Robert Seal v. State of Indiana , 38 N.E.3d 717 ( 2015 )

Jul 15 2015, 5:32 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas G. Godfrey Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Seal, July 15, 2015
Appellant-Defendant, Court of Appeals Case No. 48A02-
1410-CR-775
v.
Appeal from the Madison Circuit
Court
State of Indiana,
The Honorable Dennis D. Carroll,
Appellee-Plaintiff Judge
Case No. 48C06-1308-FA-1546
Crone, Judge.
Case Summary
[1] Robert Seal appeals his convictions for two counts of class A felony child
molesting, two counts of class B felony incest, and one count of class B felony
sexual misconduct with a minor. He argues that his federal and state
constitutional rights were violated by the State’s failure to preserve audio
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recordings of his victims’ interviews, that the trial court abused its discretion in
instructing the jury that time is not an element of the offenses, and that his
conviction for class B felony sexual misconduct with a minor should have been
merged with one of the class A felony child molesting convictions because the
conduct supporting those convictions constitutes a single transaction under the
continuous crime doctrine. We conclude that no violation of Seal’s
constitutional rights occurred, the trial court did not abuse its discretion in
instructing the jury, and the continuous crime doctrine is inapplicable.
Therefore, we affirm.
Facts and Procedural History
[2] From 2007 to 2013, Seal lived with his two daughters, R.S. and R.M.S., in a
two-bedroom trailer in Madison County. During some of that time, two
younger children lived with them, Seal’s son R.W.S. and his stepdaughter J.H.
R.S. and R.M.S. slept with Seal in his bedroom with the door locked. R.W.S.
and J.H. slept in either the living room or the second bedroom. R.S. and
R.M.S. were home schooled, and the two younger children went to public
school.
[3] Beginning in July 2007, when R.S. was ten years old, until February 2013,
when she was sixteen, Seal touched her breasts, bottom, and vagina with his
hand and engaged in sexual intercourse and oral sex with her on a regular basis.
Beginning in 2009, when R.M.S. was ten years old, Seal had sexual intercourse
and oral sex with her. These acts took place in Seal’s bedroom with the door
locked. Both girls were present and witnessed Seal have sexual intercourse and
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oral sex with the other. Sometimes Seal placed a camera on a tripod and
recorded videos of their sexual activities. Seal told the girls that they were
married to him, and they felt that their relationship with their father was like
that of husband and wife.
[4] In June 2013, Seal planned to marry a woman, after which she and her eight-
year-old daughter would move in with him. R.S. and R.M.S. were concerned
about the eight-year-old’s safety if she were to live with them, so they told the
woman about the sexual abuse. When Seal found out from the woman what
the girls had told her, he became angry, argued with the girls, and left the trailer
with his laptop and his moped.
[5] The girls were scared that Seal would return and hurt them, so they called 911.
When the police arrived, the girls were “frantic, they were upset, crying … they
were screaming, yelling, talking about they were in fear of their life, afraid that
they were going to be killed by the father.” Tr. at 124. An officer spoke
separately with each girl for five to ten minutes in a patrol car to find out why
they called 911. He attempted to create and download audio recordings of
these conversations, but later the police were unable to find the recordings. The
officer did not know why the recordings were lost. The officer prepared a
written report of the content of his conversations with the girls that he
forwarded to the detective who prepared the probable cause affidavit. Id. at
129-30. Later that day, the girls were brought to the police station, where they
provided recorded statements.
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[6] A police officer called Seal and asked him to come to the station, but Seal said
that he was upset because his moped had run out of gas, he did not know where
he was, and he was not in the right frame of mind to meet or talk with police.
Seal was arrested eight months later in Fort Wayne.
[7] About a week after the 911 call, the detective conducted follow-up interviews
with the girls at the station. Although the police attempted to video record
these follow-up interviews, for unknown reasons the recordings failed to
capture the audio. However, the detective prepared a written summary of the
interviews.
[8] The State charged Seal with class A felony child molesting of R.S., class B
felony sexual misconduct with R.S., class B felony incest with R.S., class A
felony child molesting of R.M.S., and class B felony incest with R.M.S. At
trial, the State tendered an instruction to clarify that time is not an element of
the offenses. Seal objected. The trial court suggested modifying the instruction
to explain that time is not an element but the victim’s age at the time of the
offense is an element. The trial court gave this modified instruction over Seal’s
objection.
