MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Dec 04 2015, 8:27 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Alan W. Roles Gregory F. Zoeller Coleman, Roles & Associates, PLLC Attorney General of Indiana Louisville, Kentucky J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Leo John Conley, December 4, 2015 Appellant-Defendant, Court of Appeals Case No. 31A01-1404-CR-157 v. Appeal from the Harrison Superior Court State of Indiana, The Honorable Roger D. Davis, Appellee-Plaintiff. Judge Trial Court Cause No. 31D01-1208-FA-570
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 1 of 31 [1] Leo John Conley appeals his convictions for nineteen counts of child molesting
as class A felonies and one count of child molesting as a class C felony. Conley
raises four issues which we consolidate and restate as:
I. Whether the trial court abused its discretion by admitting the results of a polygraph examination;
II. Whether the court erred by denying Conley’s motion for a mistrial; and
III. Whether the evidence is sufficient to sustain Conley’s convictions for fifteen counts of child molesting as class A felonies.
We affirm.
Facts and Procedural History
[2] In 2004, Conley, born in 1963, married the mother of N.P. At the time, N.P.’s
mother did not have custody of N.P., born in 1999, but Conley provided
financial assistance and N.P. went to live with her mother and Conley in 2005
or 2006. N.P. called Conley both John and Dad. Conley normally walked
around the house in boxer shorts and nothing else which made N.P. feel very
uncomfortable.
[3] N.P.’s cousin, A.D., born in 1996, visited N.P. on multiple occasions. On a
Saturday morning, A.D., N.P., and Conley were beneath covers watching
cartoons, and Conley touched N.P. in her genitals. Other times, Conley
touched N.P.’s vagina in the bedroom, the kitchen, the living room, and while
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 2 of 31 going to Wal-Mart, and he touched her clitoris. Conley also put his mouth
“down there” and would lick three or four times. Transcript I at 180.1
[4] While Conley and N.P. were standing in the kitchen when she was about seven
or eight years old, he kept talking about putting his penis in her mouth, saying
that it would be fun and that she should try it, and then told her to “do it.” Id.
at 181. Conley pulled down his red boxers and then put his penis in N.P.’s
mouth for “[f]ive ten minutes if that.” Id. at 182. He ejaculated into her
mouth. N.P. found the ejaculate to be salty and have “about the texture of
glue,” and she ran to the trash can and spit it out. Id. at 183.
[5] Another time when N.P. was ten or eleven years old, Conley, N.P., and A.D.
were in a bedroom, N.P. and A.D. were face down on a bed, and Conley stood
behind them. Conley put lotion onto a “long and tan and double-headed” dildo
that he kept in a locked black filing cabinet and inserted the dildo into N.P.’s
anus. Id. at 185.
[6] Conley also kept DVDs and pornographic magazines in the filing cabinet, and
Conley and N.P. watched movies of “people having sex” twice a month on
DVD or on a computer in the living room. Id. at 189. While they watched the
movies, Conley would either be rubbing his penis or rubbing N.P. During one
1 Conley’s notice of appeal requested the transcript of certain portions of the record, and a transcript containing these portions was filed on October 20, 2014. Following a motion by the State and an order from this court, a transcript with the remaining portions of the transcript was filed on April 13, 2015. We cite to the transcript that was filed on October 20, 2014, as “Transcript I,” and the transcript filed on April 13, 2015, as “Transcript II.”
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 3 of 31 time watching pornography, Conley rubbed N.P.’s shoulders and became
aroused.
[7] At some point, Conley performed oral sex on A.D. Specifically, he told A.D.
to “get on [her] back and . . . pull [her] pants down and lift [her] legs up,” and
he then proceeded to lick her vagina. Id. at 249. On one occasion, A.D. was in
the bedroom counting out money because she and N.P. were playing a game,
Conley entered the room, leaned down, and started to “finger” her. Id. A.D.
lost count, and Conley walked out laughing. Conley touched her female sex
organ with his fingers more than ten times.2 Conley also placed lotion on his
penis and placed it into A.D.’s anus on multiple occasions.3 After anal sex,
A.D. had a “really hard time pooping” and went to see her doctor. Id. at 253.
[8] One time when A.D. was exiting the bathroom and Conley and N.P. were on
the bed, Conley told A.D. to come over and suck his penis, and A.D. did so.
Conley never attempted vaginal intercourse with A.D. because he said “it
would get him caught.” Id. at 258. A.D. was seven years old “when all this
stuff” with Conley started happening and it continued until she was fourteen
years old. Id. at 260.
2 A.D. initially testified that Conley touched her vagina with his fingers more than ten times. She testified that Conley touched her vagina with his fingers “[a] lot,” that it was more than ten times, and that she was “not really sure” whether it was “a lot more than twenty.” Transcript I at 248. As detailed below, A.D. clarified that Conley’s fingers did not touch her vagina but that he rubbed her clitoris and that his fingers went inside her vaginal lips. 3 When asked how many times Conley put his penis in her anus, A.D. answered: “Twenty or fifteen times, I’m not really sure on the amount.” Id. at 250.
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 4 of 31 [9] N.P. talked to A.D. about Conley’s actions, and A.D. told her not to tell people
because N.P. would “get in trouble.” Id. at 191. At some point, A.D. told N.P.
that she was ready to “come out and tell.” Id. at 202. N.P. initially denied
being molested because Conley told her that if she said anything that she would
be taken away from her mother, and she was afraid they were going to lose
their home because Conley was the only person working. The Department of
Child Services became involved and contacted the Indiana State Police.
