ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kevin J. Moser Curtis T. Hill, Jr. Fort Mitchell, Kentucky Attorney General of Indiana FILED Samuel J. Dayton Sep 02 2020, 8:55 am Deputy Attorney General CLERK Indianapolis, Indiana Indiana Supreme Court Court of Appeals and Tax Court
IN THE COURT OF APPEALS OF INDIANA
Dustin B. Crabtree, September 2, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2128 v. Appeal from the Ripley Circuit Court State of Indiana, The Honorable Ryan King, Judge Appellee-Plaintiff. Trial Court Cause No. 69C01-1903-F1-1
Tavitas, Judge.
Case Summary [1] Dustin Crabtree appeals his conviction and sentence for child molesting, a
Level 1 felony. We affirm.
Issues [2] Crabtree presents two issues for our review, which we revise and restate as
follows:
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 1 of 31 I. Whether the trial court erred by admitting Crabtree’s statement to the officers.
II. Whether Crabtree’s sentence is inappropriate in light of the nature of the offense and Crabtree’s character.
Facts [3] In early 2019, Crabtree and his wife (“K.C.”) lived with their three children:
seven-year-old P.C.; four-year-old L.C, 1 and three-year-old R.C. 2 In January
2019, K.C. became aware of allegations that Crabtree was engaging in sexual
conduct with L.C. after L.C. disclosed the conduct to her cousin. K.C.
contacted authorities.
[4] On January 28, 2019, Kelly Bridges, a forensic interviewer at the Children’s
Advocacy Center (“CAC”), interviewed L.C. L.C. disclosed to Bridges that:
(1) Crabtree “trie[d] to do gross stuff to [L.C.’s] pee-pee,” like “rub it”; (2)
Crabtree “did it a lot of times”; (3) Crabtree used his finger to rub “[i]nside
[L.C.’s] butt-crack”; (4) Crabtree “pull[ed] [L.C.’s] pants off” and “spread[] out
[her] legs so he can do it even more”; (5) Crabtree had L.C. “rub [Crabtree’s]
pee-pee” and it felt like Crabtree was “peeing on [L.C.’s] hand”; (6) Crabtree
“put[] his finger in [L.C.’s’] mouth. . . and [ ] put his pee-pee to go through in
1 The charging information alleges that the offense occurred in 2018, and Crabtree narrowed the timeline to “early spring and summer” 2018. Tr. Vol. II p. 217. L.C. was born in July 2014; therefore, although L.C. was four years old when she disclosed the abuse, L.C. was three years old when the abuse occurred. 2 Based on L.C.’s interview with Kelly Bridges, it appears that L.C.’s aunt, uncle, and two cousins, ages seven and five, also lived with Crabtree’s family for a period of time.
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 2 of 31 [L.C.’s] mouth”; (7) Crabtree showed L.C. “sort of a naked video” on
Crabtree’s phone; and (8) several of these events occurred in Crabtree’s and
K.C.’s bed as K.C. slept in it. Tr. Vol. II pp. 109-110, 118-19, 121-22. 3
[5] Also, on January 28, 2019, Detective Brian Earls, with the Indiana State Police,
approached Crabtree outside of the family’s home. Detective Earls asked
Crabtree about L.C.’s allegations, and Crabtree denied any wrongdoing.
During the conversation, Crabtree volunteered to take a polygraph examination
before Detective Earls could propose the same. Later that evening, Detective
Earls and Crabtree scheduled Crabtree’s polygraph examination.
[6] On February 1, 2019, Crabtree’s mother drove Crabtree to the Indiana State
Police Versailles Post. Before Crabtree took the polygraph, Sergeant Rick
Roseberry, the polygraph examiner, advised Crabtree of his rights. Although
Sergeant Roseberry did not use the term “Miranda rights,” as Crabtree
acknowledges on appeal, the advisements were substantially the same as
Miranda rights. Sergeant Roseberry advised Crabtree that: (1) he was free to
leave at any time; (2) the interview room door was unlocked; however, the Post
door was locked for officer safety and Crabtree could simply ask officers to
unlock the door to leave; (3) Crabtree had the right to remain silent; (4)
anything Crabtree said could and would be used against him; (5) Crabtree had
the right to speak with a lawyer and have a lawyer present for questioning; (6) if
3 The court reporter transcribed Bridges’ CAC interview of L.C. into the trial record. We, therefore, will cite to this portion of the transcript when quoting L.C.’s testimony because L.C. did not testify in person at trial.
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 3 of 31 Crabtree was unable to afford a lawyer, one would be provided for him; (7)
Crabtree could end the questioning at any point; and (8) Crabtree was
voluntarily participating in questioning.
[7] Crabtree signed a waiver of rights prior to taking the polygraph examination.
The waiver stated:
1. By signing your name, you acknowledge that you have been read and fully understand the following rights, that no promises have been made to you and that you have not been threatened in any manner.
a. You have the absolute right to remain silent.
b. If you give up this right, anything that you say can and will be used against you in a court of law.
c. You have a right to talk to a lawyer before and have a lawyer present during questioning.
d. If you cannot afford a lawyer, one will be appointed to represent you, without charge, before any questioning, if you so desire.
e. If you decide to answer any questions, you may stop anytime that you wish.
2. You understand that since this examination is VOLUNTARY, you release and forever hold free from harm, liability, or damage to you as a result of the polygraph examination, the State of Indiana, any agency involved in this case, it’s [sic] officers, and the polygraph examiner.
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 4 of 31 Ex. Vol. V p. 15.
