Ronald C. Weyland v. State of Indiana (mem. dec.) ( 2015 )


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  • MEMORANDUM DECISION
    Jun 03 2015, 10:56 am
    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.
    ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
    Frederick Vaiana                                          Gregory F. Zoeller
    Voyles Zahn & Paul                                        Attorney General of Indiana
    Indianapolis, Indiana
    Jodi Kathryn Stein
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Ronald C. Weyland,                                       June 3, 2015
    Appellant-Defendant,                                     Court of Appeals Case No.
    48A04-1409-CR-446
    v.                                               Appeal from the Madison Circuit
    Court
    The Honorable Dennis D. Carroll,
    State of Indiana,                                        Judge
    Appellee-Plaintiff                                       Cause No. 48C06-1306-FA-1227
    Bailey, Judge.
    Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015            Page 1 of 13
    Case Summary
    [1]   After a jury trial, Ronald C. Weyland (“Weyland”) was convicted of Attempted
    Child Molesting, as a Class A felony;1 Child Molesting, as a Class A felony;2
    and Child Molesting, as a Class C felony.3 He now appeals.
    [2]   We affirm in part, reverse in part, and remand.
    Issues
    [3]   Weyland raises two issues for our review, which we restate as:
    1. Whether there was sufficient evidence to sustain his convictions; and
    2. Whether the trial court abused its discretion when it limited the scope of
    his cross-examination of a witness.
    Facts and Procedural History
    [4]   Weyland had a daughter, E.K., with Amy K. (“Amy”). E.K. was born on
    January 20, 2008. Weyland and Amy did not live together, and Amy had
    primary custody of E.K. Weyland, who lived in Pendleton, and Amy had
    arranged for E.K. to spend two days each week with Weyland. Weyland also
    provided childcare for E.K. on nights when Amy needed to work late.
    1
    Ind. Code §§ 35-42-4-3(a)(1) & 35-41-5-1.
    2
    I.C. § 35-42-4-3(a)(1).
    3
    I.C. § 35-42-4-3(b).
    Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015   Page 2 of 13
    [5]   E.K. had a room in Weyland’s home, where Weyland lived with his mother,
    Ivana, and his older daughter and E.K.’s half-sister, Makayla. Sometimes E.K.
    slept in her own bed; sometimes she slept with Weyland in his bed.
    [6]   Weyland, Ivana, and Makayla each helped care for E.K., including bathing
    E.K. and helping E.K. shower. On a number of occasions, Weyland would
    shower naked with E.K., and would wash E.K.’s genitals. E.K. expressed
    reluctance to shower when Ivana or Makayla showered her; when Weyland
    would shower her, however, E.K. would scream, cry, and throw herself on the
    floor.
    [7]   Around December 25, 2012, Weyland had a number of relatives staying at his
    home for the Christmas holiday. E.K., who was four years old at the time, also
    stayed with Weyland for five or six nights.
    [8]   Amy picked E.K. up from Weyland’s house on the evening of December 27,
    2012. While Amy drove home, she and E.K. were talking. At some point
    during the conversation, E.K.’s tone of voice changed, and she told Amy that
    Weyland had touched her inappropriately. When Amy pulled the car over and
    called her mother (“Maternal Grandmother”), E.K. protested to Amy that it
    was “daddy’s secret and you’ll go to jail.” Tr. at 143.
    [9]   Amy drove to Community Hospital in Anderson, where a sexual assault
    examination was performed on E.K. The following day, a forensic interviewer
    working for the Indiana Department of Child Services interviewed E.K.
    Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015   Page 3 of 13
    During the interview, E.K. stated that Weyland had touched her genitals with a
    picture-hanging nail and had placed his penis on her mouth.
    [10]   A police investigation ensued based upon E.K.’s statements. On June 21, 2013,
    Weyland was charged with two counts of Attempted Child Molesting, as Class
    A felonies, and Child Molesting, as a Class C felony. The State also filed a
    notice of intent to seek a Habitual Offender enhancement.
    [11]   On August 5, 2014, the State amended the charges against Weyland, adding to
    the existing charges an additional charge of Child Molesting, as a Class A
    felony.
    [12]   A jury trial was conducted on August 6 and 7, 2014. During the trial, the State
    dismissed one count of Attempted Child Molesting, as a Class A felony.
    [13]   Also during the trial, Weyland sought to introduce extrinsic evidence in the
    form of testimony from Amy concerning statements E.K. had made, which
    statements Weyland contended were inconsistent with prior statements of E.K.
    The State objected, and after an offer of proof the trial court ruled those
    statements inadmissible under Evidence Rules 613 and 403.