[10] On October 25, 2011, Indiana State Police Detective David Miller met with
Conley at the Harrison County DCS Office. On November 10, 2011, Conley
arrived at the Indiana State Police Sellersburg post and met with Delmar Gross,
a polygraph examiner with the Indiana State Police. Conley informed Gross
that he had talked to a couple of lawyers and that one of the attorneys told him
that the polygraph results should not be admissible in court. Gross asked
Conley if he had an attorney, and Conley said “no he had not hired one at that
time.” Id. at 326.
[11] Prior to taking the polygraph examination, Gross reviewed a Stipulation as to
Admissibility of Polygraph Examination Result (the “Stipulation”). The
Stipulation stated that Conley “after reading and understanding his rights and
signing a waiver, now enters into an agreement to stipulate as to the
admissibility of a polygraph examination to be taken” by him on November 10,
2011. State’s Exhibit 1 at 1. The Stipulation also stated that the “written report
of the results of said examination will be introduced into evidence, without an
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 5 of 31 objection by either the State, [Conley,] or counsel thereof, at the time of the
examiner’s testimony at any trial or hearing.” Id. at 2. It also provided:
10. That [Conley] hereby certifies that Dave Miller, a detective with the Indiana State Police, has thoroughly discussed that polygraph examination results are not allowed to be admitted as evidence under current court rules, and that [Conley] hereby knowingly, voluntarily, and expressly waives his right to have such evidence excluded from any trial, hearing, or proceeding.
11. That [Conley] hereby certifies that Dave Miller and/or an agent of the Indiana State Police has thoroughly discussed the taking of a polygraph examination; the effect and meaning of this stipulation, including the admissibility of the examiner’s report, testimony and/or opinions in any trial or hearing involving [the] offense that has been alleged in the above matter; and, that the examiner’s report, testimony and/or opinions could result in [Conley] being charged and/or convicted of the offense alleged in this matter.
12. That the State and [Conley] hereby expressly waive any and all objections of said examiners’ testimony as to the competency, weight, relevancy, remoteness, or admissibility of such testimony based on legal, judicial, social policy, due process of law, and/or such rules of evidence as might otherwise govern.
Id. at 2-3.
[12] Gross read the Stipulation to Conley, and Conley took a break for about five
minutes to think about it in the lobby or outside and came back in and agreed
with the Stipulation. Gross also reviewed a waiver of rights form informing
Conley of his rights. Gross and the waiver of rights form informed Conley of
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 6 of 31 his right to remain silent, that anything he said could be used against him in
court, that he had the right to talk to a lawyer for advice before they asked any
questions and to have him or her with him during questioning, that a lawyer
would be appointed for him before questioning if he wished, and that he had
the right to stop answering at any time until he talked with a lawyer. Conley
appeared to understand the rights and the Stipulation, did not appear to be
under the influence of any drugs or narcotics, and was cooperative. He agreed
with everything in the form, said that he understood, and signed the form and
the Stipulation.4
[13] Gross asked Conley what his understanding was as to why he had been asked
to take a polygraph examination, and Conley said that A.D. had said “some
stuff” of a sexual nature about him. Id. at 317. Gross asked Conley if his penis
ever touched A.D. in a sexual manner, and Conley answered no. Gross then
asked him if he was being truthful when he said that his penis never touched
A.D. in a sexual manner, and Conley answered yes. 5 Based on the charts and
Conley’s answers, Gross concluded that Conley was being deceptive. Gross
reported to Conley that he had failed the test, and Conley said that he did not
touch A.D. or N.P. and elected to end the interview.
4 We acknowledge that the record is somewhat unclear as to the timing of the signatures on the Stipulation and the waiver of rights form. The Stipulation was dated November 9, 2011, and the waiver of rights form was dated November 10, 2011, but both were file-stamped at 9:27 a.m. on November 9, 2011. Nonetheless, defense counsel asserted that Conley signed the documents on November 10, 2011, and Conley states on appeal that he “signed the waiver and the stipulation on November 10, 2011.” Appellant’s Brief at 12. 5 During the polygraph examination, Gross asked about only A.D.
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 7 of 31 [14] At some point, Harrison County Sheriff’s Lieutenant Nicholas Smith went to
Conley’s home, and Conley’s wife gave him permission to search the home.
Lieutenant Smith located a bottle of lotion next to the bed as described by N.P.
and the locked black metal filing cabinet. Conley’s wife obtained the keys to
the filing cabinet, and Lieutenant Smith discovered pornography and numerous
dildos including a double-headed dildo. Lieutenant Smith also took a computer
because N.P. had alleged that she watched pornography with Conley, and the
United States Secret Service recovered internet browsing history files related to
a vast number of pornography sites.
[15] On May 22, 2012, Lieutenant Smith obtained a search warrant to view, inspect,
and photograph Conley’s pubic region and genitalia because N.P. and A.D.
had alleged that his pubic region was shaved. Lieutenant Smith determined
that Conley’s pubic region was shaved and photographed his penis and pubic
region.
[16] On August 10, 2012, the State charged Conley with nineteen counts of child
molesting as class A felonies and one count of child molesting as a class C
felony. Counts I to XV related to A.D., and Counts XVI to XX related to N.P.
