Glen A. Carnahan v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Sep 28 2018, 10:30 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel K. Whitehead Curtis T. Hill
Yorktown, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Glen A. Carnahan, September 28, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-90
v. Appeal from the Madison Circuit Court
The Honorable Mark Dudley, Judge
State of Indiana,
Trial Court Cause No.
Appellee-Plaintiff 48C06-1605-F4-938
Crone, Judge.
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Case Summary
[1] Glen A. Carnahan appeals his convictions, following a jury trial, for one count
of class C felony child molesting and one count of level 4 felony child
molesting. The dispositive issue presented for our review is whether the trial
court abused its discretion in excluding certain evidence. Concluding that the
trial court indeed abused its discretion and impacted Carnahan’s substantial
rights, we reverse and remand for a new trial.
Facts and Procedural History
[2] The facts most favorable to the jury’s verdict indicate that C.D. was born on
July 22, 2007. Carnahan is C.D.’s mother’s former stepfather, and C.D.
referred to him as his “papaw.” Tr. Vol. 1 at 209. At the age of two, C.D.
began residing with Carnahan and Carnahan’s daughter, Daisha, because both
of C.D.’s parents were incarcerated, and Daisha obtained legal custody of C.D.
During that time, on more than one occasion, Carnahan touched C.D. on the
belly, back, “butt,” and “pee-pee.” Id. at 210. Carnahan touched C.D. under
his clothes with his hand. When touching C.D.’s “pee-pee,” Carnahan would
“play[] with it and squeeze[] and stuff like that.” Id. at 214. Carnahan would
also squeeze C.D.’s “butt.” Id. The touching occurred multiple times at
Carnahan’s house, in his upstairs bedroom. The first touching occurred when
C.D. was six years old, and the last touching occurred around April of 2015.
[3] C.D. moved back in with his mother in December 2015. C.D. began
inappropriately touching his mother’s girlfriend’s five-year-old son, and he also
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inappropriately touched his eight-year-old stepsister. C.D. eventually told his
mother what Carnahan had done to him. C.D.’s mother immediately called the
police.
[4] On May 12, 2016, the State charged Carnahan with two counts of level 4 felony
child molesting. The State later amended the information and charged
Carnahan with one count of class C felony child molesting and one count of
level 4 felony child molesting. Both amended counts involved victim C.D.; one
count alleged that Carnahan committed child molesting between July 1, 2013,
and June 30, 2014, and the other count alleged that he committed child
molesting between July 1, 2014, and December 31, 2015. Thereafter, the State
again amended the information. The State alleged that Carnahan committed
class C felony child molesting against C.D. between July 22, 2013 and June 30,
2014, and level 4 felony child molesting against C.D. between July 1, 2014 and
December 25, 2015.
[5] A jury trial was held on November 15 and 16, 2017. The jury found Carnahan
guilty as charged. The court sentenced him to concurrent terms of six years on
the class C felony and nine years on the level 4 felony. This appeal ensued.
Discussion and Decision
Section 1 – The trial court abused its discretion and committed
reversible error in excluding certain evidence.
[6] Carnahan asserts that the trial court abused its discretion and committed
reversible error in excluding certain evidence. We review the trial court’s
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exclusion of evidence only for an abuse of discretion. Wilson v. State, 765
N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs where the trial
court’s decision is clearly against the logic and effect of the facts and
circumstances presented. Hardiman v. State, 726 N.E.2d 1201, 1203 (Ind. 2000).
Even if a trial court errs in its evidentiary ruling, we will not overturn the
conviction if the error is harmless. Appleton v. State, 740 N.E.2d 122, 124 (Ind.
2001). An error is harmless when it results in no prejudice to the substantial
rights of a party. Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018).
[7] During trial, Carnahan sought to admit extrinsic evidence that C.D. had made
a prior statement to his aunt Daisha that was inconsistent with his trial
testimony. Carnahan sought to introduce this evidence during cross-
examination of C.D. by first asking C.D. generally about a conversation he had
with Daisha, and then about the specific prior statement in which C.D.
allegedly recanted his molestation claims. The State objected to Carnahan’s
attempt to question C.D. about the specific statement, and the trial court
sustained the objection. After C.D. was done testifying, Carnahan informed the
trial court that he wanted to introduce testimony from Daisha regarding C.D.’s
alleged prior inconsistent statement. After a lengthy discussion outside the
presence of the jury, the trial court conceded that it had erroneously sustained
the State’s objection during Carnahan’s cross-examination of C.D., and that
Carnahan should have been permitted to confront C.D. with the prior
statement. Nevertheless, the court determined that Daisha was precluded from
testifying regarding the statement, and further that Carnahan would not be
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permitted to recall C.D. to the stand for any reason. Carnahan then made an
offer to prove during which Daisha testified that C.D. told her that Carnahan
had never touched him inappropriately.
[8] On appeal, Carnahan asserts that the trial court abused its discretion in
excluding Daisha’s testimony. We agree.
[9] Indiana Evidence Rule 613(b) states in relevant part:
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 does not apply to an opposing party’s
statement under 801(d)(2).
[10] In Griffith v. State, 31 N.E.3d 965 (Ind. 2015), our supreme court looked to the
approach taken by federal courts interpreting Federal Rule of Evidence 613(b)
and determined that the requirement that a witness be given an opportunity to
explain or deny a prior inconsistent statement may be afforded to that witness
at any point during the proceedings. Id. at 972. The court explained, however,
that “confronting a witness with his inconsistent statement prior to its
introduction into evidence” is the “preferred method of proceeding.” Id.
