William D. Bradley, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Warrick Superior Court Trial Court Cause No.
87D02-1505-F1-167 The Honorable Robert R. Aylsworth, Judge
Attorney for Appellant Jonathan G. Chance JC Law Offices
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana George P. Sherman Supervising Deputy Attorney
General Indianapolis, Indiana
of the Case
William D. Bradley appeals his convictions for two counts of
child molesting, each as a Level 1 felony; one count of child
molesting, as a Level 4 felony; and one count of incest, as a
Level 4 felony. Bradley raises the following five issues for
1. Whether the trial court violated Bradley's rights to a
speedy trial under either Indiana Criminal Rule 4(C) or the
federal and state constitutions.
2. Whether Bradley's convictions for child molesting, as
a Level 4 felony, and incest were based on the very same acts
on which his two Level 1 child molesting convictions were
based and, as such, violated his right to be free from double
3. Whether the trial court abused its discretion in the
admission of certain evidence.
4. Whether the State presented sufficient evidence to support
5. Whether the trial court committed fundamental error when
it did not intervene during the prosecutor's closing
We affirm in part, reverse in part, and remand with
instructions to vacate Bradley's convictions for child
molesting, as a Level 4 felony, and incest, as a Level 4
and Procedural History
On March 30, 2015, A.S. invited her brother, D.B., and her
father, Bradley, to her house to watch movies with her and
her three minor children, E.S., T.S. and K.S. At the time,
her daughter, T.S., was six years old. After dinner that
evening, A.S. went to bed around 9:00 p.m., and D.B. and
Bradley stayed up with E.S. and T.S.
Around 10:50 p.m., D.B. left the living room, where he and
the others were still watching movies, to go to the bathroom.
When he returned to the living room about fifteen minutes
later, he observed T.S. on Bradley's lap, under a
blanket. D.B. observed Bradley "holding [T.S.]
under" the blanket. Tr. Vol. I at 211. Bradley's
hands were also underneath the blanket. T.S. appeared to be
"struggling," and D.B. heard her say
"no." Id. at 213. D.B. looked for a phone
to call police, but he could not locate one, and when he
returned to the living room T.S. was no longer on
Bradley's lap but, rather, on the couch. When Bradley
later left the residence, D.B. heard Bradley whisper to T.S.
"shh" and "it was just all a dream."
Id. at 217.
The next afternoon, when A.S. came home from a dentist
appointment, D.B. and T.S. were inside the residence, and
D.B. urged T.S. to "tell" A.S. about the night
before. Id. at 134. But T.S. did not want to discuss
it. D.B. then told A.S., outside of T.S.'s presence, what
he had observed with Bradley the night before. A.S. then
asked T.S. about it, and T.S. "confirmed what [D.B.] had
said." Id. at 135.
Thereafter, A.S. called police, and Molly Elfreich, a
forensic interviewer at the Holly House adult and child
advocacy center, interviewed T.S. During that interview, T.S.
identified the female genital area and the male genital area
using diagrams of a female body and a male body. T.S. then
stated that Bradley had touched her breasts; that he had
touched her genitals over her clothes with his hand; that he
had placed a finger inside her vagina; and that he had made
"her face touch his penis." Id. at 194.
When asked if Bradley had made any specific parts of her face
touch his penis, T.S. stated that he had made "all
of" her face touch it. State's Ex. 1 at 16:21.
On May 1, the State charged Bradley with Count 1: child
molesting, as a Level 1 felony; Count 2: child molesting, as
Level 1 felony; Count 3: child molesting, as a Level 4
felony; and Count 4: incest, as a Level 4 felony. After
various continuances, on September 1, 2016, Bradley moved for
discharge pursuant to Indiana Criminal Rule 4(C). The trial
court denied his motion. At his ensuing jury trial, during
cross-examination, A.S. testified that she did not take T.S.
to a hospital or emergency room immediately after she had
learned of Bradley's acts because A.S. believed that
"[n]othing was inserted . . . that would have passed an
STD." Tr. Vol. I at 26-27. The jury returned a hung
verdict, and the court declared a mistrial.
Prior to the second trial, Bradley filed a renewed motion for
discharge pursuant to Criminal Rule 4(C), which the court
again denied. Also prior to the second trial, the State filed
a motion in limine to prohibit Bradley from asking A.S.
whether anything had been inserted into T.S. because A.S.
lacked personal knowledge of such an act. The trial court
granted the State's motion.
The court held Bradley's second trial in September of
2017. At that trial, A.S., D.B., and Elfreich testified, and
the State introduced T.S.'s recorded interview with
Elfreich as well as a video-recording of police officers'
interview with Bradley, which was conducted shortly after the
initial allegations had been made. During her testimony, A.S.
stated that she did not take T.S. to a hospital immediately
after learning of the allegations because of the stress of
the moment and also because they "were a tight-knit
family" and she "would have known" if Bradley
had an STD that he could have passed to T.S. Id. at
148-49. Bradley then moved to impeach A.S. using her
testimony from the first trial. The trial court denied
Bradley's request and noted that A.S.'s second
testimony was made while "she was trying very hard not
to violate" the court's order on the motion in
limine. Id. at 152.
Following the presentation of evidence, the prosecutor stated
as follows, without objection, during closing argument:
[The court's instruction] defines other sexual conduct.
It is an act involving the sex organ of one person and the
mouth or anus of another person, or it's the penetration
of a sex organ or anus of a person by any object.
In this case we have both. Count  involves oral sex, and
Count  involves digital penetration. So what the State
would have to prove would be a mouth of [one] person coming
into contact with a sex organ or an object, which can be a
finger, penetrating a sex organ of another person.
* * *
In Count  the State has to prove the defendant . . .
[p]erformed or submitted to oral sex. And, again, the
definition I just read to you is the mouth in contact with
the sex organ. So the State doesn't have to prove beyond
a reasonable doubt that his penis went into her mouth and
stayed for any period of time. Her testimony was that her