Kyle W. Dilts, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff
from the Dearborn Superior Court. Trial Court Cause No.
15D01-1310-FA-22. The Honorable Jonathan N. Cleary, Judge.
APPELLANT: Leanna Weissmann, Lawrenceburg, Indiana.
APPELLEES: Gregory F. Zoeller, Attorney General of Indiana;
Ian McLean, Deputy Attorney General of Indiana, Indianapolis,
Judge. Crone, J., and Brown, J., concur.
of the Case
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.
Kyle Dilts (" Dilts" ) was charged with and
convicted of the following two counts of Class A felony child
molesting: 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
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.
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
We affirm in part, reverse in part, and remand.
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.
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.
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.
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.
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.
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.
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).
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.
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
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.
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
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).
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).
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).
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
that led to these charges." (Tr. 362). His counsel then
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
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 ...