(citation omitted). The court reasoned that this approach “avoids the risk that a
witness may become unavailable as the trial proceeds and consequently could
not be recalled to explain or deny the prior statement.” Id. Additionally, the
Griffith court recognized that “the preferred approach may make it easier for a
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jury to understand the context of the intended impeachment.” Id. The court
went on to explain:
Despite this preferred method, trial courts are still given broad
discretion in excluding or admitting extrinsic evidence under
Rule 613(b). We encourage trial courts to consider a variety of
relevant factors in making the determination to admit or exclude
extrinsic evidence, such as the availability of the witness, the
potential prejudice that may arise from recalling a witness only
for impeachment purposes, the significance afforded to the
credibility of the witness who is being impeached, and any other
factors that are relevant to the interests of justice.
Id.
[11] We conclude that the trial court here abused its discretion in excluding Daisha’s
testimony regarding C.D.’s alleged prior inconsistent statement. First, the
significance of C.D.’s credibility cannot be overstated. The State’s case against
Carnahan rested entirely upon C.D.’s uncorroborated testimony.1 In other
words, it was essentially C.D.’s word against Carnahan’s. Therefore, Daisha’s
impeachment testimony was critical to Carnahan’s defense. Second, the trial
court was responsible, due to its erroneous ruling sustaining the State’s
objection, for Carnahan’s failure to follow the “preferred method” of
confronting C.D. with the statement when he was originally on the witness
stand. Id. There is nothing in the record to indicate that C.D. was
1
Indeed, during closing argument, the State made this telling statement to the jury: “If you believe C.D., the
defendant is guilty.” Tr. Vol. 3 at 27.
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subsequently unavailable to testify, and the State failed to establish any
potential prejudice that would have arisen from recalling C.D. as a witness to
give him an opportunity to explain or deny the statement.2 Based upon the
circumstances and the sequence of events at trial, and in the interests of justice,
the trial court should have rectified this situation by permitting Daisha to testify
regarding the alleged statement made to her by C.D., and then giving the State
the opportunity to recall C.D. to the stand to explain or deny the statement. See
id. at 971. The trial court’s failure to do so was an abuse of discretion.
[12] Moreover, the trial court’s error in this regard was not harmless. The erroneous
exclusion of evidence does not require a reversal if “its probable impact on the
jury, in light of all of the evidence in the case, is sufficiently minor so as not to
affect the defendant’s substantial rights.” Vasquez v. State, 868 N.E.2d 473, 477
(Ind. 2007). As stated above, C.D.’s credibility was central to this case. Thus,
the exclusion of Daisha’s testimony impeaching that credibility significantly
affected Carnahan’s substantial rights. Accordingly, we reverse Carnahan’s
convictions.
Section 2 – The evidence is sufficient to support Carnahan’s
class C felony conviction.
[13] We briefly address Carnahan’s sufficiency of the evidence argument simply to
dispel any question as to the State’s ability to retry him on both charges.
2
The trial court denied C.D. the opportunity to explain or deny the prior statement by ruling that neither
party could recall him as a witness.
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Carnahan concedes that the State presented sufficient evidence to support his
level 4 felony child molesting conviction but asserts that the State presented
insufficient evidence to support his class C felony child molesting conviction.
The entirety of his argument is that the specific commission date of the offense
covered by the class C felony charge is not clear from C.D.’s testimony.
However, given that time is not of the essence in child molesting cases except in
limited circumstances not applicable here, we do not find the evidence to be
insufficient due to any failure by the State to prove the specific date of the
offense alleged in the information. Barger v. State, 587 N.E.2d 1304, 1307 (Ind.
1992) (exact date becomes important only where victim’s age at time of offense
falls at or near dividing line between classes of felonies).3
[14] The general rule is that retrial of a defendant is permissible when the
convictions are reversed on grounds other than sufficiency of the evidence.
Calvert v. State, 14 N.E.3d 818, 823 (Ind. Ct. App. 2014). Because we reverse
Carnahan’s convictions on the basis that the trial court erred when it excluded
evidence, the State may retry Carnahan.
3
Carnahan’s argument is that the State failed to prove that he committed child molesting during the time
frame alleged in the information for the class C felony. See Appellant’s App. Vol. 2 at 50 (alleging that “[o]n
or between July 22, 2013, and June 30, 2014,” Carnahan, “with a child under fourteen years of age,
specifically, C.D., performed or submitted to any fondling or touching, of either the child or himself, with
intent to arouse or to satisfy the sexual desires of either the child or himself”). Contrary to Carnahan’s
assertion, C.D. unequivocally testified that Carnahan molested him multiple times, and that he was six years
old when the molestations began, and around nine years old when they ended. C.D. would have been six
years old between July 22, 2013, and June 30, 2014. The only reason the specific time frame has any
relevance here, in turn causing the State to charge Carnahan differently for each molestation offense, was due
to amendments to Indiana criminal statutes as of July 1, 2014. See Ind. Code § 35-42-4-3(b) (changing the
crime of child molesting from a class C to a level 4 felony).
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[15] Reversed and remanded for a new trial.
Najam, J., and Pyle, J., concur.
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