Kyle W. Dilts v. State of Indiana , 49 N.E.3d 617 ( 2015 )

Dec 31 2015, 10:20 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Leanna Weissmann Gregory F. Zoeller
Lawrenceburg, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General of Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kyle W. Dilts, December 31, 2015
Appellant-Defendant, Court of Appeals Case No.
15A01-1412-CR-545
v. Appeal from the Dearborn Superior
Court
State of Indiana, Trial Court Cause No.
15D01-1310-FA-22
Appellee-Plaintiff.
The Honorable Jonathan N. Cleary,
Judge
Pyle, Judge.
Statement of the Case
[1] This case is a reminder that failure to make a contemporaneous objection at the
time evidence is introduced at trial will result in waiver of the issue on appeal.
Indeed, an appellate claim will not be preserved upon an objection discussed or
not made immediately prior to or following the admission of evidence.
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[2] Kyle Dilts (“Dilts”) was charged with and convicted of the following two
counts of Class A felony child molesting:1 Count I for engaging in sexual
intercourse with his daughter and Count II for engaging in deviate sexual
conduct with that same daughter. During sentencing, the trial court vacated
Dilts’s conviction for Class A felony child molesting in Count II, apparently
basing its decision on either double jeopardy grounds or the continuing crime
doctrine, and imposed a thirty-six (36) year sentence for Dilts’s Class A felony
child molesting under Count I.
[3] On appeal, Dilts challenges two of the trial court’s evidentiary rulings made
during his jury trial. Specifically, he contends the trial court abused its
discretion by admitting: (1) testimony regarding Dilts’s suicidal ideation
following his daughter’s accusations against him; and (2) his daughter’s
videotaped interview with a child abuse forensic interviewer. The State cross-
appeals and argues that the trial court erred by vacating Dilts’s Class A felony
child molesting conviction in Count II because the conviction neither violated
the prohibition against double jeopardy nor the continuing crime doctrine.
[4] Concluding that Dilts waived review of his evidentiary challenges by failing to
make a contemporaneous object at the time the challenged evidence was
introduced at trial, we affirm Dilts’s conviction for Class A felony child
1
IND. CODE § 35-42-4-3(a)(1). We note that, effective July 1, 2014, a new version of this child molesting
statute was enacted and that Class A felony child molesting is now a Level 1 felony. Because Dilts
committed his crimes before the effective date, we will refer to the statute in effect at that time.
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molesting as contained in Count I. In regard to the State’s cross-appeal issue,
we agree that that trial court erred by vacating Dilts’s Class A felony child
molesting conviction from Count II. Therefore, we reverse the trial court’s
order vacating this conviction and remand with instructions for the trial court to
enter judgment of conviction for this conviction under Count II and to hold a
new sentencing hearing to sentence Dilts for this Count II conviction.
[5] We affirm in part, reverse in part, and remand.
Issues
1. Appeal Issue – Whether the trial court abused its discretion by
admitting testimony regarding Dilts’s suicidal ideation and by
admitting the victim’s videotaped interview with a child abuse
forensic interviewer.
2. Cross-Appeal Issue – Whether the trial court erred by vacating
Dilts’s Class A felony child molesting conviction in Count II based
on double jeopardy grounds or the continuing crime doctrine.
Facts
[6] In 2011, Dilts was separated from his wife, Samantha Dilts (“Samantha”), with
whom he had a daughter, K.D., born in March 2001. At that time, K.D. and
Samantha lived in Kentucky with K.D.’s siblings and half-siblings, and Dilts
lived in Aurora, Indiana with his girlfriend, Christie Rutledge (“Rutledge”), and
her children.
[7] During the time when Dilts lived in his house in Indiana, he inappropriately
touched K.D. on multiple occasions when she visited him. The first time,
which was sometime in 2011, K.D. was in the bathroom when Dilts went into
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the bathroom and “started fingering [her]” or touching her in her “vaginal area”
with his fingers “moving in a circular motion.” (Tr. 503, 504). Dilts, who was
wearing no pants and had been masturbating, then picked up K.D., put her on
his lap with her facing out, and “proceeded in fingering [her] again.” (Tr. 505).
Dilts then “[p]artial[ly] inserted his penis into K.D.’s vagina. (Tr. 506).
[8] Subsequently, a few weeks later, Dilts again touched K.D. in the bathroom at
his house in Indiana. Dilts “stuck his hands down [K.D.’s] pants[,]” “took all
of [her] clothes off[,]” picked her up, placed her on his lap as he sat on the
toilet, and “inserted his penis” into K.D. (Tr. 509, 510). At this time, K.D. saw
and felt that Dilts had a “bump” on his penis. (Tr. 510).
[9] On a third occasion at Dilts’s house, he went into K.D.’s bedroom, where she
was getting dressed, “pull[ed] [her] pants down about halfway” and then
“fingered” and “licked” her “vaginal area.” (Tr. 511). After each molestation,
Dilts warned K.D. not to tell anyone about what he had done.
[10] In August 2013, K.D. confided in her friend, T.A., that Dilts had molested her.
K.D. was “shaky” and “crying.” (Tr. 388). K.D. told T.A. not to tell anyone.
Around that same time, T.A.’s mother, Melanie Bowman (“Bowman”), noticed
a change in K.D.’s demeanor from being a “bubbly kid” to “act[ing] strange”
and not wanting to go around Bowman’s husband. (Tr. 400). T.A. eventually
told her mother, who then informed K.D.’s mother, Samantha, about what
Dilts had done. Thereafter, K.D.’s allegations were reported to the Indiana
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Department of Child Services (“DCS”) and the Dearborn County Sheriff’s
Department.
