Ryan v. State

• Decision Date: 31 July 2013
• Docket Number: No. 49A02–1211–CR–932.,49A02–1211–CR–932.
• Citation: 992 N.E.2d 776
• Parties: Bruce RYAN, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

992 N.E.2d 776

Bruce RYAN, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1211–CR–932.

Court of Appeals of Indiana.

July 31, 2013.

Deborah Markisohn, Marion County Public Defender Agency, Appellate Division, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Andrew Falk, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

Bruce Ryan appeals his two convictions for class C felony sexual misconduct with a minor. He argues that the prosecutor improperly commented on his constitutional rights to a jury trial, improperly demeaned defense counsel, improperly urged the jury to convict him for reasons other than his guilt, and improperly commented on the truthfulness of the victim. Having failed to preserve his claims of error, he argues that the cumulative effect of the prosecutor's misconduct resulted in fundamental error requiring reversal of his convictions and remand for a new trial. We conclude that the prosecutor committed misconduct by suggesting to the jury that Ryan was having a jury trial to try to get away with his crime, by telling the jury that defense counsel made an argument that allows guilty people to go free and was a trick, by urging the jury to convict him “to send the message that we're not going to allow people to do this” and by telling the jury that the victim told the truth about what happened. We further conclude that the error resulting from this misconduct is fundamental, and therefore we reverse Ryan's convictions and remand for a new trial.

Facts and Procedural History

The facts most favorable to the jury's verdict indicate that in the summer of 2011, forty-three-year-old Ryan was an eighth-grade physics teacher. He was married with two children. Fourteen-year-old Z.W–B. was a student at the school where Ryan taught.¹ She had been enrolled in the school since the sixth grade, had known Ryan since she was eleven years old, and had taken his eighth-grade physics class. Z.W–B. has Asperger's syndrome.

That summer, Z.W–B. attended Ryan's science club at the school. More often than not, she was the only student in attendance. Ryan and Z.W–B. began to email and chat online. They used Google Plus, a social networking site similar to Facebook, to send private messages to each other. They chatted online every night. Initially, the purpose of their chats was to discuss the science club, but the content became more personal.

Their relationship became romantic when Z.W–B. told Ryan untruthfully that her father abused her so that Ryan would like her and feel sorry for her. Tr. at 50. She told Ryan that she did not want the abuse to become public knowledge because her mother might hurt herself if she heard about the abuse. Id. at 74–75. Afterward, Ryan told her that he loved her, and she told him that she loved him.

Sometime late in the summer they kissed in the storeroom in the back of Ryan's classroom. During the late summer and into the fall, Ryan and Z.W–B. kissed at least ten times in the storeroom. They kissed eight times with open mouths and with their tongues. Id. at 80. When they kissed this way, the kisses felt sexual to Z.W–B., and she was sexually aroused. Some of these encounters occurred while school was in session. During this time, Ryan gave Z.W–B. jewelry, a t-shirt, trinkets, and toys. On Z.W–B.'s birthday, Ryan threw her a party in the storeroom with candles and ice cream, and they kissed open-mouthed. During their times in the storeroom, Ryan never touched her breasts or vagina, and she never touched his penis. All their contact was limited to hugging and kissing.

Also during this time, Ryan and Z.W–B.'s online chats became romantic. On September 4, 2011, Ryan wrote, “Miss you,” and Z.W–B. responded, “I miss you indescribably.” State's Ex. 1 at 21. On September 13, 2011, Ryan wrote, “You are fantastic,” and Z.W–B. wrote, “Thanks, love.” Id. at 19. On September 16, 2011, Ryan sent Z.W–B. a message that ended with “I love you.” Id. at 18. Z.W–B. responded, “[T]oday has been it's [sic] own lifetime. It was wonderful. Thank you. I love you.” Id. at 19.

On October 8, 2011, Z.W–B. wrote, “I miss you. Thinking of you all the time,” and Ryan wrote, “Miss you.” Id. at 17. On October 16, 2011, Z.W–B. wrote, “See you in the morning. Love you. To pieces.” Id. at 15. On October 18, 2011, Ryan wrote, “A lovely science club. Miss you. Thank you,” and Z.W–B. wrote, “I miss you too.” Id. at 14. On October 23, 2011, Ryan wrote, “Missing you. Feels horrible with the one way communication. Messages in bottles. In a weird way though it's like you're with me all the time. Think about you constantly.” Id. at 10.

