Opinion
23A-CR-1218
02-02-2024
Troy Andrew Cooksey, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Bruce W. Graham Lafayette, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Caroline G. Templeton Supervising Deputy Attorney General Indianapolis, Indiana
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Tippecanoe Circuit Court The Honorable Sean M. Persin, Judge Trial Court Cause No. 79C01-2206-F1-7
ATTORNEY FOR APPELLANT Bruce W. Graham Lafayette, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Caroline G. Templeton Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
ALTICE, CHIEF JUDGE.
Case Summary
[¶ 1] Following a bench trial, Troy Cooksey was convicted of two counts of Level 1 felony child molesting. On appeal, he presents the following restated issues:
1. Did Cooksey personally communicate to the trial court the waiver of his right to a jury trial?
2. Are Cooksey's convictions supported by sufficient evidence?
[¶ 2] We affirm.
Facts &Procedural History
[¶ 3] In May 2020, E.S., who was thirteen years old at the time, spent a weekend alone with Cooksey, her step uncle. Cooksey picked up E.S. on Friday, May 15, and took her shopping before heading to his home, where they remained until Sunday, May 17, when he returned E.S. to her home.
[¶ 4] That Saturday evening, while the two were on the couch watching television, Cooksey began touching her chest and, in E.S.'s words, "down there." Transcript at 19. E.S. clarified at trial that down there is the part of her body she uses "[t]o pee" and "where [she] use[s] the bathroom." Id. at 19, 20. She described that Cooksey was rubbing and moving his hand around down there underneath her clothing and that the touching felt "[u]ncomfortable." Id. at 21. When asked if she could be more specific about where he was touching her down there - whether it was "on the inside, the outside, or something else" -E.S. testified, "It was both inside and out." Id.
[¶ 5] After Cooksey stopped touching her, E.S. went to the bathroom and then to bed in a separate bedroom from his. Although she had her cell phone with her that night, E.S. did not call her parents or anyone else because she was "scared of what would happen" if she did. Id. at 32.
[¶ 6] The next day, Cooksey and E.S. ate together and then went into the living room to watch television. This time E.S. initially sat in a chair away from Cooksey, who was on the couch. When Cooksey asked why she was not sitting with him, E.S. moved over to the couch. Eventually, Cooksey began touching her again underneath her clothing - at first, "just with his hand . . . [d]own there." Id. at 23. He was moving his hand around "[i]n the same spot that he had the day before." Id. Cooksey then removed E.S.'s pants and underwear and proceeded to place his mouth on "[t]he same spot as his hand" - "where you go to the bathroom." Id. at 24. When asked at trial whether Cooksey's mouth touched her down there "on the inside, the outside or something else," E.S. responded, "Outside." Id. at 25.
[¶ 7] Once he stopped touching her, Cooksey asked E.S. "if it was ok if he relieved himself." Id. He then went into his bedroom, while E.S. put her clothing back on. Before taking E.S. home later that day, Cooksey told her not to tell anyone what happened.
[¶ 8] E.S. went straight to her bedroom upon her return home, too scared to immediately disclose what had happened. E.S.'s father (Father) became concerned by her demeanor, and her stepmother (Stepmother) noted that E.S. seemed withdrawn. When Stepmother hugged her, E.S. "started shaking" and had a "just blank" demeanor. Id. at 34, 35. That night, E.S. disclosed to Stepmother and Father what had happened at Cooksey's home, and they called the police.
[¶ 9] E.S. participated in a child forensic interview that began around 11:00 p.m., during which she became "clearly upset" and was crying. Id. at 41. The interview was stopped after midnight and rescheduled once it appeared that E.S. was no longer comfortable giving additional details at that time.
[¶ 10] Thereafter, E.S. was taken to the hospital where a sexual assault nurse examiner (SANE) examined her. Among other things, the SANE collected swabs of E.S.'s external and internal genitalia that were later analyzed by a forensic DNA analyst with the Indiana State Police.
