Heckard v. State

          Appeal from the Carroll Circuit Court The Honorable Benjamin A. Diener, Judge Trial Court Cause No. 08C01-1702-F1-1

          ATTORNEY FOR APPELLANT Steven Knecht Lafayette, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

          Tavitas, Judge.

         Case Summary

         [¶1] Michael Heckard appeals his convictions and sentence for two counts of child molesting, Level 1 felonies. We affirm.

         Issues

         [¶2] Heckard raises three issues on appeal, which we restate as follows:

I. Whether the trial court erred in excluding evidence related to the victim's anal tear.

II. Whether Heckard's two convictions violate the continuous crime doctrine.

III. Whether Heckard's sentence is inappropriate. Facts

         [¶3] D.K. and her four siblings, C.K., Da.K., Ca.K., and E.K. lived with their mother (the "mother") in a home in Carroll County. Heckard was the mother's boyfriend, and he lived with the mother and the children at the mother's home. Heckard and the mother met on a dating website and had been dating just over a year at the time the incident occurred.

         [¶4] On December 22, 2016, forty-one-year-old Heckard and seven-year-old D.K. went on a few errands. During this time, the mother was at work, and according to the mother, it was normal for the children to be alone with Heckard in the house. Heckard and D.K. were gone for a few hours before returning home.

         [¶5] Once Heckard and D.K. returned home, Heckard then went in the bathroom and D.K followed. Heckard closed and locked the bathroom door. Heckard removed his clothes, and D.K. did the same. Heckard then instructed D.K. To "lay on him" with D.K.'s head facing Heckard's feet. Tr. Vol. IV p. 72. Heckard then made D.K. "put [D.K.'s] mouth on [Heckard's] private." Id. at 71. After, Heckard "stuck his mouth on [D.K.'s] private." Id. D.K. stated that Heckard touched her "private" with "his tongue." Id. at 74. D.K. stated that, when she touched him, there was "gooey stuff" that looked like "strings." Id. at 74.

         [¶6] While they were in the bathroom, Ca.K. knocked on the door because she had to use the bathroom. Heckard put his clothes on and left the bathroom. D.K. put her clothes on and brushed her teeth "[b]ecause it was gross." Id. at 75. Afterwards, D.K. left the bathroom.

         [¶7] Da.K., D.K.'s brother, who was standing in the kitchen doorway, indicated that he could see the bathroom door from where he was standing. Da.K. witnessed Heckard exit the bathroom. Heckard walked past Da.K. and did not say anything to Da.K., which was "weird" to Da.K, because Heckard would typically acknowledge Da.K. when he walked past him. Id. at 13. A few moments later, Da.K. saw D.K. walk out of the bathroom in "weird clothes." Id. Specifically, Da.K. noted that D.K.'s shirt exposed her stomach, and her shorts appeared small. Later that evening, around 5:30 or 6:00 p.m. after Heckard went to work, D.K. and Da.K. told their mother about the incident with Heckard.

         [¶8] The mother then called Carroll County Sheriff's Office, and Deputy Drew Yoder was dispatched to the residence in Carroll County. Deputy Yoder spoke with D.K. and Da.K., collected D.K.'s clothing, which included a white sweater, and took the items back to the laboratory for forensic testing. D.K.'s mother took D.K. to Riley Children's Hospital where a sexual assault exam was performed on D.K.

         [¶9] Heckard was charged with Count I, child molesting, a Level 1 felony; and Count II, child molesting, a Level 1 felony. The charging information for Count I alleged that:

[Heckard], a person of at least twenty-one (21) years of age, did perform [] sexual conduct with D.K., a child under the age of fourteen years (14), to-wit: seven years of age.

All of which is contrary to the form of the statute in such cases made and provided, to-wit: I.C. 35-42-4-3(a) and I.C. 35-42-4-3(a)(1) . . .

Appellant's App. Vol. II p. 15 (emphasis added). Count II alleged that:

[Heckard], a person of at least twenty-one (21) years of age, did submit to [] sexual conduct with D.K., a child under the age of fourteen years (14), to-wit: seven years of age.

All of which is contrary to the form of the statute in such cases made and provided, to-wit: I.C. 35-42-4-3(a) and I.C. 35-42-4-3(a)(1) . . .

Id. at 16 (emphasis added). A jury trial took place from April 16 to April 19, 2018.

         [¶10] At the jury trial, Jena Lane, a forensic nurse at IU Health, testified that she performed the sexual assault exam on D.K. The sexual assault exam included a "head-to-toe assessment looking for any injuries and then taking swabs of at least the oral cavity, vaginal area and anal area." Tr. Vol. III pp. 106-07. Lane also testified about the report from the sexual assault exam, which is the basis of Heckard's claim regarding exclusion of evidence regarding an anal tear.

         [¶11] Shawn Stur, a forensic scientist with the Indiana State Police Laboratory in Lowell, testified that she examined the DNA evidence collected from D.K.'s sexual assault exam and D.K.'s sweater. DNA was detected on D.K.'s underwear that she wore to the hospital following the assault, the anal swab, and the external genital swab. Accordingly, the items were sent to the Indiana Police Laboratory in Indianapolis for further testing.

         [¶12] Heather Crystal, a forensic DNA analyst with the Indianapolis laboratory, analyzed the anal swabs, external genital swabs, and underwear sample, and compared it with Heckard's DNA sample. As to the anal swab, the results indicated that "[t]he Y-STR profile from the anal swabs was consistent at every location to the DNA standard from [Heckard]."^[1] Id. at 213. As to the external genital swabs, the "Y-STR profile obtained from the combined swabs is consistent with the Y-STR profile obtained from [Heckard]." Id. at 215. Specifically, the sample on this particular area was "more male DNA [] than [Crystal] normally see[s] in a Y-STR sample." Id. at 216. Finally, Crystal testified that as to D.K.'s underwear, the "Y-STR profile obtained from the sample of the underwear is consistent with the Y-STR profile obtained from [Heckard]."^[2] Id. Crystal was unable to determine the source of the DNA, whether it be from semen, saliva, or skin.

         [¶13] In closing argument, the State again referenced the report and the anal tear, stating:

And remember what the second lab tech said. There was only a partial identification on the anal swab. Meaning the DNA didn't match every location tested to Mr. Heckard's DNA. They tested 23 locations. She said on the anal swab only 14 matched, but on the genital swab and on the underwear, the second pair of underwear she is wearing, it matches all 23 locations. So there is enough male DNA there that is transferred from her genital area to this fresh pair of underwear. Enough DNA that matches Mr. Heckard in all 23 locations on his Y chromosome. Also heard about an unexplained anal tear from the nurse's examination. So to say that the physical evidence doesn't match the testimony that is just not reasonable.

Tr. Vol. IV p. 168. Heckard's counsel did not object to the State's argument.

         [¶14] The jury found Heckard guilty of both counts. At sentencing, the trial court found the following aggravating factors: (1) Heckard's "history of criminal or delinquent behavior;"^[3] (2) the age of the victim under seven years of age; and (3) Heckard's position of having the care, custody, or control of the victim. Tr. Vol. V p. 23. The trial court found no mitigating factors. Accordingly, the trial court sentenced Heckard to forty years for Count I and forty years for Count II to be served concurrently at the Department of Correction.

         Analysis

         A. Exclusion of Evidence

         [¶15] Heckard first argues that the trial court abused its discretion by "not allowing testimony about the doctor's impression of the cause of [D.K.'s] anal tear (constipation), and the treatment for the condition, once the State had placed the existence of the anal tear before the jury." Appellant's Br. p. 18. Heckard also argues that it was error for the trial court ...