Mark D. Speer v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 24, 2017
• Docket: 79A02-1606-CR-1342
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 24 2017, 9:23 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bruce W. Graham Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana

Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Mark D. Speer, April 24, 2017 Appellant-Defendant, Court of Appeals Case No. 79A02-1606-CR-1342 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Steven P. Meyer, Appellee-Plaintiff Judge Trial Court Cause No. 79D02-1410-FA-15

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CR-1342 | April 24, 2017 Page 1 of 10 [1] Following a jury trial, Mark D. Speer was convicted of attempted child

molesting as a Class A felony and child molesting as a Class C felony. Speer

was sentenced to an aggregate term of forty-two years imprisonment. Speer

presents two issues for our review:

1. Is the charging information alleging attempted child molesting legally insufficient?

2. Is the evidence sufficient to sustain his conviction for attempted child molesting?

[2] We affirm.

Facts & Procedural History

[3] On July 29, 2014, authorities obtained a warrant to search a residence in

Lafayette, Indiana. At the time the warrant was served, Speer and his

girlfriend, Rebecca Kaster, lived at that residence. During the search an officer

obtained Speer’s cell phone, which was then given to the Indiana State Police

where another officer extracted data from the phone. Among the data were six

videos that had been recorded on September 13, 2013.

[4] The first video was recorded in Speer’s living room and shows a naked three-

year-old girl eating an ice cream bar. Speer is heard saying: “Oh, she’s

beautiful”; “Look at that pretty little butt”; and “Oh my God, I’ve already got

her naked.” State’s Exhibit 26, VIDEO0041:20-30. At points in the first video,

the camera focuses on the girl’s vagina and buttocks. In the third video, which

was recorded in an upstairs bedroom, Speer is heard telling the naked girl that Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CR-1342 | April 24, 2017 Page 2 of 10 she is pretty before he places a blindfold over the girl’s face. The girl

immediately protests and tells Speer to take it off, which he does. In the fourth

video, Speer’s phone is propped up and the camera is focused on the girl, who

is naked and playing a guitar. Speer asks the girl if she wants to play the guitar

upside down and he then grabs her around the waist and turns her upside down

such that his face is near her vagina. Despite the girl’s protests, Speer keeps

turning her upside down as he did in the first instance until she screams to be

put down.

[5] Finally, in the sixth video, the girl remains naked and is jumping up and down

on the bed in Speer’s bedroom. Speer lays his phone down such that the girl is

still within view of the camera. He then leans over the child while she is laying

on her back on the bed completely naked. In a seemingly playful manner,

Speer covers the girl’s face with a pillow. Speer then leans over the exposed

lower half of the girl’s body, but a pillow blocks Speer’s face from the camera.

Seconds later, the girl’s muffled screams telling Speer to stop can be heard.

Speer does not move his head or say anything for approximately six seconds.

As Speer lifts his head, a sucking sound can be heard. The child again tells

Speer to get off of her belly and he responds, saying “that isn’t your belly.”1

1 While the words are not completely clear from the audio, we find this to be a substantively accurate transcription of what Speer said. The State, during its opening statement, told the jury that Speer said, “That isn’t your belly!” Transcript Vol. 1 at 13. In closing, the State argued that he said, “That’s not your belly!” Transcript Vol. 2 at 143. Speer did not object to either characterization at trial, and he quotes the first of these in his brief.

Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CR-1342 | April 24, 2017 Page 3 of 10 State’s Exhibit 26, VIDEO0046:45. He then asks her if it “tickle[d]” and acts

surprised when she says it did not. Id. at VIDEO0046:59-1.01.

[6] It took weeks for the police to determine the identity of the girl in the video.

Eventually, Kaster, who initially denied that she knew the girl’s identity, told

the police that the girl was a co-worker’s daughter that she had babysat at

Speer’s home on September 13, the day the videos were created. Kaster

explained that she left the girl in Speer’s care for approximately twenty-five

minutes while she took a second child down to a creek.

[7] On October 29, 2014, the State charged Speer with Count I, attempted child

molesting as a Class A felony, Count II, child molesting as a Class C felony,

and Count III, criminal confinement as a Class C felony. An initial hearing

was held shortly after the charges were filed and an omnibus date for late

August 2014 was assigned. The initial jury trial was scheduled for late October

2015, but was continued on at least two occasions. A two-day jury trial

commenced on April 26, 2016, at the conclusion of which the jury found Speer

guilty as charged. The trial court held a sentencing hearing on May 17, 2016, at

which the court sentenced Speer to forty-two years on Count I and a concurrent

term of seven years on Count II. The trial court determined that Count III

merged with Count I, and thus did not enter judgment thereon. Speer now

appeals. Additional facts will be provided as necessary.