[8] After the polygraph examination was complete, Sergeant Roseberry told
Crabtree that he failed the questions regarding whether L.C.’s mouth touched
Crabtree’s penis. Sergeant Roseberry then questioned Crabtree. Crabtree told
Sergeant Roseberry he would be willing to speak to Sergeant Roseberry further,
but asked to do so on a later date. During the three-hour period in which
Crabtree spoke with Sergeant Roseberry, the following occurred: Crabtree was
given advisement of his rights, introductory information and explanation about
the polygraph examination, and initial questions about the polygraph; Crabtree
took a twenty-minute break; the polygraph examination was completed;
Sergeant Roseberry ran the polygraph report; and then Sergeant Roseberry
questioned Crabtree. See Misc. Motions Hearing Joint Exhibit A. When
Crabtree asked to reschedule the interview, Sergeant Roseberry asked Crabtree
if he would mind waiting while Sergeant Roseberry went to get the investigator,
to which Crabtree agreed. The duration of Crabtree’s entire interaction with
Sergeant Roseberry was approximately three hours.
[9] Crabtree waited one minute, then Sergeant Thomas Baxter, an Investigative
Squad Sergeant, came to speak with Crabtree. During the conversation with
Sergeant Baxter, Crabtree stated that he had “a whole lot to think about” and
asked if he could reschedule their conversation. Tr. Vol. II p. 210. Sergeant
Baxter responded, “If you wanna talk later, what you need to do is probably
talk to, to [Detective Earls] about that,” and continued to speak to Crabtree. Id.
After additional discussion, Crabtree inquired whether Crabtree could still go
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 5 of 31 home if he told Sergeant Baxter “what [Crabtree was] about to tell [Sergeant
Baxter].” Id. at 215. Sergeant Baxter responded, “I think we could do that.”
Id. Crabtree then admitted that, one night, he awoke with L.C. in his bed, and
L.C. was “touching” Crabtree “[w]ith her hands and her mouth.” Id.
Afterwards, Crabtree told L.C. not to mention the events to anyone else.
Crabtree stated that he advised K.C. that the children could no longer sleep in
the couple’s bed.
[10] After approximately twenty minutes of questioning, Sergeant Baxter thanked
Crabtree. Sergeant Baxter then asked Crabtree: “There isn’t anybody that
knows better, the facts of what [L.C.] said, than Detective Earls. If he comes
back in here, if I go get him and present him to you and he goes over what she
said, will you help put this together?” Id. at 217. When Sergeant Baxter asked
Crabtree if that was “cool,” Crabtree responded affirmatively. Id. at 217-18.
Sergeant Baxter sent a text message to Detective Earls, who appeared within
moments. Crabtree again told Detective Earls that one night he awoke with
L.C. in his bed touching Crabtree’s penis, “and her head was down there.” Tr.
Vol. III p. 5. Detective Earls then questioned Crabtree for approximately forty
minutes. Crabtree left the Post that night to return to his mother’s home.
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 6 of 31 [11] On March 4, 2019, the State charged Crabtree with Count I, child molesting, a
Level 1 felony; and Count II, child molesting, a Level 4 felony. 4 Count I was
based on Crabtree performing or submitting to sexual intercourse or other
sexual conduct with L.C., and Count II was based on Crabtree fondling or
touching L.C. In late July 2019, the State moved to dismiss Count II, which
the trial court granted.
[12] The State moved for closed circuit television testimony by L.C. in a protected
persons hearing pursuant to Indiana Code Section 35-37-4-6(e)(1)(B). 5 The
State moved for this hearing due to L.C.’s young age and the likely harm that
L.C. would suffer if required to testify during Crabtree’s jury trial. A protected
persons hearing was held on July 23, 2019. During the hearing, L.C. hid in the
witness box and did not reply to several questions the State asked about
Crabtree. Dr. Jill Christopher, a clinical psychologist, testified on behalf of the
State and stated that, based on her February 2019 evaluation of L.C., L.C. may
be unable to “reasonably communicate” and may be unable to answer many
questions if she was required to testify in the presence of Crabtree. Tr. Vol. II p.
110. Bridges also testified during the hearing regarding her January 2019 CAC
interview of L.C. The trial court granted the State’s request and concluded that,
4 Crabtree was also charged on April 4, 2019, with amended Count III and Counts IV, V, VI, and VII, unlawful possession of a firearm by a serious violent felon, Level 4 felonies. On July 9, 2019, the trial court severed these counts from Counts I and II. 5 Indiana Code Section 35-37-4-6 allows a statement or videotape of a protected person as admissible evidence in a criminal proceeding if certain conditions are met.
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 7 of 31 in lieu of L.C.’s testimony at trial, Bridges’ CAC video interview of L.C. would
be played for the jury.
[13] On July 16, 2019, Crabtree filed a motion to suppress statements made during
questioning following the polygraph examination. In the motion, Crabtree
argued that: (1) Crabtree was in custody following the voluntary polygraph; (2)
Crabtree should have been re-read his Miranda rights after the polygraph; and
(3) Crabtree’s right to remain silent and right against self-incrimination under
the Fifth Amendment of the United States Constitution were violated.
[14] The trial court held a hearing on Crabtree’s motion to suppress, and on July 25,
2019, the trial court entered a written order denying Crabtree’s motion to
suppress. The trial court found that Crabtree voluntarily participated in the
polygraph and was not in custody during the polygraph examination or the
subsequent questioning. The trial court concluded, therefore, that Crabtree
could not succeed in challenging the admissibility of the voluntary statement
and denied the motion to suppress. The trial court ordered, however, that
discussion of the polygraph examination and its results would not be admissible
at trial.