[11] On August 29, 2013, K.D. spoke to Stephanie Back (“Back”), a forensic
interviewer with the Child Advocacy Center (“CAC”). Detective John Vance
(“Detective Vance”) of the Dearborn County Sheriff’s Department’s Special
Crimes Unit and Teresa Patrick (“Patrick”), a family case manager with DCS,
were present for the CAC interview and listened from a separate room. During
the interview, then twelve-year-old K.D. disclosed to Back that Dilts started to
sexually abuse her when she was nine years old. K.D. stated that, when she
was at Dilts’s house in Indiana, he had touched her vagina with his fingers,
mouth, and penis. Additionally, K.D. alleged that Dilts had molested her when
they lived in Kentucky and had also molested K.D.’s sister. After K.D.’s
interview at the CAC, she went to Cincinnati Children’s Hospital for a physical
examination. Dr. Berkeley Bennett (“Dr. Bennett”), who examined K.D.,
discovered that K.D.’s hymen had a “transection” or a “significant tear” that
was consistent with sexual abuse. (Tr. 718).
[12] The following day, on August 30, 2013, Detective Garland Bridges (“Detective
Bridges”) went to Dilts’s house and took a recorded statement from him.
During that interview, Dilts confirmed that he had a bump on his penis.
[13] Sometime after K.D.’s allegations against Dilts, DCS filed a petition alleging
that K.D. was a child in need of services (“CHINS”). Dilts was subpoenaed to
appear at a CHINS hearing scheduled for September 11, 2013, but he did not
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appear. At that time, Dilts voluntarily admitted himself to a community mental
health facility after he had apparently expressed some suicidal ideation.
[14] Shortly thereafter, on October 2, 2013, the State charged Dilts with Count I,
Class A felony child molesting (based on sexual intercourse); and Count II,
Class A felony child molesting (based on deviate sexual conduct). These acts
were alleged to have occurred between January 2011 and August 2013. 2
[15] Prior to trial, the State requested a pretrial hearing to determine the
admissibility of child hearsay pursuant to INDIANA CODE § 35-37-4-6, the
Protected Person Statute (“PPS”). Specifically, the State asked the trial court to
determine the admissibility of K.D.’s statements contained in her videotaped
forensic interview at the CAC. On September 4, 2014, the trial court held a
pretrial hearing to determine the admissibility of child hearsay pursuant to the
PPS. During this hearing, K.D. testified about four instances when Dilts had
molested her at his house in Indiana. At the end of the hearing, the State
argued that the CAC video should be admissible at trial under the PPS because
it had met its burden under INDIANA CODE § 35-37-4-6(e)(1) by showing that
the videotape provided sufficient indications of reliability and its burden under
section (e)(2) because K.D. would be testifying at trial. Dilts objected to the
CAC video being admitted at trial, arguing only that the CAC video was
“unreliable” because K.D.’s testimony during the hearing did not “match up”
2
These dates were contained in the amended information, which was filed on September 4, 2014.
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with her statements made in the CAC interview. (Tr. 98). Dilts’s counsel
stated that “unavailability or availability [we]re not issues.” (Tr. 97).
[16] Following the hearing, the trial court issued an order, in which it found, in part,
that K.D.’s statements during the CAC interview were “generally consistent”
with her testimony at the child hearsay hearing and that she had also “provided
additional details of other incidents” involving Dilts. (App. 83). The trial court
determined that “the August 29, 2013 videotaped [CAC] statement of K.D.
[would be] admissible at the jury trial, so long as the other requirements of
Indiana Code [§] 35-37-4-6 [we]re met, including K.D. testifying at trial, as
required by the Indiana [C]ode absent psychiatrist, physician, or psychologist
testimony concerning unavailability.” (App. 83-84).
[17] The trial court held a four-day jury trial on September 15-18, 2014. During voir
dire, Dilts’s two attorneys stated that they both had brothers who had
committed suicide. One of the attorneys asked the jury venire “if evidence were
presented that a suspect, a defendant, was depressed and contemplating suicide,
that would not be evidence of guilt in your mind, would it?” (Tr. 268). Shortly
thereafter, Dilts’s other attorney stated that the jury would hear that Dilts,
“after learning about these accusations . . . attempted suicide.” (Tr. 285-86).
His counsel then asked, “If you heard that someone attempted suicide, how
would that make you feel?” (Tr. 286).
[18] Dilts’s defense at trial was that he was innocent and that K.D. was making up
the allegations against him. During opening arguments, Dilts’s counsel stated
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that K.D. had a videotaped interview at the CAC where “she made these
allegations that led to these charges.” (Tr. 362). His counsel then stated:
And I agree with [the prosecutor], I want you guys to hear it. I
want to characterize the statements that she made, because,
again, it’s not good enough that I believe that [Dilts is] innocent.
You guys get to make that decision. And after you -- after you
listen to what [K.D.] has to say, just on the face of her statement,
just from the statement itself and the twists and turns that it
makes and the outlandish accusations that are contained in her
statement and in the statement that she’ll give live and in court,
just from the statement itself you’ll see that she is not telling the
truth.
(Tr. 362-63).