Discussion & Decision

1. Charging Information

Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CR-1342 | April 24, 2017 Page 4 of 10 [8] Speer argues that the charging information alleging attempted child molesting is

defective because it fails to allege the statutory enhancement raising the offense

to a Class A felony. Specifically, Speer argues that the State failed to allege an

essential element of the elevated offense, i.e., that he attempted to engage in

deviate sexual conduct.

[9] The charging information for Count I, attempted child molesting as a Class A

felony, provides in pertinent part as follows:

On or about September 13, 2013, in Tippecanoe County, State of Indiana, Mark D. Speer, did knowingly or intentionally attempt to commit the crime of Child Molesting, by engaging in conduct which constituted a substantial step towards the commission of said offense, to wit: on September 13, 2013, Mark D. Speer and/or [child] removed the clothing being worn by [child]; Speer positioned [child]’s body in such a way that her exposed genitals and anus were near his face; Speer appears to hold [child] down on a bed while his head appears to be over the lower half of [child]’s body; with Mark D. Speer, a person at least twenty-one (21) years of age, to wit: forty-three (43) years of age; and with [child], a child under fourteen (14) years of age, to wit: three (3) years of age.

All of which is contrary to the statute in such cases made and provided, to wit: Indiana Code 35-42-4-3(a)(1) [2014] and 35-41- 5-1, and against the peace and dignity of the State of Indiana.

Appellant’s Appendix Vol. II at 18.

[10] An information “shall be a plain, concise, and definite written statement of the

essential facts constituting the offense charged.” Ind. Code § 35-34-1-2(d). The

Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CR-1342 | April 24, 2017 Page 5 of 10 purpose of a charging information is “‘to provide a defendant with notice of the

crime of which he is charged so that he is able to prepare a defense.’” Gilliland

v. State, 979 N.E.2d 1049, 1060 (Ind. Ct. App. 2012) (quoting State v. Laker,

939 N.E.2d 1111, 1113 (Ind. Ct. App. 2010), trans. denied). The State is not

required to include detailed factual allegations; rather, a charging information

satisfies due process if the information “enables an accused, the court, and the

jury to determine the crime for which conviction is sought.” Id. at 1061

(quoting Dickenson v. State, 835 N.E.2d 542, 550 (Ind. Ct. App. 2005)).

[11] Because Speer did not file a motion to dismiss the charging information on

sufficiency grounds,2 the State argues that Speer has waived his claim. See

Wilhoite v. State, 7 N.E.3d 350, 352 (Ind. Ct. App. 2014). To avoid waiver,

Speer argues that the charging information was so lacking that it constitutes

fundamental error. Fundamental error is error so prejudicial to the rights of a

defendant that a fair trial is rendered impossible. Thomas v. State, 61 N.E.3d

1198, 1201 (Ind. Ct. App. 2016), trans. denied. To be considered fundamental

error, an error must “constitute a blatant violation of basic principles, the harm,

or potential for harm is substantial, and the resulting error must deny the

defendant fundamental due process.” Spears v. State, 811 N.E.2d 485, 488 (Ind.

Ct. App. 2004).

2 Over eighteen months elapsed between the filing of the charging information and the start of his jury trial.

Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CR-1342 | April 24, 2017 Page 6 of 10 [12] Here, the State included some detailed factual allegations that it would seek to

prove to the trier of fact as being the substantial step toward commission of the

crime. In doing so, the State provided Speer with sufficient information to

apprise him of the charge he would have to defend. Additionally, the State

cited to the specific statutory provision that defined of Class A felony child

molesting.

[13] Even assuming that the charging information was erroneous, any claim of error

does not rise to the level of fundamental error. Speer cannot establish that a fair

trial was impossible based on the alleged defective information. In addition to

providing the jury with a verbatim account of the charging information for

attempted child molesting, the court also gave Final Instruction 2.01, which

defined the crime of attempted child molesting as a Class A felony, including

the requirement that the defendant “knowingly performed sexual intercourse or

deviate sexual conduct.” Appellant’s Appendix Vol. II at 105. Another final

instruction given to the jury defined the term deviate sexual conduct as used in

Final Instruction 2.01. The jury was well aware of the crime for which the

conviction was sought.

