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Dilts v. State

Court of Appeals of Indiana

December 31, 2015

Kyle W. Dilts, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

Page 618

          Appeal from the Dearborn Superior Court. Trial Court Cause No. 15D01-1310-FA-22. The Honorable Jonathan N. Cleary, Judge.

         FOR APPELLANT: Leanna Weissmann, Lawrenceburg, Indiana.

         FOR APPELLEES: Gregory F. Zoeller, Attorney General of Indiana; Ian McLean, Deputy Attorney General of Indiana, Indianapolis, Indiana.

         Pyle, Judge. Crone, J., and Brown, J., concur.

          OPINION

Page 619

          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.

         [¶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 molesting as contained in Count I. In regard to the State's cross-appeal issue, we agree that the 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" ),

Page 620

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 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 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

Page 621

at a CHINS hearing scheduled for September 11, 2013, but he did not 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" 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 that K.D. had a videotaped interview at the CAC where " she made these allegations

Page 622

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 " 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 ...


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