[17] On July 23, 2013, Conley filed a motion to suppress the polygraph examination
results. He argued that the Stipulation did not conform to well-established
prerequisites, did not constitute a valid contract, and was inadmissible because
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 8 of 31 he did not waive his right to counsel. On August 6, 2013, the court held a
hearing on Conley’s motion to suppress, and denied it two days later.6
[18] In a letter dated October 18, 2013, Brandon Harley, an inmate housed with
Conley, sent a letter addressed to prosecutors in which Harley stated that
Conley said that he had sex with those two “little girls” and that he was not in
the right state of mind. State’s Exhibit 4. At some point, Lieutenant Smith
interviewed Harley, and Harley said that he overheard Conley speaking with
another inmate and admitted that he had sexual intercourse “with those girls.”
Transcript II at 239. Harley had already been convicted and sentenced for the
crimes he committed and did not attempt to “get a deal or break” in exchange
for his information. Id. at 250.
[19] A jury trial began on February 4, 2014. During opening statement, the
prosecutor said: “What will you hear from the defense?” Transcript I at 101.
The prosecutor also asserted that the defense was going to say that N.P. likes to
lie, that A.D. made up a story to protect her cousin, and that the defense would
“not be able to explain why she (inaudible) make this up.” Id. at 98. After the
prosecutor’s opening statement, defense counsel moved for a mistrial and
argued that the prosecutor indicated that the burden was on Conley to prove
6 At the hearing, the prosecutor stated that the parties would jointly move to admit a video recording of the advisements regarding the polygraph. The court stated that the DVD was admitted into evidence by agreement of the parties. No evidence was presented, and the parties’ attorneys merely argued. At the end of the hearing, the court stated “thank you and let me get ahold of that DVD then.” Transcript I at 48. The record on appeal does not include a copy of the DVD.
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 9 of 31 “why [A.D.] would have made those statements in confirming . . . or
statements of what happened we have to come up with the reasons.” Id. at 104.
The prosecutor responded that he did not say that the defense had a burden to
prove anything. The court took a break to listen to the opening statement, and
after further discussion, found that the prosecutor’s statements did not
necessarily implicate Conley’s Fifth Amendment right to remain silent. The
court noted the frequency and context of the prosecutor’s statements, the
previous jury instructions that opening statements were not evidence but rather
what the lawyer expects the evidence will be, and that the defendant was not
required to present any evidence to prove his innocence or explain anything,
and denied the motion. Defense counsel requested an admonition without
reference to the specific language used by the prosecutor, and the court
admonished the jury.
[20] A.D., N.P., Gross, and Lieutenant Smith testified to the foregoing facts. The
prosecutor asked A.D. “when you say he fingered you do you mean his finger
actually went inside your vagina?” Id. at 249. A.D. answered: “I don’t really
remember.” Id. at 250. During direct examination she testified that Conley
rubbed on the outside, that she did not think that he ever actually went in, that
the act of “getting fingered” means “rubbing on the clit or sticking your fingers
in the vagina,” that Conley fingered her, and that her clit is located on the
outside. Id. at 260. On cross-examination of A.D., the following exchange
occurred:
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 10 of 31 Q. And I was a little confused in your testimony about whether he put his fingers inside your vagina. You said he rubbed, he didn’t then the questions that the Prosecutor asked about fingering, you indicated that he did. Then you came back and said he didn’t I’m trying to be clear?
A. My definition of fingering is either putting the fingers in the vagina or rubbing on the clit.
Q. So he didn’t put his fingers in your vagina he just rubbed on it?
A. Not that I remember.
Q. Is that right?
A. Yes.
Q. The clit you think is outside the vagina is that right?
Q. So he rubbed outside?
Id. at 276-277.
[21] On redirect examination, A.D. testified that she did not know what the outer
part of her vagina was called but had been told that it is called the clit, that she
knew what the lips on the vagina are, that it was possible to rub on the lips of
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 11 of 31 the vagina and not be on the inside of the vagina, that her definition of being
inside the vagina was “actually penetrating into . . . in the canal,” and that
Conley was inside of her vaginal lips. Id. at 288. When later asked “[a]re the
lips part of the vagina,” A.D. answered: “In a way. I would suppose, yes.” Id.
at 294. She testified that it was possible to pull the lips apart and that Conley
“did stick his finger between” her vaginal lips. Id. at 296. On recross-
examination, defense counsel asked: “You previously testified that his fingers
had rubbed you, his fingers were outside the vagina, is that correct?” Id. at 297.
A.D. answered: “Yes.” Id. at 298. On redirect examination, A.D. clarified that
her answer was according to her definition of a vagina.
[22] Defense counsel introduced Defendant’s Exhibit A, a document file-stamped
November 9, 2011, which stated:
The Court being duly advised as to the terms of the proceeding stipulation . . . and hearing having been held now finds that Leo J. Conley has thoroughly discussed with an agent of the Indiana State Police and/or counsel the nature and consequences of submitting to a stipulated polygraph examination and specifically that Leo J. Conley has knowingly and voluntarily with or without the advice of counsel waived . . . says her right . . . to have such evidence excluded at any trial, hearing, or proceeding.
Id. at 333. Gross stated that this document was signed by a judge and appeared
to have been signed on November 9, 2011. Defense counsel moved to admit
Defendant’s Exhibit A, and the prosecutor argued that the order had been
vacated and rescinded and was irrelevant. Defense counsel conceded that the
order was vacated. The court stated: “[D]efendant’s exhibit A will be held onto
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 12 of 31 and it’ll be part of the record but it’s uh . . . defendant’s A is not admitted . . . .”