[¶ 11] DNA analysis of the profile from the external genital swabs established "very strong support for the inclusion of Troy Cooksey." Transcript at 53. Although traditional DNA analysis could not be performed from the internal genital swabs, due to an insufficient amount of male DNA as compared to female DNA, the analyst was able to perform YSTR analysis of the male specific DNA, which provided "moderate support for the inclusion of Troy Cooksey." Id. at 56. Specifically, the YSTR profile came from "a single male individual" and was "3,897 times more likely if it originated from Troy Cooksey or any of his male paternal relatives than if it originated from an unknown, male individual." Exhibits at 8.
The DNA profile from the external genital swabs was "at least 1 trillion times more likely if it originated from [E.S.] and Troy Cooksey than if it originated from [E.S.] and an unknown, unrelated individual." Exhibits at 5.
[¶ 12] More than two years after the events in question, the State charged Cooksey with two counts of Level 1 felony child molesting. The charges were later amended to correct the dates of the alleged offenses to May 16, 2020, for Count I and May 17, 2020, for Count II.
[¶ 13] The case was originally set for a jury trial but at the final pretrial hearing on November 18, 2022, Cooksey's attorney filed a Waiver of Trial by Jury and Motion to set for Bench Trial, which had been signed by both counsel and Cooksey. The matter was then reset for a bench trial without objection from the State. Cooksey was not present at this pretrial hearing.
[¶ 14] At the conclusion of the bench trial on March 21, 2023, the trial court found Cooksey guilty as charged. The trial court later sentenced Cooksey to concurrent terms of thirty-five years in prison.
[¶ 15] Cooksey now appeals. Additional information will be provided below as needed.
Discussion &Decision
1. Cooksey Personally Communicated Waiver of his Indiana Constitutional Jury Trial Right Through his Signed Written Waiver
[¶ 16] "The Indiana Constitution guarantees the right to jury trial, which may be waived by one, and only one, person - the defendant." Horton v. State, 51 N.E.3d 1154, 1155 (Ind. 2016). Our Supreme Court has made clear that in felony prosecutions a defendant's waiver of this right must be communicated personally by the defendant (that is, not exclusively by defense counsel), and the defendant's personal communication must be reflected in the record. Id. at 1158 (observing the longstanding rule in Indiana that "waiver is valid only if communicated personally by the defendant") (emphasis in original); Kellems v. State, 849 N.E.2d 1110, 1113 (Ind. 2006) ("The record reflection must be direct and not merely implied. It must show the personal communication of the defendant to the court that he chooses to relinquish the right.") (quoting Doughty v. State, 470 N.E.2d 69, 70 (Ind. 1984)). Equally clear is that a personal waiver may be communicated "either in a writing signed by the defendant or in the form of a colloquy in open court between the defendant and judge." Kellems, 849 N.E.2d at 1112-13 (emphasis supplied).
[¶ 17] Here, a written waiver signed by both Cooksey and his attorney was filed with the trial court during a pretrial conference. This waiver stated that Cooksey had been "fully advised by the Court and by counsel of his constitutional right to a trial by jury[,]" that no person had made any promises or threats to secure his waiver, and that he was "freely, knowingly, and voluntarily" executing the waiver of his right to a jury trial. Appellant's Appendix Vol. II at 55, 56.
[¶ 18] Cooksey contends that even with his personally signed waiver, "the record is insufficient to sustain the jury trial waiver" because the trial court never asked him if he understood that he was waiving his constitutional right to a jury trial. Appellant's Brief at 12. In effect, Cooksey argues that a written waiver must be accompanied by a colloquy in open court between the defendant and the judge regarding the waiver. On the contrary, "[a] written waiver executed by the defendant is adequate"; "there is no requirement that a trial court orally advise a defendant of his right to a jury trial and the consequences of waiving that right." Coleman v. State, 694 N.E.2d 269, 278 (Ind. 1998); see also Hutchins v. State, 493 N.E.2d 444, 445 (Ind. 1986) (rejecting appellant's argument that his written waiver was defective because there was no on-the-record hearing first and observing that "even though it may be preferable for the trial court, by way of an on-the-record hearing, to advise the defendant of his right to trial by jury and the consequences of waiving that right, such is not required"). Cooksey's argument that the trial court failed to secure a personal waiver from him is without merit.
