MICHAEL W. SLOAN, Appellant-Defendant,
STATE OF INDIANA, Appellee-Plaintiff
APPEAL FROM THE JOHNSON CIRCUIT COURT. The Honorable K. Mark Loyd, Judge. Cause No. 41C01-1106-FB-23.
ATTORNEY FOR APPELLANT: ANDREW J. BALDWIN, Baldwin Adams & Kamish, Franklin, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; MONIKA PREKOPA TALBOT, Deputy Attorney General, Indianapolis, Indiana.
BROWN, Judge. BARNES, J., concurs. BRADFORD, J., concurs in part and dissents in part with separate opinion.
Michael W. Sloan appeals his conviction and sentence for child molesting as a class A felony. Sloan raises two issues, which we revise and restate as:
I. Whether the trial court abused its discretion by excluding certain evidence; and
II. Whether the court abused its discretion in sentencing him.
We affirm in part, reverse in part, and remand.
FACTS AND PROCEDURAL HISTORY
In the early morning hours of June 23, 2011, K.W. and her friend J.W. were at Sloan's home. At the time, K.W., who was born on September 9, 1997, was thirteen years old, J.W. was nineteen or twenty years old, and Sloan, who was born on April 26, 1989, was twenty-two years old. At some point when K.W. was asleep on the couch, Sloan woke her up, carried her from the couch to his bed, removed her and his own clothing, and placed his penis inside her vagina. Sloan told K.W. that " if he got caught that he would tell them that he was drunk and [K.W.] raped him." Transcript at 87.
At approximately 7:00 p.m. on June 23, 2011, Sloan went to the Edinburgh Police Department and reported to Officer Dwayne Little " that he had been raped, and [Sloan] believed it was by his cousin, [K.W.]." Id. at 15. Sloan told Officer Little that he had been drinking the previous night, that he had met a Mexican male in the alley way who offered him a couple of beers, and that he consumed the beers and approximately three quarters of a fifth of vodka. Sloan stated that he went inside his residence and found J.W. and K.W. asleep on the couch, that he then went to sleep, and that " sometime overnight he got a weird feeling." Id. at 18. When further questioned, Sloan reported that " he believed that [the] weird feeling was him ejaculating." Id. at 19. Sloan stated that " it was really, really dark in his apartment" and that he " woke up when he had this weird feeling and he looked up and saw somebody getting off of him and walking towards the bathroom" and that " he was so tired that he went back to sleep, or passed out." Id. Sloan also reported that he woke up at approximately 9:30 a.m. and rushed to work, that " about 9:50ish  he felt  a sticky feeling," that he went to the bathroom to investigate the feeling, that he saw residue on his skin, and that he " thought maybe it had been an ejaculation." Id. at 20. Sloan stated that he had spoken to J.W., " who said that it wasn't her that had sex with him," and because only J.W. and K.W. were in his house, " he believed that it was his cousin, [K.W.]." Id. at 22.
The police picked up K.W. from Sloan's residence. K.W. told Officer Little that she had been dating Sloan for two and a half weeks, and she reported the facts above. Police collected the clothing of K.W. and Sloan and mouth swabs from K.W. and Sloan. K.W. was taken to the hospital for a sexual assault examination, and Sloan submitted to a sexual assault examination. Subsequent testing showed there were DNA mixtures found on K.W.'s underwear and on external genital swabs taken during K.W.'s examination and that Sloan could not be excluded as a contributor.
The State charged Sloan with child molesting as a class A felony in its amended information. At the jury trial, the State presented the testimony of K.W., Officer
Little, and a forensic analyst with the Indiana State Police consistent with the facts above. K.W. testified she had been dating Sloan for two and one-half weeks, that she was thirteen years old at the time of the offense, and that Sloan was awake the whole time they were having sex. When asked " did [Sloan] know how old you were," K.W. replied " [y]eah," and when asked " [h]ow did he know," she testified " [b]ecause we told him." Id. at 85. When asked " [w]hat did you tell him," K.W. testified " [t]hat I was thirteen (13)," and when asked " why did you tell him that," she said " [b]ecause he asked." Id. K.W. testified that she was five feet and one inch tall, weighed 103 pounds, and that she was no taller and weighed no more at the time of the offense. She also testified that Sloan was taller and bigger than her. She testified she did not scream out at the time of the offense because she was scared of Sloan. On cross-examination, K.W. indicated that no one had been smoking marijuana or spice that night. When asked if she had talked to Sloan's mother on the phone that night or the next day, K.W. answered " No," and when asked if she knew Sloan's mother, K.W. stated " No." Id. at 117. K.W. also stated that she did not talk to anyone on the telephone during the time she was at Sloan's house.
Following K.W.'s testimony, Sloan's counsel asked to approach the bench to address an issue outside the presence of the jury. Sloan's counsel indicated it was the intent of the defense to ask that K.W. be recalled for omitted questions regarding her date of birth and that " the Defense has now a rebuttal witness to here [sic] testimony, which was not disclosed and who was in the courtroom during the testimony of [K.W.]." Id. at 125. The State objected and argued that there was a separation of witnesses order and the proposed witness had heard the testimony of everybody who had been in court. The court asked the point which defense counsel wished to address on rebuttal, and defense counsel answered that K.W. had repeatedly stated that she did not talk to anyone on the phone the night while she was at Sloan's residence, that the defense had " a witness to whom she spoke that night and that would be the mother of [Sloan]," and that K.W. had " indicated that there was no drinking that night" and that Sloan's mother would " testify that she was told there was drinking." Id. at 126. The following exchange then occurred between Sloan's defense counsel and the court:
Defense Counsel: [Sloan's mother] will testify . . . that she was told that [K.W.] was twenty (20) years of age and told by [K.W.], and that [K.W.] was told that because she was underage and there was drinking she needed to leave.
Court: Okay. Well, you've known this since the very start of the case, so, no, you can't use her for that purpose. Because you knew that and when you saw the probable cause affidavit, why you guys would have not put her on the witness list to challenge that issue is absolutely beyond me at this stage. So, consequently you can't use her for that purpose. I'm not sure I understand the relevance of whether or not, uh, she spoke to someone on the phone that night.
Defense Counsel: It goes to her credibility on the issue of whether or not she is telling the truth.
Court: Well, okay, if you want to call . . . my inclination is if you want to call the mother to indicate whether or not she spoke to her on the phone or not, that's the one issue that is new. The other ones you guys waived when you knew it existed.
Defense Counsel: So that I'm clear and we don't screw up here Judge,
or I don't screw up, and Lord knows I've
done it before, uh, it is okay to ask her if there was a conversation that
night, but not about the age, her statement about the age?
Court: Correct. Yeah, you knew that, you knew that way before this case . . . .
Defense Counsel: The age, okay.
Court: And you also knew about the drinking.
Defense Counsel: Okay.
Court: So those issues, uh, . . . . you kept a witness in here and you knew you wanted to address and, uh, and on a separation of witness order you asked for, uh, so accordingly those issues, uh, I'm not going to now, uh, relieve you of the separation of witness order that you asked for.
Id. at 126-128.
Sloan's counsel asked to make an offer of proof for the record, and the court granted the request. Outside the presence of the jury, Sloan's counsel called Sloan's mother, Paula Smith, to the stand. Sloan's counsel elicited testimony from Smith that she received a telephone call from Sloan at about 2:00 a.m. on June 23, 2011, and Sloan told her that that he had been up for several days, that he had been smoking spice, that he had some people in his house, that he wanted to go to bed, and that the ...