[9] The jury found Seal guilty as charged. The trial court sentenced Seal to an
aggregate term of seventy-two years. He appeals.
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Discussion and Decision
Section 1 - Seal’s federal and state constitutional rights were
not violated by the State’s failure to preserve audio recordings
of the victims’ interviews.
[10] Seal contends that the State’s failure to preserve the audio recordings of his
daughters’ interviews in the patrol car immediately following their 911 call and
their follow-up interviews a week later violated his federal and state
constitutional rights. 1 In essence, Seal’s argument is that the State failed to
preserve evidence, which is generally analyzed as a due process issue.
When determining whether a defendant’s due process rights have been
violated by the State’s failure to preserve evidence, we must first decide
whether the evidence is potentially useful evidence or material
exculpatory evidence.
Evidence is materially exculpatory if it possesses an exculpatory value
that was apparent before the evidence was destroyed, and is of such a
nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means. Exculpatory evidence
is defined as evidence tending to establish a criminal defendant’s
innocence. A prosecutor’s duty to preserve exculpatory evidence is
limited to evidence that might be expected to play a significant role in
the defendant’s defense. Failure to preserve material exculpatory
evidence violates due process regardless of whether the State acted in
good or bad faith.
Evidence is merely potentially useful if no more can be said than that it
could have been subjected to tests, the results of which might have
exonerated the defendant. The State’s failure to preserve potentially
1
In broad strokes, Seal cites the Sixth and Fourteenth Amendments to the United States Constitution and
Article 1, Sections 12 and 13 of the Indiana Constitution, asserting that he was denied effective assistance of
counsel, the right to effective cross-examination, the right to present a defense, and due process.
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useful evidence does not constitute a violation of due process rights
unless the defendant shows bad faith on the part of the police.
State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010) (citations, quotation
marks, and brackets omitted).
[11] With regard to the circumstances of this case, two facts are significant. First,
there is no constitutional or statutory requirement that the police record
interviews with victims. 2 Second, the State attempted to record the audio of the
interviews, and Seal does not contend, nor is there any evidence, that the State
intentionally sabotaged or destroyed the audio recordings. Therefore, even if
we assumed that the content of the interviews contained potentially useful
evidence, there would be no due process violation because Seal cannot show
bad faith.
[12] However, Seal contends that it does not matter whether the State acted in good
faith or bad faith because the interviews contained materially exculpatory
evidence. According to Seal, the girls had many reasons to fabricate their story
and his “counsel could have shown the jury the manner in which [the girls]
were not telling the truth by using DVDs in court; and the jury could have
judged for itself whether to believe whether the victims’ explanations given at
trial were contrived or appeared reasonable.” Appellant’s Br. at 12. The
interviews were summarized in the police reports, and Seal directs to no
2
We have held that Article 1, Section 12 of the Indiana Constitution does not require the recording of
interrogations of the accused in places of detention. Gasper v. State, 833 N.E.2d 1036, 1041 (Ind. Ct. App.
2005), trans. denied.
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statements that tended to establish his innocence. The interviews do not strike
us as materially exculpatory evidence but rather as impeachment evidence.
[13] We conclude that Seal’s due process rights were not violated by the State’s
failure to preserve the audio recordings of the victims’ interviews. To the extent
that Seal asserts that his rights to effectively cross-examine the witnesses and to
present a defense were violated, we note again that the interviews were
summarized, both girls testified, and Seal fails to explain how the summaries
were inadequate to assist him in cross-examining the girls. Although he sets
forth numerous facts that he argues were relevant to the girls’ motives to
fabricate, he was not limited in his scope of cross-examining the girls with
regard to those facts. In short, we find no federal or state constitutional
violations in this regard.
Section 2 - The trial court did not abuse its discretion in
instructing the jury that time is not an element of the offenses.
[14] The manner of instructing the jury lies within the sound discretion of the trial
court, and we will reverse the trial court’s decision whether to give an
instruction only upon an abuse of that discretion. Gravens v. State, 836 N.E.2d
490, 493 (Ind. Ct. App. 2005), trans. denied (2006). “‘The purpose of jury
instruction is to inform the jury of the law applicable to the facts without
misleading the jury and to enable it to comprehend the case clearly and arrive at
a just, fair, and correct verdict.’” Fowler v. State, 900 N.E.2d 770, 773 (Ind. Ct.