[15] At Crabtree’s July 2019 jury trial, L.C. did not testify, and instead, the video
recording of Bridges’ CAC interview of L.C. was played for the jury. The video
of Crabtree’s interview with Sergeant Baxter and Detective Earls was also
played for the jury. Prior to the introduction of the interview, Crabtree renewed
his objection based on the grounds contained in his prior motion to suppress.
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 8 of 31 After the State rested, Crabtree moved for a directed verdict, which the trial
court denied. Finally, in its case-in-chief, the defense played the video of L.C.’s
testimony at the protected persons hearing.
[16] The jury found Crabtree guilty of Count I, child molesting, a Level 1 felony.
On August 23, 2019, the trial court sentenced Crabtree to the maximum
sentence of fifty years at the Indiana Department of Correction (“DOC”). In
support of its sentence, the trial court found as aggravating factors: (1)
Crabtree’s criminal history; (2) Crabtree’s violation of a position of care,
custody, or control; (3) Crabtree committed several acts that went far beyond
the single act to support Count I; and (4) the significant psychological and
emotional impact on the victim. Crabtree’s pre-sentence investigation report
(“PSI”) indicates convictions for: three counts of burglary, Class B felonies, and
burglary, a Class C felony, in 2005. Crabtree also appears to have been
sentenced in 2005 for possession of marijuana and operating on a suspended or
revoked license in Kentucky; however, no additional information was included
in the PSI on these offenses. Finally, Crabtree’s five charges for unlawful
possession of a firearm by a serious violent felon were still pending at the time
the PSI was prepared. The trial court found no mitigating factors.
[17] In its written sentencing order, the trial court concluded:
The Court understands that this is the maximum sentence allowed by law and further understands that the maximum sentence is reserved for the worst of the worst offenders. The Court finds that the Defendant meets this test when the Defendant, a Serious Violent Felon, utilize[d] his position of
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 9 of 31 care, custody, control, and trust to molest his own three-year old daughter over via [sic] multiple acts and/or occasions, thereby resulting in significant trauma to the victim. Further, during this time, in Defendant’s home, several guns were located and the Pre-Sentence Investigation [report] shows that he was using marijuana and cocaine around the time of the molests and thereafter. These facts qualify the Defendant as one of the worst of the worst offenders who did “the most heinous thing a dad could do.”
Appellant’s App. Vol. II pp. 15-16 (emphasis in original). Crabtree now
appeals.
Analysis I. Admission of Evidence
[18] Crabtree argues that his statements, made under questioning after the polygraph
examination concluded, were inadmissible under the Fifth Amendment to the
United States Constitution. “The general admission of evidence at trial is a
matter we leave to the discretion of the trial court.” Clark v. State, 994 N.E.2d
252, 259-60 (Ind. 2013). “We review these determinations for abuse of that
discretion and reverse only when admission is clearly against the logic and
effect of the facts and circumstances and the error affects a party’s substantial
rights.” Id. at 260. “However, when a constitutional violation is alleged, the
proper standard of appellate review is de novo.” Ackerman v. State, 51 N.E.3d
171, 177 (Ind. 2016) (quotations omitted), cert. denied. “The State has the
burden to demonstrate that the measures it used to seize information or
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 10 of 31 evidence were constitutional.” Curry v. State, 90 N.E.3d 677, 683 (Ind. Ct. App.
2017), (citations omitted), trans. denied.
[19] The Fifth Amendment, incorporated to the states via the Fourteenth
Amendment, guarantees that “no person . . . shall be compelled in any criminal
case to be a witness against himself.” 6 U.S. Const. amend. V; Kelly v. State, 997
N.E.2d 1045, 1053 (Ind. 2013). The United States Supreme Court held in
Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602 (1966), that, before a law
enforcement officer may subject someone to custodial interrogation, the officer
must advise him “that he has a right to remain silent, that any statement he
does make may be used as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed.” Kelly, 997 N.E.2d at
1053. “If the officer does not so advise the subject, the prosecutor cannot use
any statements the subject does make against him in court.” Id. “The trigger to
require the announcement of Miranda rights is custodial interrogation.” State v.
Brown, 70 N.E.3d 331, 335 (Ind. 2017).
[20] According to Crabtree, the trial court erred by admitting his statements because:
(1) Crabtree was in custody and, therefore, was entitled to Miranda warnings;
(2) Crabtree was not advised of his Miranda rights a second time after the
6 Crabtree’s motion to suppress was based only on the Fifth Amendment, and Crabtree does not make a separate Indiana Constitution Article 1, Section 14 argument in his brief. We, therefore, will only consider Crabtree’s rights under the Fifth Amendment when addressing his argument. See Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind. 2002) (“Because Abel presents no authority or independent analysis supporting a separate standard under the state constitution, any state constitutional claim is waived.”).
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 11 of 31 polygraph examination ended; and (3) law enforcement violated his Fifth
Amendment right against self-incrimination by failing to honor Crabtree’s right
to remain silent.
A. Custody
[21] Crabtree first argues that the trial court erred by determining that he was not in
custody during the questioning by officers after the polygraph examination.
Under Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602 (1966), if Crabtree
was under “‘custodial interrogation,’ the police were required to give him
certain warnings about his rights, and the absence of those warnings precludes
the use of his statements to prove guilt.” State v. Ruiz, 123 N.E.3d 675, 679-80
(Ind. 2019) (citation omitted), cert. denied. Accordingly, we will consider
whether Crabtree was in custody at the time of the interrogation.
