MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 20 2017, 8:53 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffrey D. McClarnon Curtis T. Hill, Jr. Greenfield, Indiana Attorney General of Indiana
Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert Francisco Celio, July 20, 2017 Appellant-Defendant, Court of Appeals Case No. 30A05-1609-CR-2124 v. Appeal from the Hancock Circuit Court State of Indiana, The Honorable Richard D. Culver, Appellee-Plaintiff Judge Trial Court Cause No. 30C01-1510-FA-1513
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 30A05-1609-CR-2124 | July 20, 2017 Page 1 of 6 [1] Robert Celio appeals following his convictions for Class A felony child
molesting, Class A felony criminal deviate conduct, Class B felony incest, Class
C felony child molesting, and Class C felony intimidation. On appeal, Celio
argues that the trial court abused its discretion in excluding evidence pursuant
to Ind. Evidence Rule 412, commonly referred to as the Rape Shield Rule.
[2] We affirm.
Facts & Procedural History
[3] Celio met his biological daughter, L.D., in 2006, when L.D. was approximately
six years old. After Celio’s paternity was established through genetic testing,
Celio rekindled his relationship with L.D.’s biological mother and moved in
with the family. Shortly thereafter, Celio began to sexually abuse L.D. These
incidents involved Celio penetrating L.D.’s vagina with his finger and his penis
and penetrating her anus with his penis. On one occasion, Celio choked L.D.
and beat her with a belt before vaginally and anally penetrating her. On
another occasion, Celio held a knife to L.D.’s throat. On yet another occasion,
Celio held a gun to L.D.’s head after the assault and threatened to hurt her and
her mother if she told anyone what he had done. L.D. did not tell anyone
about the abuse because she was afraid.
[4] Eventually, Celio’s and L.D.’s biological mother’s parental rights to L.D. were
terminated for reasons unrelated to the sexual abuse. L.D. was adopted in
2012, and nearly two years later, L.D. finally disclosed the abuse to her
adoptive parents. L.D.’s adoptive parents contacted the Department of Child
Court of Appeals of Indiana | Memorandum Decision 30A05-1609-CR-2124 | July 20, 2017 Page 2 of 6 Services and an investigation ensued, as a result of which Celio was charged
with the offenses set forth above. A two-day jury trial commenced on July 12,
2016, at the conclusion of which Celio was found guilty as charged. On August
18, 2016, the trial court sentenced Celio to an aggregate term of fifty years in
the Department of Correction. Celio now appeals.
Discussion & Decision
[5] Celio argues that the trial court abused its discretion in excluding evidence that
L.D. had been molested by other individuals.1 Trial courts are afforded wide
discretion in ruling on the admissibility of evidence, and our review of such
decisions is limited to determining whether the court abused that discretion.
Beasley v. State, 46 N.E.3d 1232, 1235 (Ind. 2016). An abuse of discretion
occurs when the trial court’s decision is clearly against the logic and effect of
the facts and circumstances and the error affects a party’s substantial rights. Id.
In considering whether a trial court has abused its discretion in the admission or
exclusion of evidence, we do not reweigh the evidence. Id. We consider only
the evidence favorable to the ruling and any unrefuted evidence favorable to the
defendant. Id.
1 Celio’s brief does not contain a single citation to the record. See Ind. Appellate Rule 22(C) (providing that factual contentions shall be supported by citation to the record); Ind. App. R. 46(A)(5), (6), and (8) (providing that an appellant’s brief must contain citations to the record in accordance with Ind. App. R. 22(C)). To avoid waiver in the future, we remind counsel to provide citations to the record as required by the Appellate Rules.
Court of Appeals of Indiana | Memorandum Decision 30A05-1609-CR-2124 | July 20, 2017 Page 3 of 6 [6] The Rape Shield Rule provides in relevant part as follows:
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim or witness engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s or witness’s sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s or witness’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
(B) evidence of specific instances of a victim’s or witness’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant’s constitutional rights.
Court of Appeals of Indiana | Memorandum Decision 30A05-1609-CR-2124 | July 20, 2017 Page 4 of 6 Ind. R. Evid. 412.2 The evidence Celio sought to introduce—that L.D. had
been molested by other men—clearly falls within the category of evidence that
the Rape Shield Rule generally prohibits.3 See Oatts v. State, 899 N.E.2d 714,
721 (Ind. Ct. App. 2009). It is also undisputed that the excluded evidence does
not fall within the exceptions set forth in Evid. R. 412(b)(1)(A) or (B). Thus,
the question before us is whether the excluded evidence falls within Evid. R.