On October 28, 2011, Z.W–B. wrote,

I don't feel like I'm helping at all. I've certainly not improved the situation between you and your wife. I keep you up late and away from your work. I make you risk everything all the time. Horrified that I will have to convince you that I'm really not worth it. Even more horrifying is that you may not need any convincing. Especially after yesterday's storeroom incident. You mean an awful awful lot to me. Maybe things will clear up later. Or something. I don't know. But I love you.

Id. at 9. Ryan responded,

You've a tremendous positive impact on me. Can't imagine a life without you. You're helping me through a tough time. Trying to strike a difficult balance of as much time with you as possible without turning everyone against us. Friday was its own lifetime. I can't thank you enough. I am so privileged.

Id.

There were also messages in which Ryan discussed marital difficulties with his wife, his sex life with his wife, and his wife's physical appearance. Tr. at 49–50. Z.W–B. also sent messages expressing her desire to have sex with Ryan, but he declined, saying that he was afraid that they could get caught or that she would be hurt in some way. Id. at 52.

On October 29, 2011, Z.W–B.'s parents discovered her online communications with Ryan and notified the school and the police. The State charged Ryan with three counts of class C felony sexual misconduct with a minor, with Count I alleging that the misconduct occurred on or about or between October 10 to October 24, 2011, Count II alleging that the misconduct occurred on or about or between October 17 to October 21, 2011, and Count III alleging that the misconduct occurred on or about or between October 24 to 28, 2011.

A two-day jury trial was held. In her closing arguments, the prosecutor made the following relevant comments:

The most important person here to evaluate their credibility is [Z.W–B.] And does she have a motive or a bias to lie? And yes, she has a huge motive [or] bias to lie and say that nothing happened. Because she loves him; for some unexplainable reason she loves him and she didn't want him to be caught. She hated that he was going to be caught. But she didn't, she told you the truth. As uncomfortable and awkward as she was up there, she told you the truth of what happened. And I'm not sure if she would have been strong enough or smart enough to tell the truth if it wouldn't have been for these [Google Plus pages]. And again, you will get the copy that I admitted when you go back to deliberate. Please re-read them, see the picture of her in her school girl uniform sleeping in his chair in his classroom, it's posted on her. Read the way that they communicate with each other and think about it. This is a prosecutor's dream I can tell you in these kinds of cases. Because the law that you may convict based on the word of the child alone is usually all that we have. We don't get DNA; we don't get injuries to children. We get a kid and we've got to put them up there and they've got to convince 12 to 14 grown adults. And it's always a he said, she said. Because these kinds of guys never want to admit it, why? Because they're the kinds that do it. So this is awesome. Not that it happened, but that you get to see it. And remind yourself that this is a teacher. I love you, picturing you sleeping is a lovely image. We know what happens [to students] that have their teachers do this kind of stuff and prey upon them, we know now what happens. And it's what happened to her; in the sick crazy spiral that people like him put them in. You should believe her, she is credible, alone she makes the case. And you may convict him based just on her word..... You need nothing else. But this just drives it home..... Fit this into the innocent hole if you will please. Because it just doesn't go. She has every reason to have lied and covered for him and she didn't..... You wonder at night what you can say to a jury to get them to get the bigger picture here. And no case is easy for you guys, I get that. No one want[s] to judge someone else or somebody else's actions. But we keep hearing about this happening, whether it's a teacher, or a coach, or a pastor, whoever. And we all want to be really angry and post online and have strong opinions about it. And we never think that we'll be the ones that are here that get to stop it. And you actually do get to stop it. And as much as I know you probably did not want to be here on Monday morning, I would submit to you that you are in an incredible position to stop it and to send the message that we're not going to allow people to do this. Those of who [sic] are good teachers are not going to allow grown men to prey upon their students and get away with it. I want to be really clear, we are here because everyone has the right to have a jury trial. We're not here because he didn't do it, we're here because he wants to get away with it. So don't let him, thank you.

Id. at 139–41 (emphases added).

In her rebuttal, the prosecutor stated,

I guess it's frustrating in these cases because these kinds of arguments are how guilty people walk. And so, when you think about how people get away with it it's because defense attorneys do things like say well, it was...