[19] On the morning of the second day of the jury trial, before the trial continued,
Dilts’s counsel deposed K.D. During that day of trial, Detective Vance and
Patrick, the DCS family case manager, both testified that Dilts had failed to
appear at the CHINS hearing on September 11, 2013. Prior to Detective
Vance’s testimony on this subject, Dilts objected and argued that any testimony
regarding a CHINS proceeding was prejudicial and should be excluded under
Evidence Rule 404(b). The State responded that it was not going to present any
testimony regarding the findings of the CHINS proceeding and that, instead,
the testimony would be limited to the fact that Dilts failed to appear at the
CHINS hearing as subpoenaed. The State added that an upcoming witness
would testify that Dilts had not appeared for the CHINS hearing because “he
had attempted to commit suicide or was thinking of committing suicide.” (Tr.
432). The State argued that Dilts’s failure to appear for the CHINS hearing was
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“relevant evidence of guilt[.]” (Tr. 432-33). The State asserted that this
testimony was “evidence of his guilt, just like flight [i]s evidence of someone’s
guilt . . . suicide is flight, and not appearing at a CHINS proceeding is flight.”
(Tr. 433). The State acknowledged that “there [we]re other explanations as to
why someone would commit suicide, but that [went] to the weight, not the
admissibility” of the evidence. (Tr. 433). Dilts’s counsel responded that any
evidence of attempted suicide was not evidence of guilt and that it was
“improper to use a bad act [or] another act by this defendant that is not related
to the acts for which he’s charged to then somehow prove that he did this other
thing.” (Tr. 437). After the State told the trial court that Detective Vance
would not testify about the suicide issue, the trial court overruled Dilts’s
objection and allowed the State to present testimony from Detective Vance and
Patrick that Dilts had failed to appear for the CHINS hearing.
[20] That same day, K.D. testified regarding the three incidents of molestation as set
forth above. During cross-examination, Dilts’s counsel tried to impeach her
with: (1) the statements that she had made during the CAC interview; (2) her
testimony from the child hearsay hearing; and (3) her deposition testimony
taken the morning of trial. Specifically, Dilts’s counsel attempted to use
portions of these prior statements to question K.D. about whether she was
facing toward or away from Dilts when he molested her and whether or not
Dilts was wearing a condom at that time. When Dilts’s counsel tried to
impeach K.D. with one of her specific statements from the CAC interview, the
State objected and argued that, under Evidence Rule 106, K.D.’s entire
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statement should be introduced into evidence. At that point, the parties agreed
that the CAC interview would be later introduced and played for the jury but
with a redaction of the portions of the interview that contained allegations that
Dilts had molested K.D. in Kentucky and had molested K.D.’s sibling.
Thereafter, the parties finished their examinations of K.D., and the State
presented other witnesses, including Dilts’s estranged wife, Samantha, who
corroborated K.D.’s testimony that Dilts had a bump on his penis.
[21] At the end of this second day of trial, the State informed the trial court about its
intention to introduce and play the CAC interview the following day, and it
again indicated that the video would need to be redacted. The trial court
released the jury for the day and conducted a hearing regarding the videotaped
CAC interview. The State told the trial court that it was working with Dilts’s
attorneys to redact portions of the CAC interview that referenced the unrelated
molestation allegations against Dilts. After the prosecutor stated that both
parties wanted the CAC interview admitted, Dilts’s counsel agreed and stated
that the parties would “figure . . . out” the redaction issue. (Tr. 613).
[22] The following day, before resuming the trial, the trial court and the parties
again discussed the CAC redaction issue. The parties had agreed that the
Kentucky and sibling molestation allegations should be redacted from the 103-
page CAC interview transcript and video but disagreed on the inclusion of four
pages (pages 91-95) from K.D.’s statement. Dilts argued that some of the
statements contained on these pages could lead the jury to believe that there
were other allegations of abuse. The trial court acknowledged that some of the
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details of K.D.’s CAC interview on the disputed pages were inconsistent with
her trial testimony. The trial court, however, found that the disputed pages did
not mention the allegations in Kentucky or involve K.D.’s sibling and ruled that
these pages would be admitted with the remainder of the CAC interview as
redacted by the parties.
[23] Thereafter, still outside of the jury’s presence, the State made an offer of proof
regarding its intention of presenting testimony regarding Dilts’s suicidal
ideation. The State argued that it should be allowed to present evidence that
Dilts did not show up to the CHINS hearing because he had suicidal thoughts
and was hospitalized. Asserting that this was an issue of first impression in
Indiana, the State presented supporting case law from other jurisdictions3 and
argued that the trial court should engage in a Rule 403 balancing test to
determine whether the evidence was admissible. The State argued that the
evidence was probative because evidence of a suicide attempt was equivalent to
evidence of flight, both of which were evidence of the consciousness of guilt.
The State contended that the evidence was not prejudicial because Dilts could
argue against the weight of the evidence by arguing that there were other
reasons why a person would attempt suicide. The State pointed out that Dilts’s
two attorneys had already done so during voir dire when they discussed reasons
other than guilt associated with suicide. Dilts, on the other hand, argued that
3
The State submitted State v. Orozco, 708 S.E.2d 227 (S.C. Ct. App. 2011), reh’g denied, cert. granted, and
Aldridge v. State, 494 S.E.2d 368 (Ga. Ct. App. 1997). The State also submitted an Indiana case in support of
the proposition that flight could be considered by a jury as evidence of guilt.