Cooksey suggests, incorrectly, that the Supreme Court in Kellems "specifically prohibited" the practice of accepting a written waiver without the judge having a personal discussion with the defendant regarding the waiver. Appellant's Reply Brief at 4. Kellems dealt exclusively with an oral waiver, not a written waiver, that was articulated only by the defendant's attorney, not personally by the defendant. 849 N.E.2d at 1112-14 (holding that defendant could not be bound by an oral waiver articulated by defense counsel even though defendant had been informed of his right to a jury trial, had personally acknowledged that he understood the right, and later stood by in silence while counsel requested a bench trial).
2. Sufficient Evidence Supports the Convictions
[¶ 19] Our standard of review is well-settled:
When reviewing the sufficiency of evidence supporting a conviction, we neither reweigh the evidence nor assess the credibility of witnesses. Fix v. State, 186 N.E.3d 1134, 1138 (Ind. 2022). "When there are conflicts in the evidence, the jury must resolve them." Young v. State, 198 N.E.3d 1172, 1176 (Ind. 2022). Thus, on appeal, we consider only the probative evidence and the reasonable inferences supporting the conviction and will affirm "unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." Fix, 186 N.E.3d at 1138 (quoting Jackson v. State, 50 N.E.3d 767, 770 (Ind. 2016)). Stated differently, our task is to "decide whether the facts favorable to the verdict represent substantial evidence probative of the elements of the offenses." Young, 198 N.E.3d at 1176 (quoting Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007)).Sorgdrager v. State, 208 N.E.3d 646, 650 (Ind.Ct.App. 2023), trans. denied.
[¶ 20] In this case, Cooksey was convicted of two counts of child molesting based on him knowingly or intentionally performing other sexual conduct with E.S. on two separate days. Ind. Code § 35-31.5-2-221.5 defines "other sexual conduct" as "an act involving: (1) a sex organ of one (1) person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object." Regarding the latter, our Supreme Court has held that "proof of the slightest penetration of the sex organ, including penetration of the external genitalia, is sufficient to demonstrate a person performed other sexual misconduct with a child." Boggs v. State, 104 N.E.3d 1287, 1289 (Ind. 2018). And it is not necessary, nor particularly desirable, for a victim of child molestation to provide a detailed anatomical description of the penetration. Wisneskey v. State, 736 N.E.2d 763, 764 (Ind.Ct.App. 2000) (citing Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996)).
[¶ 21] Cooksey argues that neither of his convictions was supported by sufficient evidence of other sexual conduct. More specifically, he contends that E.S.'s testimony was too vague regarding where he touched her and that the prosecutor failed to utilize an anatomical chart to assist her in describing where she had been touched. Thus, according to Cooksey, the trier of fact was left to guess whether he penetrated her sex organ with his finger and placed his mouth on her sex organ.
[¶ 22] With respect to Count I, E.S. testified that on May 16, 2020, Cooksey touched her with his hand underneath her clothing in the area "down there" that she uses "[t]o pee." Transcript at 19. He was moving his hand around and rubbing her, touching her down there "both inside and out." Id. at 21. The YSTR analysis later confirmed the presence of male DNA on swabs collected by the SANE from E.S.'s internal genitalia with it being 3,897 times more likely that this male DNA originated from Cooksey (or one of his male paternal relatives) than from an unknown, male individual.
[¶ 23] Turning to Count II, E.S. testified that on May 17 Cooksey touched her with his hand "in the same spot that he had the day before." Id. at 23. She described this spot on her body as "where you go to the bathroom." Id. at 24. Cooksey then removed her pants and underwear and placed his mouth on "the same spot as his hand." Id. Again, E.S. described this spot as: "Where you used the bathroom." Id. She clarified that he touched her with his mouth down there on the "[o]utside." Id. at 25. Later DNA analysis from swabs taken by the SANE of E.S.'s external genitalia provided "very strong support" for the inclusion of Cooksey. Id. at 53.
[¶ 24] Despite E.S.'s failure to use anatomically precise terminology, her testimony along with the corroborating DNA evidence sufficiently established both counts of child molesting. That is, a reasonable trier of fact could conclude from the probative evidence and reasonable inferences that (1) E.S. was referring to her female sex organ when she testified that Cooksey touched her down there on the inside and outside with his hand and on the outside with his mouth and (2) Cooksey's finger(s) penetrated her sex organ.
[¶ 25] Judgment affirmed.
Weissmann, J. and Kenworthy, J., concur.