question, concluding
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that “they’re confused about what penetration was” and that the definition of
penetration would suffice. Tr. Vol. II p. 62.
[10] Ultimately, the jury found Meiggs guilty of one count of rape and not guilty of
the other two counts of rape. On May 10, 2017, the trial court sentenced
Meiggs to a nine-year term of imprisonment. Meiggs now appeals.
Discussion and Decision 3
I. Exclusion of Evidence
[11] Meiggs first argues that the trial court erroneously excluded evidence—
including the certificate of lab analysis and testimony of the expert witnesses—
related to the unknown male DNA found on A.W.’s clothing. The admission
and exclusion of evidence falls within the trial court’s sound discretion, and we
will reverse only if the decision is clearly against the logic and effect of the facts
and circumstances before it. Johnson v. State, 6 N.E.3d 491, 498 (Ind. Ct. App.
2014).
[12] While Meiggs highlights the Rape Shield Rule in his briefs, it is apparent that
the trial court did not exclude this evidence on that basis. Instead, the trial
court excluded this evidence because it was irrelevant. Tr. p. 127. Indiana
Evidence Rule 401 provides that evidence is relevant if it (1) has any tendency
3
Meiggs does not argue that there is insufficient evidence supporting the “force or imminent threat of force”
element of rape, I.C. § 35-42-4-1(a)(1), presumably because his defense at trial was that he did not commit the
act at all.
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to make a fact more or less probable than it would be without the evidence; and
(2) the fact is of consequence in determining the action.
[13] Here, the jury heard evidence that Meiggs’s DNA was not found on the internal
genital swabs or A.W.’s clothing. Indeed, Meiggs’s counsel repeatedly
emphasized this evidence throughout the trial, as it supported Meiggs’s defense
that, while he had given A.W. a massage, he had not touched her beneath her
underwear. Whether there was unknown male DNA on A.W.’s clothing is
wholly irrelevant to the fact that Meiggs’s was not. This unknown DNA did
not make it any more or less probable that Meiggs had committed the acts with
which he was charged and was not of consequence in determining the action.4
Consequently, the trial court did not err by finding that this evidence was
irrelevant and inadmissible.
II. Prosecutorial Misconduct
[14] Next, Meiggs argues that his conviction should be reversed based on
prosecutorial misconduct. Our Supreme Court has explained that “[w]e review
a prosecutorial misconduct claim using a two-step analysis. First, there must be
misconduct; and second, the misconduct must have placed the defendant in a
position of grave peril.” State v. Taylor, 49 N.E.3d 1019, 1029 (Ind. 2016). A
prosecutor must confine closing argument to comments based upon the
evidence in the record, though he may argue both law and facts and propound
4
Meiggs spends much time arguing about his constitutional right to confront and cross-examine witnesses.
He has no constitutional right, however, to cross-examine witnesses about matters that are irrelevant to his
guilt or innocence.
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conclusions based upon his analysis of the evidence. Lambert v. State, 743
N.E.2d 719, 734 (Ind. 2001).
[15] Here, Meiggs argues that the prosecutor committed misconduct by misstating
the evidence in the record in the following portions of closing argument:
State: . . . If you look back at the DNA evidence the
analyst said some of these results were inconclusive,
a determination couldn’t be made, and some were
conclusive. Where they found none of his DNA on
some of those items, but it’s important to go back on
the external genital swabs. . . . Nicole Hoffman, the
first DNA technician, when she talked about the
genital swab on the external area she said that
amylase was detected.
Defense: Judge I’m going to object . . . .
***
Court: . . . The jury will decide whether that was testified
to or not. Okay, go on.
State: Amylase is a component of saliva. Mr. Phillips said
a lot of things that I didn’t hear an explanation of
how his DNA while giving a massage while never
having touched her in any . . . inappropriate
manner. Some of you have gone to massages, some
of you have gotten them, it doesn’t happen rubbing
the quads. It doesn’t happen rubbing the butt of
which would be inappropriate anyway. How does
that DNA get on there? How does [it] end up on
her external genitalia? How does saliva end up
there? How does amylase end up getting detected?