Transcript II at 73.
[23] Harley testified that he was incarcerated in the same pod with Conley, he did
not want to be there testifying, he sent a letter to the prosecutor stating that
Conley said that he had sex “with them two little girls,” Conley said that he
“wasn’t in his right state of mind,” he “used that dildo in them two little girls,”
and that he had “a lawyer out of Louisville.” Id. at 86, 88. He also testified
that no offer was made to him in exchange for his testimony.
[24] A.D.’s mother testified that A.D. always wanted to spend the night at Conley’s
residence, but that changed at some point and A.D. no longer wanted to do so.
[25] Conley testified that he provided N.P.’s mother with financial and moral
support to regain custody of N.P. and that N.P. came to live with him and her
mother when she was six years old. Conley testified that he was afraid to be
alone with N.P. and that N.P.’s father was serving time for child molesting. He
denied the charges and testified that A.D. and N.P. were lying. He testified that
his understanding regarding the polygraph examination was “regardless
whatever happened the results were not admissible in Court.” Transcript I at
385. He reached that understanding because Alex Stone, a lawyer, told him
that. He testified that he read and signed the Stipulation.
[26] The jury found him guilty as charged. The court sentenced him to concurrent
terms of thirty-two years each for Counts I through XV, the charges of child
molesting as class A felonies related to his acts against A.D., thirty-two years
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 13 of 31 each for Counts XVI through XIX, the charges of child molesting as class A
felonies related to his acts against N.P., to be served concurrent with each other
and consecutive to Counts I through XV, and five years for Count XX, child
molesting as a class C felony for his act related to N.P., to be served concurrent
with Counts XVI through XIX and consecutive to Counts I through XV. Thus,
the court sentenced Conley to an aggregate sentence of sixty-four years.
Discussion
I.
[27] The first issue is whether the trial court abused its discretion by admitting the
results of the polygraph examination. We review the trial court’s ruling on the
admission or exclusion of evidence for an abuse of discretion. Roche v. State,
690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied. We reverse only where the
decision is clearly against the logic and effect of the facts and circumstances.
Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied. Even if the trial
court’s decision was an abuse of discretion, we will not reverse if the admission
constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind. Ct. App.
1999), reh’g denied, trans. denied.
[28] In ruling on admissibility following the denial of a motion to suppress, the trial
court considers the foundational evidence presented at trial. Carpenter v. State,
18 N.E.3d 998, 1001 (Ind. 2014). If the foundational evidence at trial is not the
same as that presented at the suppression hearing, the trial court must make its
decision based upon trial evidence and may consider hearing evidence only if it
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 14 of 31 does not conflict with trial evidence. Guilmette v. State, 14 N.E.3d 38, 40 n.1
(Ind. 2014). It also considers the evidence from the suppression hearing that is
favorable to the defendant only to the extent it is uncontradicted at trial.
Carpenter, 18 N.E.3d at 1001.
[29] Before addressing his arguments, we note that, in Owens v. State, the court held
that as a general rule the results of a polygraph examination are not competent
evidence and are inadmissible at trial, but that where a7ll the parties by
stipulation have waived any objection, the court may allow the results to be
admitted. 176 Ind. App. 1, 3, 373 N.E.2d 913, 914-915 (1978). The court also
noted: “The defendant’s counsel would be required to sign the stipulation only
when a defendant’s 6th amendment right to counsel has already attached and
where the defendant has not waived such right to counsel.” Id. at 3 n.2, 373
N.E.2d at 915 n.2. We held that the prerequisites for the use of polygraph test
results set forth in State of Arizona v. Valdez, 91 Ariz. 274, 371 P.2d 894 (Ariz.
1992) largely reflected the law in Indiana and adopted them in their entirety.
Id. at 4, 373 N.E.2d at 915. The Indiana Supreme Court approved of these
prerequisites. See Davidson v. State, 558 N.E.2d 1077, 1085 (Ind. 1990)
(observing that the Court in Pavone v. State, 273 Ind. 162, 402 N.E.2d 976
(1980), approved the prerequisites outlined in Owens).
[30] Conley contends that the trial court abused its discretion based upon: (A)
Defendant’s Exhibit A and the idea that each party’s signature was not on the
Stipulation prior to the administration of the polygraph examination; (B) the
Stipulation is unenforceable because it was not a valid contract; and (C) the
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 15 of 31 Stipulation was unenforceable because Conley did not waive his right to
counsel.
A. Timing of Signatures on Stipulation and Defendant’s Exhibit A
[31] Conley argues that the Stipulation does not conform to well-established
prerequisites, specifically that Defendant’s Exhibit A was signed by a judge on
November 9, 2011, that the Stipulation was filed on November 9, 2011, but that
he did not sign the waiver and Stipulation until November 10, 2011. He asserts
that “[t]he above timeline proves that the well-established prerequisite that each
party’s signature shall be on the stipulation prior to the administration of the
exam was not satisfied when the ‘Stipulation as to the Admissibility of
Polygraph Examination Result’ was pre-signed by a judge and filed with the
Court on November 9, 2011.” Appellant’s Brief at 12.