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the State’s proposed evidence would be prejudicial because Dilts had not
attempted to commit suicide and because his hospitalization had occurred
before he was charged with the crimes at issue. Dilts also argued that evidence
of suicide should be excluded because it was a prior bad act that was
impermissible to prove the offenses. The trial court ruled that it would allow
the State to present “evidence of the attempted suicide.” (Tr. 660-61). When
ruling on the admissibility of the evidence, the trial court reasoned that Indiana
allows evidence of conduct showing consciousness of guilt and that Dilts’s
attorneys were aware of the evidence because they raised it during voir dire.4
The trial court also stated that it had relied upon the South Carolina case
submitted by the State and the State’s offer of proof that Dilts’s was aware of
allegations against him at the time.
[24] When the trial court resumed the jury trial, the State called Dilts’s sister-in-law,
Danielle Dilts (“Danielle”), to the stand. Danielle testified that, in September
2013, she was in the courthouse parking lot, when she saw Dilts’s girlfriend,
Rutledge, talking to Dilts on the phone. Danielle testified that she talked on the
phone to Dilts—who was “upset[,]” crying, and “devastated”—while Rutledge
tried to phone someone “to get help to get to where [Dilts] was located.” (Tr.
665). Danielle testified that she “was in fear that [Dilts] was in a bad way,” and
she feared that he would attempt suicide “because of everything leading up to
4
The trial court stated that it was not basing its ruling upon a finding that Dilts had opened the door to such
evidence.
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that.” (Tr. 667). Danielle also testified that Dilts was then taken by police
escort and voluntarily admitted to a community mental health center. Dilts did
not object to this relevant portion of Danielle’s testimony.5
[25] Subsequently, the State called Detective Vance as a witness so that it could
introduce and publish the CAC interview, State’s Exhibit 6, to the jury. Before
the detective took the stand, Dilts’s counsel stated that Dilts “ha[d] to make an
objection to the video being played at all” based on Tyler v. State, 903 N.E.2d
463 (Ind. 2009), which he asserted held that allowing live testimony and a
recorded statement was impermissible because the admission of both would
result in vouching and bolstering. (Tr. 673). The State questioned the timing of
Dilts’s bolstering argument and argued that Tyler did not apply because the
CAC videotaped interview contained inconsistencies from K.D.’s trial
testimony. The State also asserted that the CAC video should be admitted
because Dilts had opened the door to its admission by bringing out statements
from the video during K.D.’s cross-examination. The trial court stated that it
“st[ood] by the order out of the child hearsay hearing” and ruled that the CAC
video was admissible evidence. (Tr. 675).
[26] The State then called Detective Vance to the stand and moved to admit the
video. Dilts did not object, and the trial court admitted the CAC interview into
evidence and began to play the video for the jury. At some point during the
5
Dilts raised hearsay objections to other portions of Danielle’s testimony.
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publication of this exhibit, Dilts’s counsel approached the bench to make a
motion. The trial court stopped the video and released the jury for a recess.
Dilts’s counsel stated that he had planned to object to something he thought he
heard during the playing of the video, but he informed the trial court that he
was withdrawing the objection. The trial court expressed it displeasure with
Dilts’s interruption, stating that “[a] motion such as that made during a
publication of an exhibit that’s already been admitted obviously is a material
interruption in the trial.” (Tr. 679-80).
[27] Then, upon the State’s request, the trial court delayed playing the remainder of
the CAC video so that the State could present testimony from Dr. Bennett, who
had a scheduling issue. Later, after the State’s last witness, the parties
discussed—outside the presence of the jury—the continuation of playing the
CAC video. The prosecutor informed the trial court that the parties had
“agreed on a restarting point” for the video and that the remaining duration
was approximately seventy minutes. (Tr. 774). When the prosecutor requested
that the video not be interrupted, Dilts’s attorney “apologize[d]” and stated that
he “want[ed] to be safe with this thing[.]” (Tr. 775).
[28] Upon reconvening the jury following a lunch break, the State completed
publication of the CAC interview to the jury and then rested. (Tr. 778). Dilts’s
attorney then stated that he had “grave concerns about the video” and began
discussing “references” made in the video. (Tr. 778, 779). The trial court
removed the jury from the courtroom and then stated:
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The Court notes for the record that the State has rested. We’re
outside the presence of the jury.
[Dilts’s counsel] began to make an objection to the Child
Advocacy Center video. The Court does want to make clear for
the record that what’s been admitted as State’s Exhibit 5 is the
transcript of the Child Advocacy Center interview. Beginning
early this morning in chambers and then throughout the
morning, there was a lengthy hearing regarding this issue. The
parties -- What’s highlighted in State’s Exhibit 5, the parties
agreed that it would be redacted. The Court has carefully
listened to the video and it was redacted and was not shown to
the jury.
There was an objection by defense counsel for page 91 through
95, and the Court held a hearing on that, overruled the objection,
and allowed pages 91 through 95 to be published to the jury.
So the Court feels that this issue has already been ruled upon,
but, [Dilts’s counsel], if you wish to make a further objection for
the record, you may.
(Tr. 780-81). Dilts’s counsel started to list instances in the video to which he
objected, but he then acknowledged that he was making “the same objection”
as he had previously made. (Tr. 782). The trial court then stated:
Okay. The Court notes the defense has the same continuing
objection, which the parties agreed to everything except for 91
through 95 pages. The Court has already ruled upon that, it’s
been published to the jury, so the Court finds at this point a
continuing objection is noted but untimely.