[22] “The custody inquiry is a mixed question of fact and law: the circumstances
surrounding [Crabtree’s] interrogation are matters of fact, and whether those
facts add up to Miranda custody is a question of law.” Id. at 679. “We defer to
the trial court’s factual findings, without reweighing the evidence; and we
consider conflicting evidence most favorably to the suppression ruling.” Id.
“[W]e review de novo the legal question of whether the facts amounted to
custody.” Id.
[23] In determining whether a defendant was in custody during an interrogation, our
Supreme Court has held that, in analyzing the Fifth Amendment, a person is in
custody when “two criteria” are met: (1) “the person’s freedom of movement is
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 12 of 31 curtailed to ‘the degree associated with a formal arrest’”; and (2) “the person
undergoes ‘the same inherently coercive pressures as the type of station house
questioning at issue in Miranda.’” Id. at 680 (citations omitted).
1. Freedom of Movement
[24] The first factor is whether Crabtree’s freedom of movement was curtailed to the
degree associated with a formal arrest. “[F]reedom of movement is curtailed
when a reasonable person would feel not free to terminate the interrogation and
leave.” Id.
This freedom-of-movement inquiry requires a court to examine the totality of objective circumstances surrounding the interrogation—such as the location, duration, and character of the questioning; statements made during the questioning; the number of law-enforcement officers present; the extent of police control over the environment; the degree of physical restraint; and how the interview begins and ends.
Id.
[25] In Ruiz, our Supreme Court determined that the defendant’s freedom of
movement had been curtailed. The Court noted that: (1) the time and place of
the interrogation was set by the detective; (2) the defendant was led by a
“circuitous path” to a small, closed interview room; (3) the defendant was
interviewed by two officers; (4) the officers told the defendant to “sit tight”
multiple times; and (5) the police station had a “labyrinthine exit route with
many obstructions to egress.” Id. at 680-81. “Most importantly,” the Court
noted that “the police significantly undercut any initial message of freedom
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 13 of 31 when they dramatically changed the interrogation atmosphere” with the
second, more aggressive, interrogator. Id. at 681. The officers did not advise
Ruiz that he was not required to answer the second officer’s questions; that he
was not under arrest; that he could end the interrogation at any time; and that
he could leave after the second officer began questioning him. Rather, the
officers accused the defendant of engaging in the accused conduct; deceived the
defendant by telling him that he passed a “lie-detector test”; questioned the
defendant for almost an hour even though the officers knew the defendant
advised he needed to pick up his daughter. Id. The Court concluded that “the
circumstances surrounding the interrogation add up to a situation in which a
reasonable person would not feel free to end the interrogation and leave.” Id. at
682. Accordingly, the Court determined that the record supported the
“conclusion that the curtailment-of-movement criterion was met.” Id.
[26] The questioning here was much different than the questioning in Ruiz. Crabtree
volunteered to take a polygraph examination. Sergeant Roseberry, who
administered the polygraph examination, advised Crabtree that the interview
room door was unlocked; however, the Post door was locked for officer safety
and Crabtree could simply ask officers to unlock the door to leave. Sergeant
Roseberry also advised Crabtree of his rights, and Crabtree signed a waiver of
his rights.
[27] Crabtree had a three-hour interaction with Sergeant Roseberry for the
polygraph examination and follow-up questioning, a twenty-minute discussion
with Sergeant Baxter, and a forty-minute discussion with Detective Earls.
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 14 of 31 Although the entire interaction with the officers was lengthy, most of the time
was dedicated to the voluntary polygraph examination, not the questioning at
issue here. Once during his conversation with Sergeant Roseberry and once
during his conversation with Sergeant Baxter, Crabtree asked to reschedule the
interview. On both occasions, however, Crabtree continued talking to the
officers and answering questions. Unlike in Ruiz, the officers’ questioning was
not aggressive or deceptive, and the officers did not outnumber Crabtree. 7 The
interview began with Crabtree voluntarily traveling to the Post for a polygraph
examination and ended with Crabtree leaving the Post with his mother.
[28] We do not find the circumstances here similar to tactics employed by the
officers in Ruiz. The circumstances surrounding Crabtree’s interrogation simply
do not add up to a situation in which a reasonable person would not feel free to
end the interrogation and leave. Accordingly, the curtailment-of-movement
factor was not met here.
2. Coercive Pressures
[29] “The second custody criterion asks whether the circumstances exert the
coercive pressures that drove Miranda.” Ruiz, 123 N.E.3d at 682. “When the
case involves the paradigm example of interrogating a suspect at a police
7 Crabtree told Sergeant Baxter he could remain in the room while Crabtree spoke with Detective Earls; however, it appears from the video that Sergeant Baxter left the room.
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 15 of 31 station, the answer to this question is generally obvious, in the absence of
unusual facts.” Id. (internal citations omitted).
[30] In Ruiz, our Supreme Court concluded that the “station-house questioning here
both resembles the Miranda paradigm and exhibits the coercive pressures that
Miranda targeted.” Id. The Court noted that the interview took place in an
isolated room at the station house “with multiple officers employing various
interrogation tactics for almost an hour, trying to convince their suspect to
incriminate himself.” Id. The coercive pressures used by the officers included:
(1) adding a second officer who had a more aggressive style than the first
officer; (2) using subterfuge and lying to the defendant; (3) telling the defendant
that the conduct was “not a big deal”; (4) suggesting that if the defendant did
not speak about what he had done, the officers would make things worse for
him in the future; (5) telling the defendant that they knew the allegations were
true; (6) engaging in a “prolonged, persistent, and accusatory questioning”; (7)
and instructing the defendant to “stay put” even though he needed to pick up
his daughter. Id. at 682-83. The Court concluded that the second custody
factor was met because “[t]hese types of coercive pressures, applied in a station-
house interrogation, are precisely what induced Miranda’s warning
requirements.” Id. at 683.