    [14]   At the close of the trial, the jury found Weyland guilty of the three remaining
    charges: Attempted Child Molesting, as a Class A felony; Child Molesting, as a
    Class A felony; and Child Molesting, as a Class C felony.
    [15]   A sentencing hearing was conducted on September 8, 2014. During the
    hearing, the trial court entered judgments of conviction against Weyland. At
    Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015   Page 4 of 13
    the end of the hearing, the court sentenced Weyland to forty-five years
    imprisonment for each of the two Class A felony-level convictions, and to six
    years imprisonment for the Class C felony-level conviction. The trial court ran
    the sentences concurrent with one another, yielding an aggregate term of
    imprisonment of forty-five years.
    [16]   This appeal ensued.
    Discussion and Decision
    Sufficiency of the Evidence
    [17]   On appeal, Weyland first contends that there was insufficient evidence to
    convict him of Attempted Child Molesting and Child Molesting, as Class A
    felonies, and of Child Molesting, as a Class C felony.
    [18]   Our standard of review in challenges to the sufficiency of evidence is well
    settled. We consider only the probative evidence and reasonable inferences
    supporting the verdict. Drane v. State, 
    867 N.E.2d 144
    , 146 (Ind. 2007). We do
    not assess the credibility of witnesses or reweigh evidence. 
    Id. We will
    affirm
    the conviction unless “no reasonable fact-finder could find the elements of the
    crime proven beyond a reasonable doubt.” 
    Id. (quoting Jenkins
    v. State, 
    726 N.E.2d 268
    , 270 (Ind. 2000)). “The evidence is sufficient if an inference may
    reasonably be drawn from it to support the verdict.” 
    Id. at 147
    (quoting Pickens
    v. State, 
    751 N.E.2d 331
    , 334 (Ind. Ct. App. 2001)).
    Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015   Page 5 of 13
    [19]   To convict Weyland of Attempted Child Molesting, as a Class A felony, as
    charged, the State was required to prove beyond a reasonable doubt that
    Weyland, being at least twenty-one years old, attempted to commit Child
    Molesting, that is, to perform or submit to sexual intercourse or criminal
    deviate conduct with E.K., a child under fourteen years of age, by engaging in a
    substantial step toward committing the crime of child molesting, namely,
    attempting to place his penis in E.K.’s mouth. See I.C. §§ 35-42-4-3(a)(1) & 35-
    41-5-1; App’x at 108. There is sufficient evidence of a substantial step toward
    commission of a crime based upon taking an action, the “natural and usual
    sequence of which” would lead to commission of a completed offense. Boling v.
    State, 
    982 N.E.2d 1055
    , 1057 (Ind. Ct. App. 2013).
    [20]   The evidence that favors the judgment as to Attempted Child Molesting, as a
    Class A felony, is that Weyland put his penis on or near E.K.’s mouth for
    “about three minutes” according to E.K.’s testimony, Tr. at 129, at least long
    enough for E.K. to testify at trial that Weyland’s penis was “squishy” or
    “squishy hard.” Tr. at 117. The jury was within its ambit to conclude that the
    “natural and usual sequence” of placing a penis near another person’s mouth is
    to engage in oral sex. 
    Boling, 982 N.E.2d at 1057
    . To the extent Weyland
    contends he did not use any force or that touching his penis to E.K.’s mouth
    was “incidental” and “nothing that rises to the level of deviate sexual conduct,”
    Appellant’s Br. at 10, we regard such argument as an invitation to reweigh
    evidence, which we will not do. 
    Drane, 867 N.E.2d at 146
    . We accordingly
    affirm his conviction for Attempted Child Molesting, as a Class A felony.
    Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015   Page 6 of 13
    [21]   Weyland also argues that there was insufficient evidence to sustain his
    conviction for Child Molesting, as a Class A felony. To convict Weyland of
    Child Molesting, as a Class A felony, as charged, the State was required to
    prove beyond a reasonable doubt that Weyland, being at least twenty-one years
    old, performed or submitted to deviate sexual conduct with E.K., a child of
    under fourteen years of age, by inserting an object into the sex organ or anus of
    E.K. See I.C. § 35-42-4-3(a)(1); App’x at 109. On this count, Weyland argues
    that there was insufficient evidence that he actually inserted an object—here, a
    picture-hanging nail—into E.K.’s vagina or anus. That is, Weyland argues
    there was insufficient evidence to satisfy the requirement of penetration
    necessary to sustain a conviction for criminal deviate conduct or sexual
    intercourse, as required by the charging statute.
    [22]   Our supreme court has emphasized that “proof of the slightest penetration is
    enough to support a conviction.” Spurlock v. State, 
    675 N.E.2d 312
    , 315 (Ind.