(Tr. 782-83). The State then added that it “want[ed] to point out for the record
that . . . the State did not bring up the content of the CAC interview until the
defense brought it up during [Dilts’s] cross-examination” and that it was “the
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State’s position [that] he opened the door to the entire CAC interview by raising
it on cross-examination.” (Tr. 783).
[29] Thereafter, Dilts moved for judgment on the evidence, which the trial court
denied. Dilts then requested that the trial court dismiss Count II, arguing that:
The evidence that’s been presented is that these allegations are --
the factual allegations behind the two charging informations are
identical and, therefore, having two counts of child molest – the
second count is redundant, Your Honor. There’s no evidence
that one count is alleged to have occurred at a different time than
the other. They are identical in nature, they are identical in time,
and, therefore, we would ask that Count No. 2 be dismissed.
(Tr. 786-87). The State responded that the two charges involved the two
separate acts of sexual intercourse and deviant sexual conduct, and the trial
court denied Dilts’s motion to dismiss Count II. Dilts then rested.
[30] During the State’s rebuttal closing argument, the prosecutor discussed Dilts’s
failure to appear at the CHINS hearing, stating that he did not appear for the
hearing because “he was admitted to [a facility] apparently on some discussion
of killing himself.” (Tr. 876). The State subsequently argued that “[t]hat’s
evidence of guilt” and then stated that “[n]ot everyone that kills himself is guilty
of something[.]” (Tr. 876). At that point, Dilts’s counsel objected, without
specifying a ground for the objection, and the trial court overruled the
objection. Following closing arguments, the jury found Dilts guilty as charged.
[31] At sentencing, Dilts made no further argument regarding the dismissal of his
guilty verdict under Count II. However, when sentencing Dilts, the trial court
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discussed his two child molestation convictions. The trial court stated, in
relevant part:
Now, the Court has considered the nature of the criminal offense.
The weeklong jury trial, the testimony that the jury heard was
that [K.D.], there was insertion of the defendant’s penis, that he
licked her vaginal area, that there was finger insertion over a
period of time when she was nine to 11 years old. That went
from January 2011 to August of 2013.
*****
So those were the facts that the jury made the determination that
[Dilts] was guilty of Count 1, which was the sexual intercourse,
and Count 2, the deviant sexual conduct, which was the --
basically the licking of the vaginal area.
*****
. . . Again, it’s [K.D.’s] father. The charged time period, she was
between nine and eleven years old. The testimony was that this
happened on numerous occasions where there was the oral,
digital, and penis penetration.
*****
The Court wants to make perfectly clear, obviously there was a
weeklong jury trial where a jury determined that Mr. Dilts did
molest his daughter [K.D.] . . .
(Tr. 980-985). After discussing the two separate acts that constituted Dilts’s
convictions, the trial court vacated Dilts’s child molesting conviction under
Count II, stating:
The Court vacates the conviction for Count 2. That was the oral
child molestation. The jury found guilty of both. Under the
double jeopardy analysis, since it was charged during the same
period of time, the incidents occurred rather simultaneously, the
Court vacates the conviction for Count 2, does impose sentence
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on Count 1, child molesting, being sexual intercourse by an
individual 21 years or older with a person under the years of 12
years.
(Tr. 986-87). The trial court then imposed a thirty-six (36) year sentence for
Dilts’s Class A felony child molesting under Count I and determined that he
was a “credit-restricted felon under Indiana law.” (Tr. 987). Dilts now appeals
his conviction under Count I, and the State cross-appeals the trial court’s ruling
that vacated Dilts’s conviction under Count II.
Decision
1. Appeal Issue – Admission of Evidence
[32] Dilts argues that the trial court abused its discretion by admitting the following
evidence at trial: (1) testimony regarding Dilts’s suicidal ideation; and (2)
K.D.’s videotaped CAC interview.
[33] Before we address Dilts’s arguments, we note that the admission and exclusion
of evidence falls within the sound discretion of the trial court, and we review
the admission of evidence only for an abuse of discretion. Wilson v. State, 765
N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs when the trial
court’s decision is clearly against the logic and effect of the facts and
circumstances before it. Conley v. State, 972 N.E.2d 864, 871 (Ind. 2012), reh’g
denied.
A. Suicidal Ideation
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[34] Dilts first argues that the trial court abused its discretion by admitting testimony
regarding his suicidal ideation. Dilts sets forth multiple arguments in regard to
this issue. First, he acknowledges that other jurisdictions allow evidence of a
suicide attempt to show consciousness of guilt, but he contends that the
testimony should not have been admitted because he had only suicidal ideation,
not a suicide attempt. Dilts also contends that the admission of the testimony
should be reviewed under Evidence Rule 404(b). He asserts that “his suicidal
thoughts [were] evidence of a wrongful or bad act because the State framed his
mental state as [his] avenue to escape imprisonment for the commission of his
crime.” (Dilts’s Br. 11). Next, he argues that the testimony should have been
excluded under Evidence Rule 402 because his suicidal ideation was not
relevant to the molestation accusations.6 Finally, Dilts argues that the
testimony was prejudicial and that this prejudice outweighed its probative
value.7
[35] The State argues that the trial court did not abuse its discretion by admitting the
testimony regarding Dilts’s suicidal ideation because it was relevant to prove
consciousness of guilt. The State points out that Dilts was aware of the child
molesting allegations against him, which had led to a CHINS proceeding, and
6
In support of this argument, Dilts cites to Cardine v. State, 475 N.E.2d 696 (Ind. 1985) and Kien v. State, 782
N.E.2d 398 (Ind. Ct. App. 2003), reh’g denied, trans. denied. Dilts admits that “neither Kien nor Cardine are
dispositive of [his] case” but argues that these cases show that Indiana appellate courts are “reluctan[t] to
inject a defendant’s suicidal thoughts into evidence in a criminal trial.” (Dilts’s Br. 13) (emphasis of case
names added).