[32] As mentioned, the court did not admit Defendant’s Exhibit A and Conley does
not challenge this decision. Nonetheless, to the extent Gross testified to the
contents of Defendant’s Exhibit A and it is included in the record, we note that
Conley’s counsel conceded that the order was vacated. We cannot say that
Conley has developed a cogent argument regarding the impact of Defendant’s
Exhibit A and cannot say that the trial court abused its discretion on this basis.
B. Contract
[33] Conley asserts that the Stipulation was unenforceable because prior to signing
it, he demonstrated that he did not understand it, stated that he did not believe
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 16 of 31 the results would be admissible, was not fully informed, lacked the
sophistication to evaluate the Stipulation, and that there was no mutual assent.
[34] Such stipulations generally are contracts between the State and the defendant.
See Willey v. State, 712 N.E.2d 434, 440 (Ind. 1999). Contract law principles
therefore control their use and interpretation, including the well-settled doctrine
that an ambiguity is to be construed against the party who prepared the
contract. Id. “In order for this evidence to be admissible, it must be agreed to
in unambiguous terms and the stipulation agreement, like any other contract,
must not be the product of misrepresentation or mistake of fact.” Id. at 441.
[35] Conley does not argue that the Stipulation was ambiguous or develop an
argument with respect to his level of sophistication. The record reveals that
Gross read the Stipulation to Conley, and Conley took a break for about five
minutes to think about it, and came back in and agreed with it. Gross testified
that Conley agreed with everything in the waiver of rights form, said that he
understood, and then signed the form. Further, Gross testified that Conley
appeared to understand his rights and the Stipulation, and that he did not
appear to be under the influence of any drugs or narcotics and was cooperative.
Conley testified that he could read and that he graduated from high school. At
trial, the following exchange occurred during his cross-examination:
Q. What do you think that last part means? That you have discussed that polygraph examination results are not allowed to be admitted under current Court rules and that Leo Conley hereby knowingly or voluntarily and expressly waives his right to
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 17 of 31 have such evidence excluded. What do you think that means? That’s pretty clear.
A. Yeah.
Transcript I at 388. We cannot say that the trial court abused its discretion on
this basis.
C. Right to Counsel
[36] Conley argues that his right to counsel under the Sixth Amendment attached at
the moment immediately before he was asked to sign the Stipulation because
the request constituted the initiation of a critical stage in his confrontation with
law enforcement. His statement that he had not hired an attorney “yet,”
indicated his intention not to waive his right to counsel. Appellant’s Brief at 14.
[37] The State’s position is that the Sixth Amendment right to counsel does not
attach until the initiation of criminal proceedings through the filing of charges
or the arraignment.
[38] The parties discuss Kochersperger v. State, 725 N.E.2d 918 (Ind. Ct. App. 2000),
and Caraway v. State, 891 N.E.2d 122 (Ind. Ct. App. 2008), reh’g denied. In
Kochersperger, a detective reviewed with Michael Lee Kochersperger an advice
of rights form containing Miranda warnings, and including an advisement of his
right to counsel. 725 N.E.2d at 921. Kochersperger read and signed the form.
Id. The meeting culminated in Kochersperger signing an agreement with the
prosecutor to undergo a polygraph examination and stipulating that the results
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 18 of 31 would be admissible at any trial. Id. On appeal, the court addressed
Kochersperger’s argument that his Sixth Amendment right to counsel was
violated because he was not represented at the time the examination was
administered and the interrogation was conducted. Id. at 922.
[39] The court addressed Kochersperger’s argument that his stipulation was not
signed by defense counsel because he had no representation at the time. The
court held that he was fully advised of his right to counsel prior to executing the
stipulation and waived such right by signing the advice of rights form. Id. at
922-923.
[40] With respect to Kochersperger’s argument that his right to counsel under the
Sixth Amendment was violated when the polygraph examination and post-
testing interrogation were conducted without the presence of defense counsel,
this court observed that the Sixth Amendment “provides that an accused has a
right to counsel ‘at any stage of the prosecution, formal or informal, in court or
out, where counsel’s absence might derogate from the accused’s right to a fair
trial.’” Id. (quoting Jones v. State, 655 N.E.2d 49, 54 (Ind. 1995) (quoting United
States v. Wade, 388 U.S. 218, 226, 87 S. Ct. 1926, 1932 (1967)), reh’g denied).
“Such a stage is considered a ‘critical stage,’ that is, any stage in a criminal
proceeding where incrimination may occur or where the opportunity for
effective defense must be seized or be foregone.” Id. (quoting Greenlee v. State,
477 N.E.2d 917, 920 (Ind. Ct. App. 1985)). The court observed that the
defendant had not been arrested, arraigned, or indicted at the time he signed the
agreement and stipulation, nor had he been so at the time the polygraph
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 19 of 31 examination and post-testing interrogation were conducted. Id. at 924. The
court held that, “[a]s such, the examination and interrogation did not constitute
critical stages of a criminal proceeding because criminal proceedings had not
yet commenced; likewise, [the defendant’s] right to counsel had not yet
attached.” Id. The court concluded that the defendant was not deprived of his
Sixth Amendment right to counsel, and the trial court did not err when it
denied his motion to suppress on such grounds. Id. See also Weaver v. State, 583
N.E.2d 136, 139 (Ind. 1991) (“The sixth amendment right to counsel attaches
‘at or after the initiation of adversary judicial criminal proceedings.’” (quoting
McNeil v. Wisconsin, 501 U.S. 171, 111 S. Ct. 2204, 2207 (1991) (quoting United
States v. Gouveia, 467 U.S. 180, 188, 104 S. Ct. 2292, 2297 (1984)))); Dullen v.