[31] Again, the circumstances here are much different than in Ruiz. Although the
questioning was conducted at the station house and the overall interaction was
lengthy, the coercive pressures evident in Ruiz were not exhibited here as
evidenced by the record and video of the questioning. The officers did not
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 16 of 31 engage in coercive, aggressive interrogation practices and did inform Crabtree
of his rights.
[32] Our Supreme Court acknowledged in Ruiz that “a person is not in custody
simply because he is questioned at a police station, or because he is an
identified suspect, or because he is in a coercive environment.” Id. Rather,
custody “depends on the totality of the circumstances.” Id. Under the totality
of the circumstances here, we agree with the trial court that Crabtree was not in
custody during the questioning at issue. Because Crabtree was not in custody,
the officers were not required to inform Crabtree of his Miranda warnings, and
Crabtree’s statements to the officers were admissible at trial.
B. Second Miranda Warning
[33] Crabtree concedes that he was given Miranda warnings prior to the polygraph
examination. Crabtree argues, however, that he should have been re-read his
Miranda rights after the polygraph examination, and prior to subsequent
questioning. Crabtree admits that, although the polygraph waiver does not
explicitly mention Miranda, the provisions of the waiver “are substantially
identical to the Miranda warnings.” Appellant’s Br. p. 18. We have concluded,
supra, that Crabtree was not in custody and, thus, was not entitled to Miranda
warnings, much less a second Miranda warning. Even if Crabtree was entitled
to be informed of the Miranda warnings, his argument that he was entitled to a
second Miranda warning fails.
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 17 of 31 [34] In support of Crabtree’s argument, he relies on Partlow v. State, 453 N.E.2d 259,
269 (Ind. 1983), cert. denied, in which our Supreme Court addressed a similar
argument and held:
[I]f at the commencement of custodial interrogation the suspect has been given an advisement and made a waiver in accordance with the guidelines in Miranda, that advisement “need not be repeated so long as the circumstances attending any interruption or adjournment of the process [are] such that the suspect has not been deprived of the opportunity to make an informed and intelligent assessment of his interests involved in the interrogation, including the right to cut off questioning. Michigan v. Mosley, [(1975) 423 U.S. 96, 96 S. Ct. 321, 46 L.Ed.2d 313].” Owens v. State, (1982) Ind., 431 N.E.2d 108, 110. Defendant showed that he had a continuing understanding of his rights and was willingly and knowingly proceeding with the interrogation by the police. There is no merit to the defendant’s claim that his statement was inadmissible on this ground.
[35] Similarly, in Shane v. State, 615 N.E.2d 425, 427 (Ind. 1993), our Supreme
Court observed: “after a Miranda advisement has been made[,] the advisement
need not be repeated if the circumstances surrounding the interruption or
adjournment of the process have not deprived the suspect of the opportunity to
make an informed and intelligent assessment of his interests involved in the
interrogation.” The Court held that, “if the interruption is part of a continual
effort by the police to gather information from the suspect, there can be little
doubt as to the suspect’s interests in the matter.” Shane, 615 N.E.2d at 427.
The Shane Court concluded that the defendant did not need to be re-advised of
his rights because “[the defendant] voluntarily appeared at the police station,
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 18 of 31 received the Miranda advisement, executed a waiver of those rights without the
force of threats, promises, or coercion, consented to providing officials with
physical samples, and answered questions upon his return to the police station.”
Shane, 615 N.E.2d at 428.
[36] Here, Crabtree was read and waived his rights and voluntarily took part in the
polygraph examination with Sergeant Roseberry. Crabtree then stayed in the
same location where he was questioned by Sergeant Roseberry. Crabtree asked
Sergeant Roseberry to reschedule; spoke with Sergeant Baxter “[m]inutes” later;
asked Sergeant Baxter if he could reschedule; and subsequently spoke with
Detective Earls. Tr. Vol. II p. 219.
[37] There was no significant interruption of the interview between the polygraph
process and the questioning by the other officers. Further, during both the
polygraph and the subsequent questioning, Crabtree was well-aware of the
nature of the allegations against him, which did not change between the
polygraph and the questioning. This was a continual effort by the officers to
gather information from Crabtree, and Crabtree’s interests did not change.
There is no indication that Crabtree was deprived of the opportunity to make an
informed and intelligent assessment of his interests involved in the
interrogations. Accordingly, even if Crabtree was entitled to Miranda warnings,
a second Miranda warning after the polygraph process and before the other
officers questioned Crabtree was not warranted in this case. See Ogle v. State,
698 N.E.2d 1146, 1148-49 (Ind. 1998) (finding a second Miranda warning was
not required when the defendant was brought to the police station for
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 19 of 31 questioning; the defendant waived his Miranda rights; the police stopped the
interrogation to investigate part of the defendant’s story before resuming his
interrogation “less than an hour later”; and the defendant was not readvised of
his Miranda rights because the interruption was a “continual effort by the police
to gather information”).
C. Right to Remain Silent
[38] Next, Crabtree argues that officers violated his right to remain silent under the
Fifth Amendment. According to Crabtree, he twice invoked his right to remain
silent by asking to reschedule the interview. Crabtree contends that, because
the officers did not stop the interrogation when Crabtree asked to reschedule,
his statements to the officers were inadmissible.