7
For this final argument, he does not cite to Evidence Rule 403 even though such an argument falls under
that rule.
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that he had failed to appear for the CHINS hearing because he was suicidal and
admitted to a facility. The State argues that “the circumstances and timing of
the event shows a sufficient connection between Dilts’ actions and the
wrongdoing alleged regarding KD to support the trial court’s decision to allow
the jury to consider whether the evidence proved a consciousness of guilt.”
(State’s Br. 15). Additionally, the State asserts that Dilts failed to show that the
evidence should have been excluded under Rule 403 because Dilts did not show
that he was unfairly prejudiced by it, especially where his counsel had brought
up the matter during voir dire. The State further contends that, even if this
evidence of suicide were not admissible, Dilts’s counsel’s discussion of it during
voir dire opened the door to such testimony. Finally, the State asserts that the
admission of the testimony would be, at the very least, considered to be
harmless error because there was substantial evidence of Dilts’s guilt.
[36] The testimony that Dilts challenges on appeal was presented by Dilts’s sister-in-
law, Danielle, whom the State called as a witness. Danielle testified that, on
the day of the September 2013 CHINS hearing, she had spoken to Dilts, who
was “upset[,]” crying, and “devastated[.]” (Tr. 665). Danielle further testified
she feared that Dilts was going to attempt suicide and that he was admitted to a
mental health facility that day.
[37] While the parties have presented specific arguments regarding whether or not
there was any error in the admission of this testimony, they both fail to mention
that Dilts did not make a contemporaneous objection when the testimony was
offered and admitted at trial. Nevertheless, the record reveals that—before the
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State called Danielle to the witness stand and outside the presence of the jury—
the parties argued about whether such testimony should be admitted, and the
trial court ruled that it would allow the testimony. Dilts, however, did not
object to this specific testimony at the time it was actually presented during
trial, let alone offer an objection that mirrors his arguments raised on appeal.
Thus, he has waived review of this issue on appeal. See Brown v. State, 929
N.E.2d 204, 207 (Ind. 2010) (holding that a defendant’s failure to lodge a
contemporaneous objection at the time evidence is introduced at trial results in
waiver of the error on appeal), reh’g denied. See also Stephenson v. State, 29
N.E.3d 111, 118 (Ind. 2015) (explaining that the failure to timely object to the
admission of evidence will “procedurally foreclose” the error on appeal);
Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000) (“The failure to make a
contemporaneous objection to the admission of evidence at trial results in
waiver of the error on appeal.”); Tinnin v. State, 416 N.E.2d 116, 118 (Ind.
1981) (explaining that a defendant “must make his objection to a question
before the answer is given in order to preserve the issue for appeal”).
[38] Despite the lack of objection, “[a] claim that has been waived by a defendant’s
failure to raise a contemporaneous objection can be reviewed on appeal if the
reviewing court determines that a fundamental error occurred.” Brown, 929
N.E.2d at 207. “The fundamental error exception is ‘extremely narrow, and
applies only when the error constitutes a blatant violation of basic principles,
the harm or potential for harm is substantial, and the resulting error denies the
defendant fundamental due process.’” Id. (quoting Mathews v. State, 849 N.E.2d
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578, 587 (Ind. 2006)). “The error claimed must either ‘make a fair trial
impossible’ or constitute ‘clearly blatant violations of basic and elementary
principles of due process.’” Id. (quoting Clark v. State, 915 N.E.2d 126, 131
(Ind. 2009), reh’g denied). Dilts, however, does not offer a fundamental error
argument, and we will not provide one for him.8 See Ind. App. R. 46(A)(8)(a).
Therefore, Dilts has waived appellate review of this issue, and we will save for
another day the issue regarding whether a defendant’s suicidal ideation is
admissible as evidence of consciousness of guilt. 9
B. Videotaped Interview
[39] Next, we address Dilts’s argument that the trial court abused its discretion by
admitting State’s Exhibit 6, the redacted version of K.D.’s videotaped CAC
interview. Dilts argues that the trial court should not have allowed the State to
8
We note that, given the record before us—including the evidence presented supporting his convictions (e.g.,
K.D.’s testimony and the medical evidence showing a significant tear to K.D.’s hymen) and Dilts’s attorneys’
voir dire references to evidence of his suicidal ideation and alternative reasons for such ideation—we fail to
see how the admission of Danielle’s testimony regarding Dilts’s suicidal ideation made a fair trial impossible
or resulted in fundamental error.
9
We, however, recognize that our Indiana Supreme Court—in Stephenson v. State, 29 N.E.3d 111 (Ind.
2015)—recently discussed the admissibility of a defendant’s suicide attempt. There, the defendant—two days
after the police had questioned him about the crime of murder—attempted suicide and wrote a note in which
he disavowed any involvement in the crime. Stephenson, 29 N.E.3d at 115. Evidence of the defendant’s
suicide attempt and suicide note were admitted into evidence at trial, and the defendant objected to the
evidence. Id. at 119. On appeal, the State argued that the suicide attempt evidence was relevant to the
defendant’s motive and consciousness of guilt. Id. at 119-20. The Stephenson Court explained that prior
Indiana case law had “not announce[d] a general proscription” against suicide attempt evidence. Id. at 119.
