Edvin G. Delcid v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 23 2020, 8:22 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Aaron J. Stoll Curtis T. Hill, Jr. The Law Office of Aaron J. Stoll, LLC Attorney General of Indiana Fort Wayne, Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Edvin G. Delcid, October 23, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-586 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D05-1807-F4-59

Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 20A-CR-586 | October 23, 2020 Page 1 of 10

Case Summary [1] Following a jury trial, Edvin G. Delcid (“Delcid”) 1 was convicted of Level 4

felony Child Molesting.2 Delcid now appeals, challenging the trial court’s

restriction upon his counsel that prevented counsel from referring to any burden

of proof other than proof beyond a reasonable doubt. We affirm.

Facts and Procedural History [2] In January 2020, Delcid was brought to trial on a charge of Level 4 felony

Child Molesting. Before trial, the State filed a motion in limine seeking, in

pertinent part, to prevent Delcid from “discussing burdens of proof in civil

matters because civil burdens of proof have no relevance in criminal matters,

and such discussions pose a danger of confusing and misleading the jury.”

Appellant’s App. Vol. 2 at 52. In support of its motion, the State orally noted

that it was not going to be “super nit-picky” but was “asking that this not be

belabored, that [defense counsel] not spend the entire jury selection or a huge

part of it just going through different burdens of proof and standing at different

places . . . as to confuse the jury, since the burden of proof is, obviously, beyond

a reasonable doubt.” Tr. Vol. 2. at 7. Delcid’s counsel objected:

Judge, as I did, I think, previously, I object to that, although I do remember the Court’s guidance on how I am to follow that; so if

1 Although the record contains instances of DelCid, we use the capitalization used in the Brief of Appellant. 2 Ind. Code § 35-42-4-3(b).

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the Court does – whether the Court grants it or not, I am aware of the restrictions you would have to be under as far as arguing different standards of proof and I will follow that.

Id. The trial court then asked: “So that is an objection?” Id. Delcid’s counsel

responded: “It is an objection, yes.” Id. The trial court then granted the State’s

motion in limine, noting that “the burden of proof is beyond a reasonable

doubt; and while the Court does briefly explain the difference in jury

instructions to the jury, anything past that would not be permitted.” Id. at 7-8. [3] Voir dire ensued, during which Delcid’s counsel questioned potential jurors

about the standard of proof beyond a reasonable doubt. Later, the jurors were

given jury instructions regarding proof beyond a reasonable doubt. Moreover,

the jury instructions included an explanation that the burden of proof in a

criminal case is higher than the burden of proof in a civil case, with a civil case

requiring proof “that a fact is more likely true than not true.” Tr. Vol. 3 at 84. [4] At trial, there was evidence that a family gathering was held at Delcid’s house

on Christmas Eve of 2017. M.H.—the ten-year-old daughter of Delcid’s then-

girlfriend—opened gifts at midnight, then went to bed. M.H. testified that she

awoke and saw Delcid on the bed next to her. Delcid was rubbing her vagina

over her clothing. While Delcid did so, he kept telling M.H. to go back to

sleep. Delcid also attempted to slip his fingers underneath M.H.’s pants. [5] The jury found Delcid guilty. Following a sentencing hearing, the trial court

sentenced Delcid to six years in the Indiana Department of Correction.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-586 | October 23, 2020 Page 3 of 10 [6] Delcid now appeals.

Discussion and Decision [7] Delcid challenges the court’s decision to grant the State’s motion and prevent

his counsel from referring to civil burdens of proof. According to Delcid, the

motion “had little to do with preventing juror confusion and more to do with

preventing an effective technique”—i.e., framing the burden of proof beyond a

reasonable doubt by comparison to lesser civil burdens. Br. of Appellant at 18. [8] As an initial matter, the State argues that Delcid waived any challenge because

Delcid failed to lodge a specific enough objection and failed to make an offer of

proof. However, regardless of whether Delcid waived the instant challenge, we

will proceed assuming arguendo that the issue before us is properly preserved. [9] Generally, we review a ruling on a motion in limine for an abuse of discretion.