[39] It is well-settled that when an individual “‘indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.’” Washington v. State, 808 N.E.2d 617, 623 (Ind. 2004) (quoting Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966)). “An assertion of Miranda rights must be clear and unequivocal, and in determining whether a person has asserted his or her rights, the defendant’s statements are considered as a whole.” Clark v. State, 808 N.E.2d 1183, 1190 (Ind. 2004). “Although there are no particular words of legal magic to cut off questioning, a suspect must do more than express reluctance to talk” in order to invoke his right to remain silent. Powell v. State, 898 N.E.2d 328, 337 (Ind. Ct. App. 2008). Review of whether an individual has invoked his right to remain silent is “intensely fact-sensitive.” Id. (citing Haviland v. State, 677 N.E.2d 509, 514 (Ind. 1997)).
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 20 of 31 State v. Battering, 85 N.E.3d 605, 607 (Ind. Ct. App. 2017) (“Battering”). Law
enforcement must “scrupulously honor” a defendant’s right to end questioning.
Mendoza-Vargas v. State, 974 N.E.2d 590, 595 (Ind. Ct. App. 2012).
[40] The United States Supreme Court explained the purpose of requiring an
accused to unambiguously assert his right to remain silent:
There is good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously. A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that “avoid[s] difficulties of proof and . . . provide[s] guidance to officers” on how to proceed in the face of ambiguity. [Davis v. United States, 512 U.S. 452, 458-59, 114 S. Ct. 2350 (1994)]. If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression “if they guess wrong.” Id., at 461, 114 S. Ct. 2350. Suppression of a voluntary confession in these circumstances would place a significant burden on society’s interest in prosecuting criminal activity. See id., at 459-461, 114 S. Ct. 2350; Moran v. Burbine, 475 U.S. 412, 427, 106 S. Ct. 1135, 89 L.Ed.2d 410 (1986). Treating an ambiguous or equivocal act, omission, or statement as an invocation of Miranda rights “might add marginally to Miranda’s goal of dispelling the compulsion inherent in custodial interrogation.” Burbine, 475 U.S., at 425, 106 S. Ct. 1135. But “as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process.” Id., at 427, 106 S. Ct. 1135; see Davis, supra, at 460, 114 S. Ct. 2350.
Berghuis v. Thompkins, 560 U.S. 370, 381-82, 130 S. Ct. 2250, 2260 (2010).
When law enforcement fails to scrupulously honor a defendant’s unambiguous
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 21 of 31 right to remain silent, any subsequent statement made by the defendant is
inadmissible. Mendoza-Vargas, 974 N.E.2d at 597.
[41] Prior to Crabtree’s polygraph examination, Sergeant Roseberry advised
Crabtree of his right to remain silent, which Crabtree indicated that he
understood.8 When Sergeant Roseberry was interviewing Crabtree after
Crabtree’s polygraph examination, the following conversation occurred:
A. I, I don’t want to cut you off or anything--
Q. No, you’re fine.
A. --I, I’d be willing to talk to you more, but is there anyway, maybe, we could do it another day?
Q. Well, if, if you give me just a moment. Let me go talk to the investigator. I’m sure he will want to talk to you a little bit, if you wouldn’t mind waitin’. Okay? I’ll be right back.
Tr. Vol. III pp. 36-37. Subsequently, when speaking with Sergeant Baxter, the
following colloquy occurred:
A. . . . I appreciate you right now, but is there— I have a, a whole lot to think about. . . . [I]s there a time we could schedule to talk later?
8 At the suppression hearing, the video recording was also transcribed into the transcript of the hearing. We, accordingly, will quote portions from the transcript at the suppression hearing for consistency.
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 22 of 31 Q. Yeah, you -- If you wanna talk later, what you need to do is probably talk to, to [Earls] about that. He is, he is the investigator that’s in charge here. Okay? You can talk to him any time you want, as much as you want, but, you know, I’m gonna tell ya that it’s been— you know, the pause in your voice and the, the hesitation, uh, tells me a lot. Like, “Man, I gotta go think.” I mean, this is-
A. No, I’m innocent, just—
Q. It’s like, “I gotta go think about this.”
A. I’m not trying to think about this or tryin’ to figure out a lie or anything like that. I’m just—
Tr. Vol. II p. 210. Later, Crabtree continued the conversation with Sergeant
Baxter as follows:
A. I have one question to ask. If I tell you what I’m about to tell you?
Q. Okay.
A. Can I still go home to my mom’s tonight?
Q. I think we could do that.
A. (Crying)
Q. Hey, we’ll get through this okay? Will [sic] get through this, let’s get through it.
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 23 of 31 Id. at 215. Crabtree went on to disclose his molestation of L.C. 9
[42] Here, Crabtree argues that he unequivocally invoked his right to remain silent
when he asked: “I, I’d be willing to talk to you more, but is there anyway,
maybe, we could do it another day?” and “[ ] I appreciate you right now, but is
there— I have a, a whole lot to think about. Is, is, is there a time we could
schedule to talk later?” Tr. Vol. III pp. 36-37; Tr. Vol. II p. 210.
[43] Indiana courts have found the following phrases or statements indicated the
defendants’ unequivocal invocation of their Fifth Amendment right to remain
silent: (1) “I’m done with answering questions right now[,]” Battering, 85
N.E.3d at 608; (2) “I’m done talking,” Risinger v. State, 137 N.E. 3d 292, 299
(Ind. Ct. App. 2019), trans. denied; and (3) “I just want to get this over with . . . I
want to go back home,” and “They won’t take me home.” State v. Glaze, 146
N.E.3d 1086, 1092 (Ind. Ct. App. 2020).