The Court held that evidence was relevant to the issue of motive but “decline[d] to find that the mere
existence of an attempted suicide, without more, is relevant evidence of a person’s guilty conscience about
committing a charged crime, especially a charged crime which the person expressly disavows when the
suicide is attempted.” Id. at 120.
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play the videotaped statement because K.D. had already testified during the
trial. He contends that the videotaped statement improperly vouched for
K.D.’s testimony. Dilts also asserts that admission of the videotaped CAC
interview was in violation of the PPS, INDIANA CODE § 35-37-4-6, and the rule
set out in Tyler v. State.
[40] As with the previous evidentiary challenge, Dilts fails to demonstrate that he
made a timely objection when this challenged evidence was admitted at trial.
As revealed in the Facts Section above, the parties extensively discussed this
CAC videotaped interview, including the relevant redactions cooperatively
made by the parties and Dilts’s Tyler objection. These discussions, however,
were prior to the time when the State called its sponsoring witness for this
exhibit. When Detective Vance was on the stand and the State offered the
CAC videotaped interview as State’s Exhibit 6, Dilts did not raise a
contemporaneous objection to the admission of the exhibit. While Dilts’s
counsel raised an objection during the publication of the exhibit and then
withdrew it, such action was too late. “The requirement that evidentiary
objections be made timely is for the purpose of permitting a trial court to take
appropriate preventative or corrective action during trial.” Stephenson, 29
N.E.3d at 119. Because Dilts did not object to State’s Exhibit 6 when it was
admitted, he has waived appellate review of this issue. See Hartman v. State, 615
N.E.2d 455, 459-60 (Ind. Ct. App. 1993) (explaining that a party must make an
objection to an exhibit when it is offered and before it is admitted into evidence
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and that an objection made after the evidence is admitted is untimely and
unavailable for argument on appeal), reh’g denied.
2. Cross-Appeal Issue – Vacated Child Molesting Conviction
[41] The State cross-appeals the trial court’s determination vacating Dilts’s Class A
felony child molesting conviction in Count II.
[42] During the sentencing hearing, neither the State nor Dilts made any reference
to the dismissal of Dilts’s guilty verdict under Count II. However, the trial
court, after discussing the two separate acts that constituted Dilts’s convictions,
vacated Dilts’s child molesting conviction under Count II, stating:
The Court vacates the conviction for Count 2. That was the oral
child molestation. The jury found guilty of both. Under the
double jeopardy analysis, since it was charged during the same
period of time, the incidents occurred rather simultaneously, the
Court vacates the conviction for Count 2, does impose sentence
on Count 1, child molesting, being sexual intercourse by an
individual 21 years or older with a person under the years of 12
years.
(Tr. 986-87).
[43] The State contends that the trial court vacated this conviction based on either
double jeopardy principles or the continuing crime doctrine, and the State
asserts that such action was improper under either theory. We agree.
[44] First, as we review the State’s double jeopardy argument, we note that the
Indiana Double Jeopardy Clause provides, in relevant part, that “No person
shall be put in jeopardy twice for the same offense.” IND. CONST. art. I, § 14.
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“Indiana’s Double Jeopardy Clause was intended to prevent the State from
being able to proceed against a person twice for the same criminal
transgression.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).
Consequently, two or more offenses are the “same offense” and violate the state
double jeopardy clause if, “with respect to either the statutory elements of the
challenged crimes or the actual evidence used to convict, the essential elements
of one challenged offense also establish the essential elements of another
challenged offense.” Id. The Double Jeopardy Clause is violated under the
actual evidence test if there is “a reasonable possibility that the evidentiary facts
used by the fact-finder to establish the essential elements of one offense may
also have been used to establish the essential elements of a second challenged
offense.” Id. at 53. “[A] ‘reasonable possibility’ that the jury used the same
facts to reach two convictions requires substantially more than a logical
possibility.” Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008). “Rather,
‘reasonable possibility’ turns on a practical assessment of whether the jury may
have latched on to exactly the same facts for both convictions.” Id. See also
Griffin v. State, 717 N.E.2d 73, 89 (Ind. 1999) (“To establish that two offenses
are the same offense under the actual evidence test, the possibility must be
reasonable, not speculative or remote.”), cert. denied.
[45] Here, the parties do not dispute that the statutory elements and actual evidence
used to convict Dilts of the two counts of child molesting were distinct. Indeed,
in Count I, the State charged Dilts with Class A felony child molesting based on
his act of engaging in sexual intercourse with K.D. between January 2011 and
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August 2013. In Count II, the State charged Dilts with Class A felony child
molesting based on his act of engaging in deviate sexual conduct with K.D.
between the same time period. The State presented evidence that Dilts
penetrated K.D.’s vagina with his penis, see I.C. § 35-31.5-2-302 (defining
sexual intercourse), and it presented evidence that Dilts penetrated K.D.’s
vagina with his fingers on multiple occasions and licked her vaginal area on one
occasion. See I.C. § 35-31.5-2-94 (defining deviate sexual conduct).10 Because
Dilts’s two offenses did not have the same statutory elements and because there
is not a reasonable possibility that the jury used the same evidentiary facts to
establish the essential elements of the offenses set out in Count I and Count II,
the entry of judgment of conviction on both convictions would not have
violated the Indiana Double Jeopardy Clause. Accordingly, we conclude that
the trial court erred by vacating Dilts’s conviction in Count II based on double
jeopardy principles.