Ryan v. State, 431 N.E.2d 115, 116 (Ind. 1982) (citing O’Conner v. State, 399

N.E.2d 364 (Ind. 1980), overruled on other grounds). An abuse of discretion

occurs when the decision is clearly against the logic and effect of the facts and

circumstances. Bennett v. State, 119 N.E.3d 1057, 1058 (Ind. 2019). Moreover,

because the ruling on the instant motion had the effect of regulating both voir

dire and final argument, we separately consider the ruling in those contexts.3

3 At times, Delcid argues that the motion should not be characterized as a motion in limine “because it was not based on the Court’s inherent power to admit or reject evidence.” Br. of Appellant at 7. It appears that Delcid argues as much to avoid waiver because he failed to make an offer of proof. Because we address the

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Voir Dire [10] “The function and purpose of the voir dire examination is to ascertain whether

or not the jurors can render a fair and impartial verdict in accord with the law

and the evidence.” Foster v. State, 436 N.E.2d 783, 786 (Ind. 1982). “The

inquiry should center upon eliciting information from the prospective jurors in

order to uncover a basis for a challenge for cause.” Id. Furthermore, Trial Rule

47(D) applies to voir dire, specifying that a court “may prohibit the parties and

their attorneys from examination which is repetitive, argumentative, or

otherwise improper but shall permit reasonable inquiry of the panel and

individual prospective jurors.” See Ind. Crim. Rule 21 (providing that trial rules

apply where they do not conflict with criminal rules). Moreover, our Supreme

Court has held that “[a] trial judge has broad discretion to regulate the form and

substance of a voir dire examination” and that, “[t]o establish [reversible] error,

an abuse of discretion must be shown to have prejudiced a defendant such that

a fair trial was impossible.” Grimes v. State, 450 N.E.2d 512, 517 (Ind. 1983). [11] Delcid argues that, even though a criminal case involves a burden of proof

beyond a reasonable doubt, giving comparative context to that burden is part of

a reasonable voir dire examination. Delcid also argues that there was minimal

risk of confusion because the trial court provided a jury instruction regarding

the standard used in civil cases. We note that the Indiana Supreme Court has

merits of the case and because Delcid is not arguing that a different standard of review would apply to our consideration of the merits, we ultimately need not decide the proper characterization of the State’s motion.

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endorsed jury instructions that refer to “the different standards of proof used in

civil proceedings.” Winegeart v. State, 665 N.E.2d 893, 902 n.2 (Ind. 1996).

Critically, however, the purpose behind that type of jury instruction is to “help

dispel inapplicable concepts that jurors may have obtained from national

television or popular novels” or prior jury service on a civil jury. Id. A voir dire

examination that focuses on inapplicable concepts could undermine the goal of

dispelling those inapplicable concepts. Ultimately, because a trial court has

broad discretion to prevent “improper” lines of inquiry, Ind. Trial Rule 47(D),

we conclude that the trial court did not abuse its discretion by regulating voir

dire to prevent potentially confusing references to inapplicable burdens of proof. [12] Regardless, even assuming arguendo that the trial court abused its discretion by

prohibiting the line of inquiry, defense counsel ably questioned prospective

jurors about the burden of proof beyond a reasonable doubt. Indeed, counsel

asked the prospective jurors about why the United States requires such a

stringent burden. Counsel also asked the prospective jurors about their ability

to fairly apply the burden. Although counsel was prevented from comparing

the applicable burden to any civil burden, we cannot say that a fair trial was

impossible due to the requirement that counsel focus only on the pertinent

burden of proof. Thus, even assuming arguendo that the trial court improperly

limited the scope of voir dire, Delcid has not demonstrated reversible error.

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Final Argument [13] The “proper scope of final argument is within the trial court’s sound

discretion.” Nelson v. State, 792 N.E.2d 588, 591 (Ind. Ct. App. 2003), trans.

denied. Furthermore, “any abuse of discretion in restricting the scope of closing

argument is subject to harmless error analysis.” Id. Generally, error is deemed

harmless where “its probable impact . . . is sufficiently minor so as not to affect

the substantial rights of the parties.” Ind. Appellate Rule 66(A). [14] As to final argument, Delcid contends that counsel should be able to “belabor[]

the point that beyond a reasonable doubt is a higher burden than probable

cause, a higher burden than preponderance of the evidence, a higher burden

than clear and convincing evidence.” Br. of Appellant at 18. Delcid questions

the State’s motive in seeking the instant restriction. He also argues that any risk

of confusion was minimal because a defendant “is the last person who would

want the jury to become confused and use the wrong standard of proof as the

other options are all lesser burdens for the State.” Id. at 16. Yet, irrespective of