State, 721 N.E.2d 241, 242 (Ind. 1999) (“It is well settled that the Sixth
Amendment right to counsel attaches only at or after the time that adversary
judicial proceedings have been initiated against the defendant. Once charges
are filed against a defendant, the Sixth Amendment guarantee of assistance of
counsel applies to ‘critical’ stages of the proceedings.”) (citation omitted), cert.
denied, 531 U.S. 847, 121 S. Ct. 118 (2000), reh’g denied.
[41] In Caraway, a detective read a stipulation agreement to Thomas Caraway
regarding the admission of the results of a polygraph examination which did
not include a Miranda warning or notice of the defendant’s right to counsel.
891 N.E.2d at 124. Approximately twenty days later, the detective observed an
officer read to Caraway his Miranda warnings from a form which included a
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 20 of 31 notice of the right to seek the assistance of counsel. Id. Caraway signed the
form, and the officer administered the polygraph. Id.
[42] Upon interlocutory appeal following the denial of Caraway’s motion to
suppress evidence, a panel of this court disagreed with the result reached in
Kochersperger that the right to counsel cannot attach earlier than at the initiation
of criminal proceedings. Id. at 126. The court held that it is “central to that
principle that in addition to counsel’s presence at trial, the accused is
guaranteed that he need not stand alone against the State at any stage of the
prosecution, formal or informal, in court or out, where counsel’s absence might
derogate from the accused’s right to a fair trial.” Id. The court also observed
that Article 1, Section 13 of the Indiana Constitution guarantees the right to
counsel at any critical stage of the prosecution where counsel’s absence might
derogate from the accused’s right to a fair trial, and that the rights afforded
under Section 13 attach prior to the filing of formal charges. Id. at 126-127.
The court observed that the stipulation agreement did not include Miranda
warnings or any notice of right to counsel, and concluded that the absence of
notice of Caraway’s right to an attorney derogated his right to a fair trial, and
that Caraway could not have waived the right because he was never informed
of it prior to stipulating to the admission of the results of the polygraph
examination. Id. at 127.
[43] Assuming that Caraway is the proper analysis, we find that case distinguishable.
Gross, the polygraph examiner employed by the Indiana State Police, testified
that he met Conley on November 10, 2011, when Conley arrived at the state
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 21 of 31 police post to take a polygraph, and that he read to Conley the Stipulation and
the waiver of rights form prior to administering the polygraph. The waiver of
rights form informed Conley of his right to speak to a lawyer and to have a
lawyer appointed. Conley admits that he signed the waiver and Stipulation on
November 10, 2011. Gross testified that Conley appeared to understand the
rights that he went over him with as well as the Stipulation. During cross-
examination, Conley’s counsel asked Gross: “And if he hadn’t . . . if he came
into see you that day and said I don’t stipulate then you would have said that’s
the end of the test, you wouldn’t . . . you wouldn’t have gone on with the test,
isn’t that true?” Transcript I at 324-325. Gross answered: “True.” Id. at 325.
Under these circumstances, we cannot say that the trial court abused its
discretion in admitting the evidence regarding the polygraph examination. See
State v. Wroe, 16 N.E.3d 462, 467-468 (Ind. Ct. App. 2014) (observing the
different conclusions in Kochersperger and Caraway, stating that “[w]ithout
expressing opinion on the results reached by these two panels, we note that the
instant case is distinguishable from both,” and holding that the stipulation was
not invalid even if a right to counsel attached before the defendant signed the
stipulation and/or before he underwent the polygraph examination because the
defendant knowingly and voluntarily waived that right), trans. denied.
II.
[44] The next issue is whether the court erred by denying Conley’s motion for a
mistrial. In reviewing a claim of prosecutorial misconduct, we determine: (1)
whether the prosecutor engaged in misconduct, and if so, (2) whether that
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 22 of 31 misconduct, under all of the circumstances, placed the defendant in a position
of grave peril to which he or she should not have been subjected. Coleman v.
State, 750 N.E.2d 370, 374 (Ind. 2001). The “gravity of peril” is measured by
the “probable persuasive effect of the misconduct on the jury’s decision, not on
the degree of impropriety of the conduct.” Id. A trial court is in the best
position to evaluate whether a mistrial is warranted because it can assess first-
hand all relevant facts and circumstances and their impact on the jury. Ramirez
v. State, 7 N.E.3d 933, 935 (Ind. 2014) (citing Kelley v. State, 555 N.E.2d 140,
141 (Ind. 1990)). We therefore review denial of a motion for mistrial only for
an abuse of discretion. Id. (citing Gregory v. State, 540 N.E.2d 585, 589 (Ind.
1989)). A mistrial is “an extreme remedy granted only when no other method
can rectify the situation.” Overstreet v. State, 783 N.E.2d 1140, 1155 (Ind. 2003),
cert. denied, 540 U.S. 1150, 124 S. Ct. 1145 (2004).