[44] On the other hand, Indiana courts have found that certain statements, followed
by the defendant continuing to speak with detectives, did not unequivocally
invoke the defendant’s Fifth Amendment right to remain silent: (1) “Yeah, I’m
ready to cut this off cause, I mean I feel like ya’ll [sic] getting ready [to] start
asking me some crazy questions, you know what I’m saying and Man I’m done
man,” coupled with the defendant’s continuing to speak “without pause” to
9 Crabtree contended that he awoke to L.C. touching him and that, if he coerced L.C. to do so, it was while Crabtree was sleeping.
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 24 of 31 detectives even when told he did not have to do so, Powell, 898 N.E.2d at 337;
(2) “[I’m] through with this”, and “I said I’m through with it. I didn’t kill
nobody, you keep insisting I did and I didn’t” and then continued to speak,
Haviland, 677 N.E.2d at 514; and (3) “This is crazy. Y’all might as well send
me across the street (referring to jail)[,]” “Please, man, you might as well take
me across the street[,]” and “You already tryin’ to charge me with this. So
leave me alone and take me over here[,]” in combination with the defendant’s
decision to continue talking. Clark, 808 N.E.2d at 1190.
[45] We cannot find that Crabtree’s statements unequivocally invoked his right to
remain silent. Importantly, in both statements, Crabtree was clear that he
wanted to answer the officers’ questions but preferred to do so later. Crabtree
did not assert that he was “done” answering questions or that he no longer
wanted to answer questions. Instead, Crabtree asked if he could reschedule
because he had a lot of things to think about—not that he wished to invoke his
right to remain silent. In response to the first request to reschedule, Sergeant
Roseberry said, “Well, if, if you give me just a moment. Let me go talk to the
investigator. I’m sure he will want to talk to you a little bit, if you wouldn’t
mind waitin’. Okay? I’ll be right back.” Tr. Vol. III pp. 36-37. In response to
the second request to reschedule, Sergeant Baxter said, “Yeah, you -- If you
wanna talk later, what you need to do is probably talk to, to [Earls] about that.
He is, he is the investigator that’s in charge here.” Tr. Vol. II p. 210. In both
instances, Crabtree continued to answer questions. Asking to reschedule
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 25 of 31 questioning and then continuing to answer questions is different than asserting
one’s right to remain silent and declining to answer questions at all.
[46] We cannot say that Crabtree unambiguously asserted his right to remain silent.
Accordingly, law enforcement did not violate Crabtree’s Fifth Amendment
right to remain silent. Crabtree has failed to demonstrate that the trial court
erred by admitting his statements to the officers at his trial.
D. Harmless Error
[47] Finally, even if the trial court abused its discretion by admitting Crabtree’s
statements, we find that any error was harmless. Errors in the admission or
exclusion of evidence are to be disregarded as harmless error unless they affect
the substantial rights of the party. Mendoza-Vargas, 974 N.E.2d at 597. To
determine whether an error in the introduction of evidence affected the
appellant’s substantial rights, we assess the probable impact of that evidence
upon the jury. Id. “A federal constitutional error is reviewed de novo and must
be harmless beyond a reasonable doubt.” Davies v. State, 730 N.E.2d 726, 735
(Ind. Ct. App. 2000) (internal citations and quotations omitted), trans. denied.
[48] Crabtree contends that, without the information Crabtree provided in his police
interview, the only evidence to support his conviction is L.C.’s CAC interview.
Crabtree argues that L.C.’s CAC interview is “far from overwhelming, and
taken alone, raises substantial questions as to whether [Crabtree] would have
been convicted on this evidence alone.” Appellant’s Br. p. 28. We disagree.
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 26 of 31 [49] Although L.C. was young, her interview was compelling. She described the
details of the molestations, including using sensory descriptions to articulate the
events as “hurting” her, Tr. Vol. II p. 155; it felt like Crabtree was “peeing on
[her] hand,” Id. at 157; and, when Crabtree made L.C. put her mouth on his
penis, it tasted like “solid bread.” Id. at 160. L.C. can also be seen in the video,
as the transcript points out, “demonstrating with hand gesture[s]” when she
described certain actions. Id. at 152.
[50] Our position does not waver merely because L.C. was hesitant to revisit and
restate the facts at the protected persons hearing. As depicted in the video of
the protected persons hearing, L.C. “enter[ed] the courtroom and c[ame] to a
dead stop and stare[d] at the defendant when she s[aw] him.” Id. at 61. L.C.
then made statements while hiding under the witness stand. L.C. testified that
she told her mother that Crabtree did things to her “[i]n the bed” while her
mother was sleeping next to her. Id. at 80. L.C. also disclosed that Crabtree
touched her with his hand. Although L.C. was significantly less forthcoming at
the protected persons hearing, L.C.’s testimony at the protected persons hearing
was consistent with her CAC interview.
[51] The fact that L.C.—a four-year-old child—described the molestation differently
than an adult would have, does not render her testimony less compelling. Any
error in admitting Crabtree’s statements was harmless in light of L.C.’s CAC
interview and testimony at the protected persons hearing.