defense counsel’s approach, any argument regarding inapplicable burdens poses

some risk of confusing the jury—emphasizing concepts that jury instructions

seek to dispel. See Winegeart, 665 N.E.2d at 902 n.2. We therefore cannot say

that the trial court abused its discretion by limiting argument in this respect. [15] Delcid also contends that limiting argument was tantamount to violating his

rights under the Sixth Amendment to the U.S. Constitution, rendering the trial

unfair by impeding the adversarial process. Delcid cites caselaw concerning the

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effective assistance of counsel. Delcid also argues that a “blanket prohibition”

against discussing civil standards is “unnecessary and unfair” and that concerns

about misstating the law should be addressed through an objection. Id. at 19. [16] The Sixth Amendment “requires the assistance of counsel at all critical stages of

proceedings.” Hernandez v. State, 761 N.E.2d 845, 849 (Ind. 2002) (citing United

States v. Cronic, 466 U.S. 648, 659 (1984)). Moreover, “[t]he right to the

effective assistance of counsel is . . . the right of the accused to require the

prosecution’s case to survive the crucible of meaningful adversarial testing.”

Cronic, 466 U.S. at 656. “[I]f the process loses its character as a confrontation

between adversaries, the constitutional guarantee is violated.” Id. at 656-57.

Furthermore, the “[a]ctual or constructive denial of the assistance of counsel

altogether is legally presumed to result in prejudice.” Strickland v. Washington,

466 U.S. 668, 692 (1984). However, “denial of this constitutional right is

‘subject to a harmless error analysis unless the deprivation, by its very nature,

cannot be harmless.’” Hernandez, 761 N.E.2d at 849 (quoting Rushen v. Spain,

464 U.S. 114, 117 n.2 (1983)). Where the denial of a constitutional right is

reviewable for harmless error, the “conviction should not be set aside if the

reviewing court may confidently say, on the whole record, that the

constitutional error was harmless beyond a reasonable doubt.” Delaware v. Van

Arsdall, 475 U.S. 673, 681 (1986). “Put another way, the question is, ‘Is it clear

beyond a reasonable doubt that . . . [the] jury would have found the defendant

guilty absent the error?’” Zanders v. State, 118 N.E.3d 736, 743 (Ind. 2019)

(alterations in original) (quoting Neder v. United States, 527 U.S. 1, 18 (1999)).

Court of Appeals of Indiana | Memorandum Decision 20A-CR-586 | October 23, 2020 Page 8 of 10 [17] Delcid complains that his counsel could not illustrate the burden of proof

beyond a reasonable doubt by comparing the burden to lesser, inapplicable

burdens. Although defense counsel was prohibited from explaining reasonable

doubt by focusing on what it was not—i.e. that it differs from a lesser burden in

a civil case—there is no dispute that defense counsel was otherwise free to

explain the standard. We discern no way in which requiring counsel to focus

only on the applicable burden of proof undermined the adversarial process or

was tantamount to the denial of the effective assistance of counsel. Therefore,

there was no violation of the Sixth Amendment, much less a violation creating

a presumption of prejudice. Furthermore, even if there was constitutional error,

the error would be subject to harmless-error review. See id. Reviewing for

harmless error, we ultimately discern no prejudice from the ruling. Notably,

when counsel objected, counsel stated that “whether the Court grants [the

motion] or not,” counsel was “aware of the restrictions [the trial court] would

have to be under as far as arguing different standards of proof and [would]

follow that.” Tr. Vol. 2 at 7. Thus, it seems that counsel would have taken the

same approach to final argument irrespective of whether the trial court granted

the motion. In any case, although defense counsel was prevented from using

comparative techniques, the jury was nevertheless instructed that the burden

was greater than the burden in a civil case—and we presume a jury follows the

instructions. Weisheit v. State, 26 N.E.3d 3, 20 (Ind. 2015). For the foregoing

reasons, we conclude that any error was harmless beyond a reasonable doubt.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-586 | October 23, 2020 Page 9 of 10 [18] All in all, Delcid has not identified error in the context of voir dire and we

discern no error—constitutional or otherwise—in the context of final argument.

Thus, we conclude that the court did not abuse its discretion in granting the

motion in limine. However, even if the court erred, the error is not reversible. [19] Affirmed.

Vaidik, J., and Weissmann, J., concur.

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