[14] Further, Speer makes no claim that he was misled by the charging information.

He also makes no claim that his defense at trial was prejudiced by the charging

information’s alleged deficiency. In fact, Speer provided a vigorous defense to

the charge at trial. Speer has not established fundamental error.

Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CR-1342 | April 24, 2017 Page 7 of 10 [15] Speer’s claim that there was a material variance between the charging

information and the proof at trial likewise fails. This claim requires either a

showing that the defendant was misled and prejudiced thereby or that there is a

risk of future double jeopardy problems. See Daniels v. State, 957 N.E.2d 1025,

1030 (Ind. Ct. App. 2011). Speer has made no argument about being misled in

his defense or future double jeopardy issues.

Sufficiency

[16] Speer argues that the evidence is insufficient to support his conviction for

attempted child molesting as a Class A felony.3 Specifically, he contends that

the jury was asked to engage in pure speculation in determining whether he

took a substantial step toward engaging in deviate sexual conduct.

[17] In reviewing a challenge to the sufficiency of the evidence, we neither reweigh

the evidence nor judge the credibility of witnesses. Atteberry v. State, 911 N.E.2d

601, 609 (Ind. Ct. App. 2009). Instead, we consider only the evidence

supporting the conviction and the reasonable inferences flowing therefrom. Id.

If there is substantial evidence of probative value from which a reasonable trier

of fact could have drawn the conclusion that the defendant was guilty of the

crime charged beyond a reasonable doubt, the judgment will not be disturbed.

Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008). It is not

necessary that the evidence overcome every reasonable hypothesis of

3 Speer does not challenge his conviction for child molesting as a Class C felony.

Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CR-1342 | April 24, 2017 Page 8 of 10 innocence; rather, the evidence is sufficient if an inference may reasonably be

drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144, 147

(Ind. 2007). To sustain Speer’s conviction for attempted child molesting as a

Class A felony, the State was required to prove, in part, that Speer knowingly or

intentionally took a substantial step toward engaging in deviate sexual conduct

with the child. I.C. § 35-42-4-3(a)(1) (2014) (child molesting);4 Ind. Code § 35-

41-5-1 (attempt). Deviate sexual conduct is an act involving “a sex organ of

one (1) 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.” 5 Ind. Code § 35-31.5-2-94

(2014).

[18] Here, the conduct at issue is depicted in the sixth video that was extracted from

Speer’s phone. In that video Speer is recording the naked three-year-old girl

jumping around on a bed. After the girl falls to the bed and is lying exposed in

a horizontal position behind a pillow, Speer covers her face with another pillow

and then leans over the lower-half of the girl’s body, his face obscured by a

pillow. Speer’s head does not move for approximately six seconds, all the while

muffled screams from the girl for Speer to stop can be heard. As Speer stands

upright, a sucking sound can be heard. The girl again tells Speer to get off of

4 Child molesting is now a Level 1 felony if committed by a person at least 21 years old against a child less than 14 years old and the act is “sexual intercourse or other sexual conduct.” I.C. § 35-42-4-3(a). 5 Speer committed his crimes in September 2013—before the repeal of the deviate sexual conduct definition and replacement with the term “other sexual conduct.” “Other sexual conduct” has an identical definition as deviate sexual conduct previously had. See Ind. Code § 35-31.5-2-221.5.

Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CR-1342 | April 24, 2017 Page 9 of 10 her belly and he responds, saying “that isn’t your belly.” State’s Exhibit 26,

VIDEO0046:45. He then asks the girl if it “tickle[d]” and acts surprised when

she says it did not. Id. at VIDEO0046:59-1.01. In addition to this video, the

State presented five other videos made during the same timeframe that were

extracted from Speer’s phone. In the videos Speer recorded the naked girl,

focusing particularly on her buttocks and vaginal areas. Speer is heard making

crude comments and expressing excitement over the girl in her state of undress.

[19] The State presented sufficient evidence from which the jury could have

concluded that Speer knowingly took a substantial step toward engaging in

deviate sexual conduct with the naked three-year-old child. Speer’s conviction

for attempted child molesting as a Class A felony is affirmed.

[20] Judgment affirmed.

Riley, J. and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CR-1342 | April 24, 2017 Page 10 of 10