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 27 of 31 II. Inappropriate Sentence
[52] Finally, Crabtree argues that his sentence is inappropriate. 10 Crabtree asks that
we review and revise his sentence pursuant to Indiana Appellate Rule 7(B),
which provides that we may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, we find that the sentence “is
inappropriate in light of the nature of the offense and the character of the
offender.” The defendant bears the burden to persuade this court that his or her
sentence is inappropriate. Wilson v. State, 966 N.E.2d 1259, 1266 (Ind. Ct. App.
2012) (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)), trans.
denied.
[53] In Indiana, trial courts can tailor an appropriate sentence to the circumstances
presented. Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017), trans.
denied. In conducting our review, we do not look to see whether the defendant’s
sentence is appropriate or “whether another sentence is more appropriate; rather
the question is whether the sentence imposed is inappropriate.” Helsley v. State,
43 N.E.3d 225, 228 (Ind. 2015) (citations and quotations omitted and emphasis
supplied). “We begin this analysis with ‘substantial deference to the trial
court’s sentence,’ then ‘independently examine’ the defendant’s offenses and
10 In his summary of the argument, Crabtree argues that the trial court “abused its discretion” when it sentenced him to the maximum allowed sentence. Appellant’s Br. p. 9. In his argument section, however, Crabtree asks us to revise his sentence pursuant to Indiana Appellate Rule 7(B), which allows us to modify a defendant’s sentence in light of the nature of the offense and the defendant’s character. Because the latter is the argument for which Crabtree more thoroughly articulates and cites authority, we will consider Crabtree’s argument as one of an inappropriate sentence.
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 28 of 31 character.” Taylor v. State, 86 N.E.3d 157, 165 (Ind. 2017) (quoting Satterfield v.
State, 33 N.E.3d 344, 355 (Ind. 2015)), cert. denied.
[54] We look to the statutory range established for the classification of the offense.
The jury found Crabtree guilty of child molesting, a Level 1 felony. “A person
who commits a Level 1 felony child molesting offense . . . shall be imprisoned
for a fixed term of between twenty (20) and fifty (50) years, with the advisory
sentence being thirty (30) years.” Ind. Code § 35-50-2-4(c). Crabtree received
the maximum sentence of fifty years based on the trial court’s finding that
Crabtree was one of the worst of the worst offenders who did “the most heinous
thing a dad could do.” Appellant’s App. Vol. II p. 16.
[55] First, when reviewing a sentence, we consider the nature of Crabtree’s offense.
Our analysis of the “nature of the offense” requires us to look at the extent and
depravity of the offense and focus less on comparing the facts at hand to other
cases. Sorenson v. State, 133 N.E.3d 717, 729 (Ind. Ct. App. 2019), trans. denied.
Crabtree molested his four-year-old daughter “a lot of times.” Tr. Vol. II p.
147. Crabtree was in a position of care and trust of his young daughter and
Crabtree took advantage of that position. Crabtree molested L.C. in his bed
while his wife was also sleeping in the bed; in another downstairs bedroom; and
on a couch. L.C. described in age-appropriate, yet graphic terms, the acts of
molestation, and she described that sometimes Crabtree “hurt” her when he
molested her. Id. at 155. Crabtree showed L.C. what she described as a “naked
video” on his phone. Id. at 156. L.C. articulated detailed descriptions of the
molestations, including that it felt as if Crabtree “was peeing on [her] hand,”
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 29 of 31 and that Crabtree made L.C. put her mouth on his penis. Id. at 157, 160. L.C.
described that Crabtree sometimes “pulls [her] pants off” when he rubs “[i]nside
[her] butt-crack,” and that sometimes, “he spreads out [her] legs so he can do it
even more.” Id. at 148. In summary, L.C. described many different acts of
sexual conduct—both what L.C. was forced to perform and forced to submit
to—and L.C. was clear that these incidents occurred multiple times. Crabtree
could have faced multiple counts for the acts committed and has benefited from
the State’s decision to charge him with one count of child molestation.
[56] Second, we examine Crabtree’s character. An analysis of the offender’s
character involves a broad consideration of the defendant’s qualities, life, and
conduct. Adams v. State, 120 N.E.3d 1058, 1065 (Ind. Ct. App. 2019).
Crabtree’s prior criminal history, although not as recent, includes four prior
felony burglary convictions. Additionally, five counts of unlawful possession of
a firearm by a serious violent felon, Level 4 felonies, were pending at the time
of Crabtree’s sentencing on the child molesting charge. Crabtree’s criminal
history does not reflect well upon his character. See Rutherford v. State, 866
N.E.2d 867, 874 (Ind. Ct. App. 2007) (“[A]lthough Rutherford’s criminal
history is not aggravating to a high degree, it still is a poor reflection on his
character.”). Crabtree’s PSI also articulates a history of drug use, which the
trial court noted as relevant to Crabtree’s sentence. Crabtree admitted to using
cocaine on a few occasions in 2018 and 2019, and Crabtree failed a Department
of Child Services drug screen in January 2019 by testing positive for cocaine.
Crabtree also admitted to past, regular marijuana use.
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 30 of 31 [57] Given Crabtree’s repeated molestation of his very young daughter, criminal
history, and drug use, we decline to revise Crabtree’s sentence pursuant to
Indiana Appellate Rule 7(B) because Crabtree’s sentence is not inappropriate.
Conclusion [58] The trial court did not abuse its discretion in admitting into evidence Crabtree’s
voluntary statements to the officers, and Crabtree’s sentence is not
inappropriate. We affirm.
[59] Affirmed.
Kirsch, J., and Pyle, J., concur.
Court of Appeals of Indiana | Opinion 19A-CR-2128 | September 2, 2020 Page 31 of 31