    1996). Detailed anatomical descriptions of penetration are unnecessary to
    sustain a conviction. 
    Id. However, in
    Spurlock, the Indiana Supreme Court
    concluded there was insufficient evidence of penetration. In particular, the
    Suprlock Court observed that the victim in that case testified that “Spurlock’s
    penis touched her vagina,” but never testified that “it penetrated and went
    inside, and explicitly said she did not know whether that occurred.” 
    Id. Spurlock’s victim
    also testified that “her vagina was used to go to the bathroom
    as well as to have intercourse, demonstrating only a generalized understanding
    of the term.” 
    Id. Court of
    Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015   Page 7 of 13
    [23]   The evidence that favors the judgment comes, again, in the form of E.K.’s
    testimony. E.K. identified Weyland’s “middle part” as being what he used to
    “go potty,” Tr. at 115, and demonstrated knowledge generally that her own
    “middle part” or “bottom” should not be touched. Tr. at 112. E.K. testified
    that Weyland pulled down her pants and underwear and used a nail to touch
    her “middle part.” Tr. at 113. This “hurt a little bit.” Tr. at 114. E.K. testified
    that Weyland touched the “[o]utside because daddy still loves me” and “didn’t
    want it to hurt me that much.” Tr. at 114. Both upon direct and cross
    examination, E.K. testified only that Weyland had touched her genitalia on the
    “outside.” Tr. at 114, 129. And while E.K. was examined by Holly Renz
    (“Renz”), a Sexual Assault Nurse Examiner, that examination provided no
    probative evidence as to whether any penetration had occurred.
    [24]   Based upon this, even viewed in a light most favorable to the judgment, we
    cannot conclude that there was sufficient evidence of penetration to convict
    Weyland of Child Molesting, as a Class A felony. We accordingly reverse the
    trial court and, on remand, instruct the trial court to vacate Weyland’s
    conviction for Child Molesting, as a Class A felony.
    [25]   We now turn to the last of Weyland’s three convictions. To convict Weyland
    of Child Molesting, as a Class C felony, as charged, the State was required to
    prove beyond a reasonable doubt that Weyland performed or submitted to any
    fondling or touching with E.K., a child then under fourteen years of age, with
    the intent to arouse or satisfy either Weyland’s or E.K.’s sexual desires. See I.C.
    § 35-42-4-3(b); App’x at 109.
    Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015   Page 8 of 13
    [26]   Here, Weyland argues that there was insufficient evidence of his intent to
    arouse or satisfy his or E.K.’s sexual desires. Weyland observes that he, Ivana,
    and Makayla all bathed E.K., including washing her genital area. Our review
    of the record, however, reveals that only Weyland showered with E.K. while
    both were nude. Moreover, Makayla testified that while E.K. would show
    reluctance to shower when prompted by Ivana or Makayla, E.K. would throw
    herself on the floor and scream when Weyland took her to shower. And while
    Weyland’s touching of the outside of E.K.’s genitalia with a nail did not
    amount to Child Molesting, as a Class A felony, Weyland’s purposive removal
    of E.K.’s pants and touching of her genital area is sufficient evidence to sustain
    the Class C felony conviction Weyland also challenges.
    [27]   We conclude that there was sufficient evidence from which a reasonable jury
    could conclude that Weyland committed Child Molesting, as a Class C felony.
    We accordingly affirm this conviction.
    Admissibility of Evidence
    [28]   Weyland also contends that the trial court abused its discretion and thereby
    committed reversible error when it denied his efforts to introduce extrinsic
    evidence of E.K.’s prior inconsistent statements, which evidence was to take the
    form of Amy’s testimony. 4
    4
    Weyland frames this initially as a constitutional question, referring to the confrontation provisions of the
    U.S. and Indiana constitutions. His substantive argument deals exclusively with the effect of Evidence Rules
    Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015               Page 9 of 13
    [29]   We review a trial court’s rulings on the admissibility vel non of evidence for an
    abuse of discretion. Orr v. State, 
    968 N.E.2d 858
    , 860 (Ind. Ct. App. 2012). An
    abuse of discretion occurs when the trial court’s decision is contrary to the facts
    and circumstances before it, or when the court misinterprets the law. Bryant v.
    State, 
    959 N.E.2d 315
    , 321 (Ind. Ct. App. 2011). Even where a trial court
    abuses its discretion, however, we will not reverse the judgment if the error is
    harmless, that is, if the decision had no prejudicial effect on the substantial
    rights of the parties. Ind. Trial Rule 61.
