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Reed v. State

Court of Appeals of Indiana

October 12, 2017

Mark Reed, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

         Appeal from the Grant Superior Court The Honorable Jeffrey D. Todd, Judge Trial Court Cause No. 27D01-1604-FA-1

          Attorney for Appellant Evan K. Hammond Grant County Public Defender Marion, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

          Brown, Judge.

         [¶1] Mark Reed appeals his conviction for child molesting as a class A felony. Reed raises one issue which we revise and restate as whether the trial court erred in denying his motion to dismiss. We affirm.

         Facts and Procedural History

         [¶2] At some point in 2001 when J.D. was ten years old, she met Reed who had started dating her mother, and J.D.'s mother stayed with Reed in La Fontaine, Wabash County, Indiana, and later in a trailer near Monticello, White County, Indiana. J.D. and A.D., who was J.D.'s sister and two years younger than J.D., lived primarily with their father but visited their mother and Reed. J.D.'s mother left J.D. and A.D. in Reed's care while she was at work. Reed told J.D. that she "looked like Brittany Spears" and he wished he "could eat her up." Transcript Volume 2 at 109-110. Reed would always want J.D. to sit next to him on the bench seat in the truck and would try to hold her hand or place his hand on her leg. In 2001 and 2002, Reed would touch J.D.'s knee and sometimes place his hand between her thighs while sitting next to him in a vehicle.

         [¶3] On one occasion when J.D. and A.D. were alone with Reed in the trailer house near Monticello while J.D.'s mother was at work, Reed told J.D. and A.D. that a spirit named Freddie would enter his body and make him do bad things, that one little boy had not listened to Freddie and had to be punished, and that the boy had his intestines strung throughout some trees as punishment for not listening to Freddie. Reed sent A.D. out to play, he told J.D. that she needed to listen to Freddie and that meant she needed to give him a hug before she could leave, he wrapped his arms around her, and he "reached his arm around and grabbed [her] butt and squeezed really tight and held [her] there." Id. at 119.

         [¶4] On another day in the summer of 2002 when J.D.'s mother was at work, Reed drove J.D. and A.D. in the truck from Monticello to Matter Park in Marion, Grant County, Indiana. After they exited their vehicles, Reed was going to show J.D. something. He and J.D. walked without A.D. toward a tree line, "there was a no trespassing sign in the trees and . . . a little walkway past it, " and they walked past the sign and through the tree line into a little clearing from where J.D. could not see anyone. Id. at 125. As they walked, Reed told J.D. that Freddie was back. He told her to take her shorts and underwear off and get down on her knees, and she lowered her shorts and underwear to around her ankles and got on her hands and knees. Reed got on his knees behind her, took "his hands and . . . start[ed] feeling [J.D.'s] whole genital area, " "he would take his hand and go from the front to the back feeling everything, " and "he would grab [her] butt cheeks and spread [th]em apart." Id. at 132. Reed told J.D. not to look at him, to look down, and to be quiet. He touched her vagina and "his finger went in a little bit." Id. at 133. He also placed "one hand on each side of [J.D.'s] butt cheeks, " with "his thumbs inside [her] butt cheeks, " and it felt to J.D. like his thumbs were "[p]ressing on [her] anus." Id. at 135. Reed told J.D. she could put her shorts back on, she did so, and they walked back toward the vehicle. While walking back, Reed threw himself into the field, started wiggling and jerking around on the ground, and said that Freddie was leaving his body. Reed then asked J.D. "what Freddie did" and "wanted [her] to describe what happened." Id. at 140. The following day, Reed told J.D. not to tell anyone and, if she did, Freddie would "make [her] disappear, " and J.D. thought that "disappear" meant that Reed would kill her. Id. at 144-145. A couple of days later, Reed was arrested on another matter. His relationship with J.D.'s mother ended following the arrest.

