Michael R. Heckard, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.
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 ...