    [30]   At trial, Weyland sought under Evidence Rules 613 and 403 to obtain extrinsic
    evidence that E.K. had made prior statements to Amy that were inconsistent
    with E.K.’s trial testimony. The court denied Weyland’s efforts to cross-
    examine Amy for these purposes. Evidence Rule 613 governs impeachment of
    witnesses through prior statements:
    (a) Showing or Disclosing the Statement During Examination. When
    examining a witness about the witness’s prior statement, a party need
    not show it or disclose its content to the witness. But the party must,
    on request, show it or disclose its contents to an adverse party’s
    attorney.
    (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic
    evidence of a witness’s prior inconsistent statement is admissible only
    if the witness is given an opportunity to explain or deny the statement
    and an adverse party is given an opportunity to examine the witness
    about it, or if justice so requires. This subdivision (b) does not apply to
    an opposing party’s statement under Rule 801(d)(2).
    613 and 403 and applicable case law, however. To the extent Weyland contends there was error of
    constitutional dimension, then, that contention is waived. See Ind. Appellate Rule 46(A)(8)(a).
    Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015          Page 10 of 13
    Evidence Rule 403 provides, “The court may exclude relevant evidence if its
    probative value is substantially outweighed by a danger of one or more of the
    following: unfair prejudice, confusing the issues, misleading the jury, undue
    delay, or needlessly presenting cumulative evidence.”
    [31]   The State objected to Weyland’s efforts to introduce extrinsic evidence in the
    form of Amy’s testimony, contending that Weyland had failed to lay a proper
    foundation because he had not confronted E.K. with her alleged prior
    inconsistent statements. See 
    Orr, 968 N.E.2d at 863
    (stating that the preferred
    method of introducing extrinsic evidence under Rule 613 is by confronting a
    witness before offering extrinsic evidence). The trial court observed that Rule
    613 permitted admission of extrinsic evidence even absent an opportunity for
    the witness to address prior inconsistent statements when “justice so requires,”
    Evid. R. 613(b), and opined that the interests of justice might so require where a
    witness was especially young like E.K. See 
    Orr, 968 N.E.2d at 864-65
    (observing that trial courts have discretion to admit extrinsic evidence for
    impeachment of a witness under Evid. R. 613).
    [32]   Accordingly, prior to a final ruling, the trial court heard Weyland’s offer of
    proof:
    Q:      [Amy], over the course of the last year and half is it fair to say
    that [E.K.] has said different things at different times about
    what her father did to her?
    A:      Yes.
    Tr. at 193. The State posed several follow-up questions:
    Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015    Page 11 of 13
    Q:       You stated that [E.K.] has said different things at different
    times, the substance of which, has that remained the same?
    A:       Yes, just yes, she just disclosed more as time has gone on, her
    story hasn’t changed.
    Q:       She’s just disclosed more?
    A:       Yes, things that she had originally disclosed to only DCS, you
    know, she disclosed to me now. She just elaborated more.
    There hasn’t been…
    Q:       She’s just given you more information than what she did
    originally in the car?
    A:       Yes.
    Tr. at 193-94. When asked by the trial court whether he had further questions
    to ask as part of the offer of proof, Weyland’s counsel said, “No, Judge, that’s
    it.” Tr. at 194.
    [33]   Based upon this record, and assuming without deciding there was any error in
    the trial court’s decision not to permit this examination of Amy before the jury,
    we cannot conclude that Weyland was prejudiced by the trial court’s decision
    not to admit such testimony. The proffered testimony did nothing to establish
    that E.K. had made significant inconsistent statements, let alone statements that
    might have substantially undermined E.K.’s testimony. We accordingly
    conclude that Weyland has failed to establish that he was prejudiced by any
    error on the part of the trial court, even assuming the trial court’s ruling was
    erroneous.
    Conclusion
    Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015   Page 12 of 13
    [34]   There was sufficient evidence to sustain Weyland’s convictions for Attempted
    Child Molesting, as a Class A felony, and Child Molesting, as a Class C felony.
    Concluding there was insufficient evidence to support Weyland’s conviction for
    Child Molesting, as a Class A felony, we accordingly reverse the trial court.
    Finding as harmless any error in the trial court’s limitation of Weyland’s
    examination of a witness, we leave undisturbed Weyland’s two remaining
    convictions, but remand with instructions to vacate Weyland’s conviction for
    Child Molesting, as a Class A felony.
    [35]   Affirmed in part, reversed in part, and remanded.
    Riley, J., and Barnes, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015   Page 13 of 13
    

Document Info

Docket Number: 48A04-1409-CR-446

Filed Date: 6/3/2015

Precedential Status: Precedential

Modified Date: 6/3/2015