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And so, we can imagine, and we can conjure . . . or
we can look at the simple explanation that was
made from the beginning. . . .
Tr. Vol. II p. 47-48. Meiggs argues that the prosecutor’s statements regarding
the presence of amylase on the external swab and the implication that Meiggs’s
saliva was on her external genitalia did not accurately reflect the evidence in the
record.
[16] The record reveals that Nicole Hoffman testified that “amylase was detected”
on the external genital swabs and that amylase is a component of saliva. Tr.
Vol. I p. 233. She explained that male DNA was found on these swabs but that
the technology offered in her lab was not sophisticated enough to do further
analysis on that DNA; consequently, those samples were sent to a laboratory in
Indianapolis. Nicole Keeling, who works for the laboratory in Indianapolis,
then testified that she tested the external genital swabs and concluded that
Meiggs could not be excluded as a contributor to that DNA sample. Id. at 5.
[17] Therefore, the record supports the prosecutor’s statement that amylase was
found in the external genital swabs. While the prosecutor could have been
more accurate than to state that Meiggs’s DNA was definitively present in the
external genital swabs, the expert testified that Meiggs cannot be excluded as a
contributor. The prosecutor was within his purview to point out that there was
amylase on the external genital swabs, that amylase is a component of saliva,
and that Meiggs cannot be excluded as a DNA contributor; and then to
question how Meiggs’s saliva ended up on A.W.’s external genitalia if it was
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truly a normal massage. In our view, this amounts to permissible propounding
of conclusions based on the evidence. In other words, we find no prosecutorial
misconduct.
III. Jury Instructions
[18] Next, Meiggs argues that the trial court erred by providing a new instruction to
the jury defining the term “penetration” rather than rereading all of the
instructions to the jurors. He does not argue that the instruction regarding
penetration was an incorrect statement of the law, instead contending that the
procedure employed by the trial court was problematic.
[19] The generally accepted procedure in answering a jury’s question on a matter of
law is to reread all instructions to avoid emphasizing any particular point and
not to qualify, modify, or explain the instructions in any way. Riley v. State, 717
N.E.2d 489, 493 (Ind. 1999). Our Supreme Court has created an explicit
exception to this general practice, however, when a trial court is faced with an
omitted and necessary instruction. Martin v. State, 760 N.E.2d 597, 601 (Ind.
2002). In other words, when the jury question relates to a gap in the final jury
instructions, “‘a response other than rereading from the body of final
instructions is permissible.’” Id. (quoting Jenkins v. State, 424 N.E.2d 1002,
1003 (Ind. 1981)).
[20] Here, the trial court was faced with precisely such a gap. The final jury
instructions did not define the term “penetration,” which is a key term that the
jurors were required to consider. The trial court acted within its discretion to
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fill this gap by providing an instruction defining the term and to decline to
answer the other question posed by the jury. In accordance with Martin and
Jenkins, the trial court was not required to reread all instructions and did not err
by declining to do so.
IV. Sentencing
[21] Finally, Meiggs argues that the trial court erred by finding aggravating and
mitigating circumstances but failing to identify them. We disagree, as the trial
court plainly described all aggravators and mitigators at the sentencing hearing:
The Court . . . now sentences the defendant to the Indiana
Department of Correction[] for a period of nine years . . . which
is the advisory or standard sentence for a Level 3 felony, and
orders that sentence executed. There are mitigating
circumstances, some of which have been mentioned here; his
lack of a prior record and his service in the military. The Court
finds the nature and circumstances of the . . . offense . . . is also
an aggravating circumstance that offsets those. So the Court
determines the standard sentence is appropriate.
Tr. Vol. II p. 80. As the trial court did, in fact, identify the mitigators and
aggravators, we find no error in this regard.
[22] The judgment of the trial court is affirmed.
Riley, J., and Brown, J., concur.
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