[45] Conley argues that the prosecutor improperly commented on his right to
remain silent and “attempt[ed] to forecast testimony that Conley would give,
thereby imposing an expectation on the jury that he must testify in order to
mount his defense.” Appellant’s Brief at 17. He points to the following portion
of the prosecutor’s opening statement:
What will you hear from the defense? Well they’re going to jump up and down and say [N.P.] denied . . . she denied that Leo Conley molested her on several times before she finally said it. They’re going to say [N.P.] likes to lie and make up stories. They’re going to say [N.P.’s mother is] a bad mom. They’re going to say polygraph exams are unreliable even though the defendant wanted to take it. They’re going to say cops drug their
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 23 of 31 feet investigating these claims. They’re going to say [A.D.] made up a story to protect her cousin. They understand this case is several years old and the allegations happened many years ago [;] these girls were a lot younger than they are now. They will nit- pick these inconsistencies.
Transcript I at 101-102.7
[46] Conley also challenges the prosecutor’s following comment during opening
statement:
One of the girls will undergo a rigorous cross examination about why she denied being molested on at least three occasions before she finally admitted that she wasn’t telling the truth. The other girl that did not live with Mr. Conley said from the beginning Mr. Conley molested her. The defense will not be able to explain why she (inaudible) make this up. The evidence will show neither girl had anything to gain from this disclosure.
Id. at 98-99. Conley argues that the prosecutor improperly shifted the burden of
proof by this statement and that when coupled with the earlier statement, the
result was prejudice. The State argues that the prosecutor did not commit
misconduct and that the admonishment effectively cured any impact the
opening statement may have improperly had upon the jurors.
7 While the paper version of Transcript I does not include page 101, the digital version of Transcript I includes page 101.
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 24 of 31 [47] After the trial court denied Conley’s motion for mistrial, the court admonished
the jury as follows:
Opening statements are not evidence and should be considered only as a preview of what the attorney’s [sic] expect the evidence will be. Under the law of this State a person charged with a crime is presumed to be innocent[.] [T]o overcome the presumption of innocence the State must prove the defendant guilty of each essential element of the crime charged beyond a reasonable doubt. The defendant is not required to present any evidence to prove his innocence or to prove or explain anything. You should attempt to fit the evidence to the presumption that the defendant is innocent . . . .
Supplement to Transcript I at 3.
[48] Based upon the record and in light of the trial court’s admonishment and jury
instructions, we conclude that Conley has not proven prosecutorial misconduct
warranting a mistrial. We cannot say that the trial court abused its discretion in
denying his motion for a mistrial.
III.
[49] The next issue is whether the evidence is sufficient to sustain Conley’s
convictions for Counts I to XV, which constitute the charges of child molesting
as class A felonies related to A.D. When reviewing claims of insufficiency of
the evidence, we do not reweigh the evidence or judge the credibility of
witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather,
we look to the evidence and the reasonable inferences therefrom that support
the verdict. Id. We will affirm the conviction if there exists evidence of Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 25 of 31 probative value from which a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. Id.
[50] Conley argues that: (A) there was insufficient evidence that his finger
penetrated A.D.’s sex organ to support Counts VI to XV; and (B) A.D.’s
testimony was that he abused her on no more than three separate occasions and
that there is insufficient evidence that fifteen separate charged acts occurred.
A. Penetration
[51] Conley points to A.D.’s testimony and posits that there was insufficient
evidence that his finger penetrated her vagina or sex organ. The offense of child
molesting as a class A felony as charged in Counts VI to XV is governed by Ind.
Code § 35-42-4-3(a), which at the time of the offenses provided:
A person who, with a child under fourteen (14) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits child molesting, a Class B felony. However, the offense is a Class A felony if . . . (1) it is committed by a person at least twenty-one (21) years of age . . . .
(Subsequently amended by Pub. L. No. 158-2013, § 439 (eff. July 1, 2014); Pub.
L. No. 247-2013, § 6 (eff. July 1, 2014); Pub. L. No. 168-2014, § 68 (eff. July 1,
2014); Pub. L. No. 187-2015, § 48 (eff. July 1, 2015)). Ind. Code § 35-41-1-9
defined “[d]eviate sexual conduct” as “an act involving: (1) a sex organ of one
person and the mouth or anus of another person; or (2) the penetration of the
sex organ or anus of a person by an object.” (Subsequently repealed by Pub. L.
No. 114-2012, §§ 87-102 (eff. July 1, 2012)).
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 26 of 31 [52] Proof of even the slightest penetration is sufficient to sustain convictions for
child molesting. Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996), aff’d in
relevant part on reh’g. There is no requirement that the vagina be penetrated,
only that the female sex organ, including the external genitalia, be penetrated.
Smith v. State, 779 N.E.2d 111, 115 (Ind. Ct. App. 2002), trans. denied. The
definition of the term “object” for the purposes of deviate sexual conduct
includes a finger. D’Paffo v. State, 778 N.E.2d 798, 802 (Ind. 2002). Whether
penetration occurred is a question of fact to be determined by the jury.
Borkholder v. State, 544 N.E.2d 571, 577 (Ind. Ct. App. 1989).
[53] In Scott v. State, the court examined the meaning of “sex organ.” 771 N.E.2d
718, 724-725 (Ind. Ct. App. 2002), disapproved of on other grounds by Louallen v.