[46] Turning to the State’s argument regarding the continuing crime doctrine, we
note that—during the time period that this appeal was being briefed—our
Indiana Supreme Court clarified the application of this doctrine in Hines v. State,
30 N.E.3d 1216 (Ind. 2015). Specifically, our supreme court explained:
The continuous crime doctrine is a rule of statutory construction
and common law limited to situations where a defendant has
been charged multiple times with the same offense. “The
10
Effective July 1, 2014, after commission of Dilts’s crimes, this statute was repealed by P.L. 158-2013, sec.
366.
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continuous crime doctrine does not seek to reconcile the double
jeopardy implications of two distinct chargeable crimes; rather, it
defines those instances where a defendant’s conduct amounts
only to a single chargeable crime.” Boyd v. State, 766 N.E.2d 396,
400 (Ind. Ct. App. 2002), trans. not sought, see Pierce v. State, 761
N.E.2d 826, 830 (Ind. 2002) (recognizing “a series of rules of
statutory construction and common law that are often described
as double jeopardy, but are not governed by the constitutional
test set forth in Richardson ”). The Legislature, not this Court,
defines when a criminal offense is “continuous,” e.g. not
terminated by a single act or fact but subsisting for a definite
period and covering successive, similar occurrences. We have
applied the continuous crime doctrine in the context of felony
murder and robbery, confinement, and kidnapping; situations
where the crime charged, as defined by statute, was
“continuous.”
[47] Hines, 30 N.E.3d at 1219-20 (footnotes omitted). The Hines Court held that the
continuous crime doctrine “applies only where a defendant has been charged
multiple times with the same ‘continuous’ offense.” Id. at 1220. The Hines
Court held that the continuous crime doctrine did not apply to the facts of that
case because the defendant, who was convicted of criminal confinement and
battery, was not convicted of multiple charges of criminal confinement, nor
multiple charges of battery. Id. at 1220-1221. The Court also reasoned that
battery was not a crime for which all of the elements necessary to impose
criminal liability were also elements found in criminal confinement or vice
versa. Id. at 1221. Thus, the Hines Court concluded that criminal confinement
and battery were “two distinct chargeable crimes” to which the continuous
crime doctrine did not apply. Id.
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[48] Here, Dilts was charged with two counts of Class A felony child molesting;
however, one count was for sexual intercourse and the other was for deviate
sexual conduct. Furthermore, the evidence presented showed that Dilts
engaged in these distinct acts on different days.
[49] Here, Dilts—recognizing the Hines Court’s clarification of the continuous crime
doctrine—does not specifically repudiate the State’s argument that the trial
court erred by vacating Dilts’s child molesting conviction under Count II
pursuant to the continuous crime doctrine. Instead, Dilts argues that: (1) we
should review the issue under an abuse of discretion standard; and (2) under
that standard, we should hold that the trial court did not abuse its discretion by
vacating Dilts’s Count II conviction under the doctrine because, at the time the
trial court vacated the conviction, there was a split of authority in our Court
regarding the doctrine. Specifically, he contends that “[g]iven that there were
two ways of looking at Indiana’s double jeopardy analysis for continuing crimes
when Dilts was sentenced, it cannot be said that the court abused its discretion
in choosing to rely on the analysis set forth in Buchanan [v. State, 913 N.E.2d
712 (Ind. Ct. App. 2009), trans. denied].” (Dilts’s Reply Br. 8). We disagree.
[50] In Hines, our supreme court disagreed with Buchanan “[t]o the extent Buchanan
st[oo]d for the proposition that the continuous crime doctrine may be judicially
extended to two distinct criminal offenses[.]” Hines, 30 N.E.3d at 1220.
Moreover, “‘[w]here the issue presented on appeal is a pure question of law, we
review the matter de novo.’” Id. at 1219 (quoting State v. Moss–Dwyer, 686
N.E.2d 109, 110 (Ind. 1997)). Whether convictions violate double jeopardy is a
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pure question of law, which we review de novo. Rexroat v. State, 966 N.E.2d 165,
168 (Ind. Ct. App. 2012), trans. denied. Thus, reviewing the specific facts of this
case under that standard, we conclude that Dilts’s two child molesting
convictions—one for sexual intercourse and one for deviate sexual conduct that
occurred on different days—were “two distinct chargeable crimes” to which the
continuous crime doctrine did not apply.11 See, e.g., Williams v. State, 755
N.E.2d 1183, 1186 (Ind. Ct. App. 2001) (holding that the defendant perpetrated
two separate offenses of resisting law enforcement and that the trial court
properly entered convictions for both counts where the defendant fled from
officers after being commanded to stop and also forcibly resisted those officers
when they caught up with him and inflicted bodily injury upon them).
Accordingly, the trial court erred by concluding that the continuous crime
doctrine precluded the imposition of judgment of conviction on Dilts’s Count II
Class A felony child molesting conviction.
[51] Based on our determination that the trial court erred by vacating Dilts’s
conviction under Count II, we remand with instructions for the trial court to
enter judgment of conviction for this conviction under Count II and to hold a
new sentencing hearing to sentence Dilts for this Count II conviction.
[52] Affirmed in part, reversed in part, and remanded.
11
Indeed, our conclusion would be so whether under the de novo standard or the standard suggested by
Dilts.
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Crone, J., and Brown, J., concur.
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