[Copyrighted Material Omitted]
Appeal from the Madison Circuit Court. Case No. 48C06-1308-FA-1546. The Honorable Dennis D. Carroll, Judge.
FOR APPELLANT: Thomas G. Godfrey, Anderson, Indiana.
FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Angela N. Sanchez, Deputy Attorney General, Indianapolis, Indiana.
Crone, Judge. Brown, J., and Pyle, J., concur.
[¶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 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 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 ...