412(b)(1)(C), that is, whether the exclusion of the evidence violated Celio’s
constitutional rights.
[7] Celio argues that the exclusion of evidence that L.D. had been molested by
three other men violated his Sixth Amendment right to cross-examine
witnesses. As this court has noted, the right to cross examination is not
absolute, and that right may bow in appropriate cases to accommodate other
legitimate interests in the criminal trial process. Oatts, 899 N.E.2d at 722.
There are, however, instances in which the application of the Rape Shield Rule
may violate a defendant’s Sixth Amendment rights. Id. As is relevant here,
“the Sixth Amendment may be implicated when a defendant establishes that
2 Our Supreme Court has noted that the Rape Shield Rule incorporates the basic principles of Ind. Code § 35- 37-4-4. State v. Walton, 715 N.E.2d 824, 826 (Ind. 1999). To the extent there are any differences between the two, the Rape Shield Rule controls. Id. at 826 n.5. 3 Celio makes a brief argument that “the prohibited evidence would not necessarily be of prior sexual activity” because it is unclear whether the other alleged molestations occurred before or after the molestations of which Celio was convicted.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 20 2017, 8:53 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffrey D. McClarnon Curtis T. Hill, Jr. Greenfield, Indiana Attorney General of Indiana
Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert Francisco Celio, July 20, 2017 Appellant-Defendant, Court of Appeals Case No. 30A05-1609-CR-2124 v. Appeal from the Hancock Circuit Court State of Indiana, The Honorable Richard D. Culver, Appellee-Plaintiff Judge Trial Court Cause No. 30C01-1510-FA-1513
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 30A05-1609-CR-2124 | July 20, 2017 Page 1 of 6 [1] Robert Celio appeals following his convictions for Class A felony child
molesting, Class A felony criminal deviate conduct, Class B felony incest, Class
C felony child molesting, and Class C felony intimidation. On appeal, Celio
argues that the trial court abused its discretion in excluding evidence pursuant
to Ind. Evidence Rule 412, commonly referred to as the Rape Shield Rule.
[2] We affirm.
Facts & Procedural History
[3] Celio met his biological daughter, L.D., in 2006, when L.D. was approximately
six years old. After Celio’s paternity was established through genetic testing,
Celio rekindled his relationship with L.D.’s biological mother and moved in
with the family. Shortly thereafter, Celio began to sexually abuse L.D. These
incidents involved Celio penetrating L.D.’s vagina with his finger and his penis
and penetrating her anus with his penis. On one occasion, Celio choked L.D.
and beat her with a belt before vaginally and anally penetrating her. On
another occasion, Celio held a knife to L.D.’s throat. On yet another occasion,
Celio held a gun to L.D.’s head after the assault and threatened to hurt her and
her mother if she told anyone what he had done. L.D. did not tell anyone
about the abuse because she was afraid.
[4] Eventually, Celio’s and L.D.’s biological mother’s parental rights to L.D. were
terminated for reasons unrelated to the sexual abuse. L.D. was adopted in
2012, and nearly two years later, L.D. finally disclosed the abuse to her
adoptive parents. L.D.’s adoptive parents contacted the Department of Child
Court of Appeals of Indiana | Memorandum Decision 30A05-1609-CR-2124 | July 20, 2017 Page 2 of 6 Services and an investigation ensued, as a result of which Celio was charged
with the offenses set forth above. A two-day jury trial commenced on July 12,
2016, at the conclusion of which Celio was found guilty as charged. On August
18, 2016, the trial court sentenced Celio to an aggregate term of fifty years in
the Department of Correction. Celio now appeals.
Discussion & Decision
[5] Celio argues that the trial court abused its discretion in excluding evidence that
L.D. had been molested by other individuals.1 Trial courts are afforded wide
discretion in ruling on the admissibility of evidence, and our review of such
decisions is limited to determining whether the court abused that discretion.
Beasley v. State, 46 N.E.3d 1232, 1235 (Ind. 2016). An abuse of discretion
occurs when the trial court’s decision is clearly against the logic and effect of
the facts and circumstances and the error affects a party’s substantial rights. Id.