App. 2009) (quoting Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001)). In
evaluating jury instructions on appeal, “this Court looks to whether the
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tendered instructions correctly state the law, whether there is evidence in the
record to support giving the instruction, and whether the substance of the
proffered instruction is covered by other instructions.” Short v. State, 962
N.E.2d 146, 150 (Ind. Ct. App. 2012).
[15] Seal challenges the following instruction:
Time is not an element of the crime of Child Molesting. If you
find that the evidence available to the State of Indiana does not permit
the State to specify the exact date of the offense, and if you find
beyond a reasonable doubt that the Defendant committed the offenses
within reasonable proximity to the date alleged, then the State has met
its burden of proof on the issue of the time of the offense.
Although time is not an element of the offenses charged, the
age of the victims at the time of the offenses charged is an element.
Appellant’s App. at 51; Tr. at 602.
[16] Seal appears to concede that the instruction is a correct statement of the law.
See Baker v. State, 948 N.E.2d 1169, 1174 (Ind. 2011) (“In general, the precise
time and date of the commission of a child molestation offense is not regarded
as a material element of the crime.”). He also does not argue that the evidence
does not support giving the instruction or that the substance of the instruction
was covered by other instructions. His argument is that the instruction was
more confusing than helpful and was unnecessary. Specifically, he asserts that
there is a conflict between “if you find … that the Defendant committed the
offenses within reasonable proximity to the date alleged, then the State has met
its burden of proof” and “the age of the victims at the time of the offenses
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charged is an element.” Appellant’s App. at 51. He contends that by
instructing the jury that all the State had to prove was that he committed the
offenses within a reasonable proximity to the dates charged, the jurors might be
misled into treating the dates as they related to the ages of the girls as
unimportant.
[17] Under the facts of this case, we cannot conclude that the jury was confused by
the instruction. Age is an element of all the offenses, and the instruction
unequivocally stated so. Based on the statute in effect when Seal committed the
offenses, for class A felony child molesting, the State was required to prove that
he performed or submitted to sexual intercourse or deviant sexual conduct with
a child who was under the age of fourteen. Ind. Code § 35-42-4-3. For class B
felony sexual misconduct with a minor, the State was required to prove that he
performed or submitted to sexual intercourse or deviant sexual conduct with a
child who was at least fourteen but less than sixteen. Ind. Code § 35-42-4-9.
For class B felony incest, the State was required to prove that he engaged in
sexual intercourse or deviant sexual conduct with another person who was
under the age of sixteen, when he knew that the other person was related to him
biologically as his child. Ind. Code § 35-46-1-3.
[18] In the charging information, the State did not allege that Seal committed the
offenses on specific dates. Rather, the State charged Seal with committing the
offenses within a time range. Appellant’s App. at 66-68. With regard to R.S.,
the State charged Seal with committing class A felony child molesting between
January 1, 2007, and November 3, 2010, when she was under fourteen. Id. at
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66. The State charged him with class B felony sexual misconduct with a minor
between November 4, 2010, and November 3, 2012, when R.S. was at least
fourteen but not more than sixteen. Id. R.S.’s age is important and affected the
felony level of the offenses. However, the evidence showed that Seal regularly
and frequently engaged in sexual intercourse and deviant sexual conduct with
R.S. throughout both time periods, well before and well after R.S.’s birthday.
This is not a situation where a defendant committed a single act which is
punishable as a different class of felony depending upon whether it occurred
before or after the victim’s birthday. See Barger v. State, 587 N.E.2d 1304, 1307
(Ind. 1992) (“The exact date becomes important only in limited circumstances,
including the case where the victim’s age at the time of the offense falls at or
near the dividing line between classes of felonies.”).
[19] As for R.M.S., the charging information alleged that Seal committed child
molesting and incest between November 3, 2009, and August 31, 2012. R.M.S.
was under the age of fourteen for the entire time as charged. Her age during
that time period was not a fact in dispute. Further, as with R.S., the evidence
showed that Seal committed multiple instances of sexual intercourse and
deviant sexual conduct.
[20] In closing argument the State explained the application of the instruction and
how the time period alleged in the charges was related to the victims’ testimony
and ages. Tr. at 555, 559-60. Given the charges and the evidence produced at
trial, we cannot conclude that the instruction confused the jury. Accordingly,
the trial court did not abuse its discretion in giving the instruction.
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Section 3 - The continuous crime doctrine does not apply.
