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Bradley v. State

Court of Appeals of Indiana

October 30, 2018

William D. Bradley, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

          Appeal 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 Evansville, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana

          NAJAM, JUDGE

         Statement of the Case

         [¶1] 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 our review:

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 jeopardy.
3. Whether the trial court abused its discretion in the admission of certain evidence.
4. Whether the State presented sufficient evidence to support his convictions.
5. Whether the trial court committed fundamental error when it did not intervene during the prosecutor's closing argument.

         [¶2] 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 felony.

         Facts and Procedural History

         [¶3] 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.

         [¶4] 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.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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.

         [¶9] 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.

         [¶10] 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 [1] involves oral sex, and Count [2] 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 [1] 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 ...

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