State, 778 N.E.2d 794 (Ind. 2002). The court noted that the female external
genitalia is defined as “the vulva in the female.” Id. at 724 (quoting STEDMAN’S
MEDICAL DICTIONARY at 641 (25th ed. 1990)). The vulva is defined as “[t]he
external genital organs of the female, including the labia majora, labia minora,
clitoris, and vestibule of the vagina.” THE AMERICAN HERITAGE DICTIONARY
OF THE ENGLISH LANGUAGE 1931 (4th ed. 2006). Labial is defined as “[o]f or
relating to the lips or labia.” Id. at 977. Labia majora are defined as “[t]he two
outer rounded folds of adipose tissue that lie on either side of the vaginal
opening and form the external lateral boundaries of the vulva.” Id. Labia
minora are defined as “[t]he two thin inner folds of skin within the vestibule of
the vagina enclosed within the cleft of the labia majora.” Id.
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 27 of 31 [54] While A.D. testified that Conley did not put his fingers inside her vagina, she
also testified that it was possible to rub on the inside of the lips but not be on the
inside of the vagina, and that being inside the vagina according to her definition
was “actually penetrating into . . . the canal . . . [w]here the penis would go if
you were having sex.” Transcript I at 288. Moreover, she testified that Conley
was inside her vaginal lips and that Conley “did stick his finger between” her
vaginal lips. Id. at 296. She also testified that Conley fingered her which she
defined in part as “rubbing on the clit.” Id. at 260.
[55] Based upon the record, we conclude that the State presented evidence of a
probative nature from which a reasonable trier of fact could have found that
Conley penetrated A.D.’s sex organ with his finger and was guilty of child
molesting as a class A felony. See Morales v. State, 19 N.E.3d 292, 297-298 (Ind.
Ct. App. 2014) (rejecting the defendant’s argument that penetration of the
female external genitalia does not constitute penetration of the female sex
organ), trans. denied; Short v. State, 564 N.E.2d 553, 559 (Ind. Ct. App. 1991)
(observing that “[t]o sustain convictions for child molesting and incest, proof of
the slightest penetration is sufficient,” that the “statute defining sexual
intercourse does not require that the vagina be penetrated, only that the female
sex organ be penetrated,” and holding that the evidence that the defendant
penetrated the victim’s external genitalia was sufficient to support his unlawful
sexual intercourse convictions even though the evidence failed to indicate that
the victim’s vagina was penetrated).
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 28 of 31 B. Fifteen Counts
[56] Conley argues that A.D.’s testimony was that he abused her on no more than
three separate occasions. The State argues that it sufficiently proved that the
number of molestations that occurred equaled or exceeded fifteen.
[57] It is well settled that time is not of the essence in the crime of child molesting.
Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992), reh’g denied. This is so
because “it is difficult for children to remember specific dates, particularly when
the incident is not immediately reported as is often the situation in child
molesting cases.” Id. The Indiana Supreme Court recognizes that a child may
be victimized by “an abuser residing with the child . . . [who] perpetuate[s] the
abuse so frequently . . . that the young child loses any frame of reference in
which to compartmentalize the abuse into distinct and separate transactions”
and therefore can only give “generic evidence” of a defendant’s conduct. Baker
v. State, 948 N.E.2d 1169, 1174 (Ind. 2011) (quoting R.L.G. v. State, 712 So.2d
348, 356 (Ala. Crim. App. 1997)), reh’g denied. The victim’s “generic
testimony” may describe a pattern of abuse (“every time mama went to the
store”) rather than specific incidents (“after the July 4th parade”). 8 Id.
8 The Court in Baker held that, if the State decides not to designate a specific act or acts on which it relies to prove a particular charge, then “the jurors should be instructed that in order to convict the defendant they must either unanimously agree that the defendant committed the same act or acts or that the defendant committed all of the acts described by the victim and included within the time period charged.” Baker, 948 N.E.2d at 1177. Conley does not raise any argument regarding the jury instructions.
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 29 of 31 [58] A.D. testified that Conley molested her and that he “would stick his penis in
[her] butt.” Transcript I at 247. She testified that Conley placed lotion on his
penis and placed it into her anus on multiple occasions. When asked how
many times Conley put his penis in her anus, A.D. answered: “Twenty or
fifteen times, I’m not really sure on the amount.” Id. at 250. This evidence
supports Conley’s convictions under Counts I to III which alleged that he
committed child molesting as class A felonies and that he “placed his penis
and/or a sexual aid resembling a penis, also known as a dildo, into the anus of
A.D.” Appellant’s Appendix at 15-17. A.D. testified that Conley performed
oral sex on her. This testimony supports Count IV in which the State alleged
that Conley “placed his mouth on the vagina of A.D.” Id. at 18. A.D. testified
that one time when she was exiting the bathroom and Conley and N.P. were on
the bed, Conley told A.D. to come over and suck his penis, and A.D. did so.
This evidence supports Count V in which the State alleged that Conley “placed
his penis in the mouth of A.D.” Id. at 19. Lastly, A.D. testified that Conley
touched her “vagina” with his fingers at least ten times. Transcript I at 248.
This evidence supports Counts VI to XV. A.D. was seven years old “when all
this stuff” with Conley started happening and it continued until she was
fourteen years old. Id. at 260. Based upon the record, we conclude that the
State presented evidence of a probative nature from which a reasonable jury
could have found beyond a reasonable doubt that Conley committed fifteen
counts of child molesting against A.D.
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 30 of 31 Conclusion
[59] For the foregoing reasons, we affirm Conley’s convictions.
[60] Affirmed.
Crone, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 31A01-1404-CR-157 | December 4, 2015 Page 31 of 31