[21] Although Seal concedes that he committed acts that comprise the offenses of
class A felony child molesting of R.S. and class B felony sexual misconduct
with R.S., he contends that the continuous crime doctrine applies to his
convictions and requires that the latter be merged with the former. 3 Both Seal
and the State assert that the continuous crime doctrine applies when “actions
which are sufficient in themselves to constitute separate criminal offenses may
be so compressed in terms of time, place, singleness of purpose, and continuity
of action as to constitute a single transaction.” Appellant’s Br. at 17 (citing
Nunn v. State, 695 N.E.2d 124, 125 (Ind. Ct. App. 1998)); Appellee’s Br. at 20
(citing a case that relied on Nunn). After this appeal was fully briefed, our
supreme court handed down Hines v. State, 30 N.E.3d 1216 (Ind. 2015), in
which it disapproved of Nunn’s phrasing of the doctrine, stating that it “too
broadly paraphrased precedent.” Id. at 1220. Our supreme court stated that the
“continuous crime doctrine applies only where a defendant has been charged
multiple times with the same ‘continuous’ offense.” Id. Specifically, the Hines
court stated,
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 continuous crime doctrine
does not seek to reconcile the double jeopardy implications of two
3
We observe that the continuous crime doctrine is distinct from the concept of an “episode of criminal
conduct,” which applies under Indiana Code Section 35-50-1-2 to limit the aggregate term of consecutive
sentences when the convictions are not for crimes of violence and the “offenses or a connected series of
offenses … are closely related in time, place, and circumstance.”
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distinct chargeable crimes; rather, it defines those instances where a
defendant’s conduct amounts only to a single chargeable crime. 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.” For
example, in Eddy v. State, [496 N.E.2d 24, 28 (Ind. 1986),] we
interpreted the statutory requirement that a homicide-robbery
transaction be continuous to encompass a transaction where all the
statutory elements of the robbery had been completed before the
commission of the homicide.
Id. at 1219-20 (footnotes, citations, and quotation marks omitted).
[22] The Hines court quoted at length from Eddy. In Eddy, the court interpreted the
phrase “while committing” as it was used in the statute defining felony murder.
496 N.E.2d at 27-28. At that time the statute provided, “A person who “kills
another human being while committing or attempting to commit [certain listed
felonies] commits murder, a felony.” Ind. Code § 35-42-1-1(2) (emphasis
added). The Eddy court rejected the defendant’s contention that the offense of
felony murder required that the homicide occur before all the statutory elements
of robbery were complete. 496 N.E.2d at 27-28. The Eddy court explained, “A
homicide and robbery are deemed to be one continuous transaction when they
are closely connected in time, place, and continuity of action.” Id. Thus, the
continuous crime doctrine was useful in determining whether the defendant’s
conduct constituted the single offense of felony murder by focusing on the scope
of the phrase “while committing.”
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[23] In contrast to Eddy, in which homicide and robbery were statutorily defined as
one crime if a person killed another human being while committing robbery,
the crimes in Hines were class C felony criminal confinement and class D felony
battery. The Hines court noted that the defendant “was not convicted of
multiple charges of criminal confinement, nor multiple charges of battery. Nor
is Battery a crime for which all of the elements necessary to impose criminal
liability are also elements found in Criminal Confinement, or vice versa.” 30
N.E.3d at 1221. The Hines court concluded that criminal confinement and
battery “are two distinct chargeable crimes to which the continuous crime
doctrine does not apply.” Id.
[24] Here, the evidence showed that Seal sexually molested R.S. multiple times both
before and after she turned fourteen. The molestation of R.S. before she turned
fourteen is one chargeable crime, and the molestation of R.S. after she turned
fourteen is a different chargeable crime. See Ind. Code § 35-42-4-3; 35-42-4-9.
Seal was not charged multiple times with the same offense. Under Hines, the
continuous crime doctrine does not apply.
[25] The extent to which Hines imposes new limitations upon the application of the
continuous crime doctrine has yet to be discerned. Regardless of whether Hines
imposes a more restrictive use of the doctrine or not, we note that even under
the broader application of the doctrine as articulated in Nunn, the doctrine
would not apply under the facts of this case. Seal’s multiple acts of molestation
committed over a five-year period cannot plausibly be considered “so
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compressed in terms of time, place, singleness of purpose, and continuity of
action as to constitute a single transaction.” Nunn, 695 N.E.2d at 125.
[26] Based on the foregoing, we affirm Seal’s convictions.
[27] Affirmed.
Brown, J., and Pyle, J., concur.
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