In considering whether a trial court has abused its discretion in the admission or
exclusion of evidence, we do not reweigh the evidence. Id. We consider only
the evidence favorable to the ruling and any unrefuted evidence favorable to the
defendant. Id.
1 Celio’s brief does not contain a single citation to the record. See Ind. Appellate Rule 22(C) (providing that factual contentions shall be supported by citation to the record); Ind. App. R. 46(A)(5), (6), and (8) (providing that an appellant’s brief must contain citations to the record in accordance with Ind. App. R. 22(C)). To avoid waiver in the future, we remind counsel to provide citations to the record as required by the Appellate Rules.
Court of Appeals of Indiana | Memorandum Decision 30A05-1609-CR-2124 | July 20, 2017 Page 3 of 6 [6] The Rape Shield Rule provides in relevant part as follows:
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim or witness engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s or witness’s sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s or witness’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
(B) evidence of specific instances of a victim’s or witness’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant’s constitutional rights.
Court of Appeals of Indiana | Memorandum Decision 30A05-1609-CR-2124 | July 20, 2017 Page 4 of 6 Ind. R. Evid. 412.2 The evidence Celio sought to introduce—that L.D. had
been molested by other men—clearly falls within the category of evidence that
the Rape Shield Rule generally prohibits.3 See Oatts v. State, 899 N.E.2d 714,
721 (Ind. Ct. App. 2009). It is also undisputed that the excluded evidence does
not fall within the exceptions set forth in Evid. R. 412(b)(1)(A) or (B). Thus,
the question before us is whether the excluded evidence falls within Evid. R.
412(b)(1)(C), that is, whether the exclusion of the evidence violated Celio’s
constitutional rights.
[7] Celio argues that the exclusion of evidence that L.D. had been molested by
three other men violated his Sixth Amendment right to cross-examine
witnesses. As this court has noted, the right to cross examination is not
absolute, and that right may bow in appropriate cases to accommodate other
legitimate interests in the criminal trial process. Oatts, 899 N.E.2d at 722.
There are, however, instances in which the application of the Rape Shield Rule
may violate a defendant’s Sixth Amendment rights. Id. As is relevant here,
“the Sixth Amendment may be implicated when a defendant establishes that
2 Our Supreme Court has noted that the Rape Shield Rule incorporates the basic principles of Ind. Code § 35- 37-4-4. State v. Walton, 715 N.E.2d 824, 826 (Ind. 1999). To the extent there are any differences between the two, the Rape Shield Rule controls. Id. at 826 n.5. 3 Celio makes a brief argument that “the prohibited evidence would not necessarily be of prior sexual activity” because it is unclear whether the other alleged molestations occurred before or after the molestations of which Celio was convicted. The Rape Shield Rule prohibits the introduction of evidence “that a victim or witness engaged in other sexual behavior[.]” Evid. R. 412(a)(1). It is irrelevant whether that behavior occurred before or after the charged acts. See Pribie v. State, 46 N.E.3d 1241, 1247 (Ind. Ct. App. 2015), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 30A05-1609-CR-2124 | July 20, 2017 Page 5 of 6 the victim engaged in a similar pattern of sexual acts.” Id. (quoting Williams v.
State, 691 N.E.2d 195, 201 (Ind. 1997)).
[8] Celio argues that questioning L.D. regarding her other molestations would have
allowed the jury to infer that some of the actions L.D. attributed to Celio were
actually attributable to the other perpetrators. Celio makes a number of
conclusory assertions that there were similarities between L.D.’s allegations
against Celio and her allegations against the other perpetrators, but he has
provided no citation to the record to support those claims. Furthermore, our
review of the record has revealed no such similarities. In fact, the record before
us contains no specific facts concerning L.D.’s molestation by other men.
Without sufficient facts showing a similarity between L.D.’s allegations against
Celio and her allegations against other perpetrators, Celio’s argument must fail.
See Oatts, 899 N.E.2d at 725 (rejecting a similar argument because the defendant
“did not offer specific details of the previous molestation and thus failed to
show that the prior molestation was similar to the current offense”).
[9] Judgment affirmed.
[10] Kirsch, J. and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 30A05-1609-CR-2124 | July 20, 2017 Page 6 of 6