         [¶5] At some point prior to January 2008, J.D. disclosed that Reed had molested her to A.D. and her friend N. and told them not to say anything. J.D. also wrote a letter to one of her former boyfriends telling him that she had been molested, she let him read it in her presence, he gave the letter back to her, and she kept the letter. When she was sixteen years old, J.D. saw Reed in a convenience store, and she "was just frozen" and "so scared." Id. at 153. J.D. saw Reed walk outside and enter a vehicle with a woman and two children and drive away. J.D. called A.D. and was crying and upset. At some point after seeing Reed at the store, J.D. told her mother that Reed had molested her, and J.D. and her mother contacted the police.

         [¶6] Marion Police Officer Austin Lamb prepared a report in July of 2008. Marion Police Detective Larry Shaw was assigned the case involving J.D. The initial report reflects that a copy of the report was sent to the Monticello Police Department in White County. Also in July 2008, J.D. was interviewed at the Child Advocacy Center, and Detective Shaw as well as a member of the Grant County Prosecutor's staff, Lisa Glancy, attended the interview. A description of the incident at Matter Park in Grant County was disclosed during the Child Advocacy Center interview. J.D. went with a police officer to Matter Park to point out the location of the incident. Detective Shaw had difficulty in contacting or finding Reed and "in keeping communication with the victim, J.D.'s mother." Id. at 64. Representatives from the Grant County Prosecutor's Office assisted J.D. and her mother in filling out paperwork for a protective order against Reed. The case against Reed for molesting J.D. was not presented to the prosecutor's office for review at that time.

         [¶7] In January or February of 2016, Jay Kay ("Investigator Kay"), an investigator with the Grant County Prosecutor's Office, while investigating a case involving another person who said she had been molested by Reed, discovered the 2008 report regarding Reed molesting J.D. Investigator Kay reviewed J.D.'s interview at the Child Advocacy Center, interviewed J.D., took photographs at Matter Park, obtained the letter J.D. had written to her former boyfriend, and contacted A.D., J.D.'s mother, N., J.D.'s former boyfriend, Harold Reed ("Harold"), who was Reed's uncle, and Michael Reed ("Michael"), who was Reed's cousin.

         [¶8] On April 21, 2016, the State charged Reed with numerous counts of child molesting including two counts of child molesting of J.D. as class A felonies.[1]Count I alleged that, on or about January to August 2002, Reed placed his finger in J.D.'s vagina, and Count II alleged that, on or about January to August 2002, Reed placed his finger in J.D.'s anus. The State also alleged Reed was an habitual offender. Reed filed a motion for severance of counts, and the court ordered that the charges in which J.D. was the alleged victim, Counts I and II, would be severed and tried separately from the counts related to other alleged victims.

         [¶9] On January 5, 2017, Reed filed a Motion to Dismiss Counts I and II arguing that the counts alleged the incidents occurred on or about January to August 2002 and that the delay in filing charges against him violated his due process rights and impaired his ability to mount a defense. On January 6, 2017, the court held a hearing on Reed's motion at which Investigator Kay indicated that he spoke with Detective Shaw and that his understanding was "that there was a little bit of attempt to investigate at that time." Transcript Volume 2 at 53. When asked "[i]s the only police report in this case that you were able to find was the one created by [Officer] Lamb, and uh, his contact with . . . the mother of the victim, " Investigator Kay responded affirmatively. Id. at 59. Investigator Kay further indicated that the Child Advocacy Center interview "was the only source of a crime against J.D. occurring in Grant County" and that, to his knowledge, there were "no reports generated after the [Child Advocacy Center] interview . . . where J.D. described being molested at Matter Park" and "there was . . . nothing generated that could be presented to the prosecutor to review the case." Id. at 60. He also indicated that his understanding in reviewing the case was that Detective Shaw "had difficulty in contacting, finding [Reed] and in keeping communication with the victim, J.D.'s mother." Id. at 64. The court denied Reed's motion to dismiss. A jury trial was commenced on January 9, 2017, at which the State presented the testimony of, among others, J.D., J.D.'s mother, A.D., J.D.'s friend N., and Investigator Kay, and Reed presented ...

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