Ronald C. Weyland v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 3, 2015
• Docket: 48A04-1409-CR-446
• Status: Published

Opinion

MEMORANDUM DECISION Jun 03 2015, 10:56 am Pursuant to Ind. Appellate Rule 65(D), 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 Frederick Vaiana Gregory F. Zoeller Voyles Zahn & Paul Attorney General of Indiana Indianapolis, Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ronald C. Weyland, June 3, 2015

Appellant-Defendant, Court of Appeals Case No. 48A04-1409-CR-446 v. Appeal from the Madison Circuit Court The Honorable Dennis D. Carroll, State of Indiana, Judge Appellee-Plaintiff Cause No. 48C06-1306-FA-1227

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015 Page 1 of 13 Case Summary [1] After a jury trial, Ronald C. Weyland (“Weyland”) was convicted of Attempted

Child Molesting, as a Class A felony;1 Child Molesting, as a Class A felony;2

and Child Molesting, as a Class C felony.3 He now appeals.

[2] We affirm in part, reverse in part, and remand.

Issues [3] Weyland raises two issues for our review, which we restate as:

1. Whether there was sufficient evidence to sustain his convictions; and 2. Whether the trial court abused its discretion when it limited the scope of his cross-examination of a witness.

Facts and Procedural History [4] Weyland had a daughter, E.K., with Amy K. (“Amy”). E.K. was born on

January 20, 2008. Weyland and Amy did not live together, and Amy had

primary custody of E.K. Weyland, who lived in Pendleton, and Amy had

arranged for E.K. to spend two days each week with Weyland. Weyland also

provided childcare for E.K. on nights when Amy needed to work late.

1 Ind. Code §§ 35-42-4-3(a)(1) & 35-41-5-1. 2 I.C. § 35-42-4-3(a)(1). 3 I.C. § 35-42-4-3(b).

Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015 Page 2 of 13 [5] E.K. had a room in Weyland’s home, where Weyland lived with his mother,

Ivana, and his older daughter and E.K.’s half-sister, Makayla. Sometimes E.K.

slept in her own bed; sometimes she slept with Weyland in his bed.

[6] Weyland, Ivana, and Makayla each helped care for E.K., including bathing

E.K. and helping E.K. shower. On a number of occasions, Weyland would

shower naked with E.K., and would wash E.K.’s genitals. E.K. expressed

reluctance to shower when Ivana or Makayla showered her; when Weyland

would shower her, however, E.K. would scream, cry, and throw herself on the

floor.

[7] Around December 25, 2012, Weyland had a number of relatives staying at his

home for the Christmas holiday. E.K., who was four years old at the time, also

stayed with Weyland for five or six nights.

[8] Amy picked E.K. up from Weyland’s house on the evening of December 27,

2012. While Amy drove home, she and E.K. were talking. At some point

during the conversation, E.K.’s tone of voice changed, and she told Amy that

Weyland had touched her inappropriately. When Amy pulled the car over and

called her mother (“Maternal Grandmother”), E.K. protested to Amy that it

was “daddy’s secret and you’ll go to jail.” Tr. at 143.

[9] Amy drove to Community Hospital in Anderson, where a sexual assault

examination was performed on E.K. The following day, a forensic interviewer

working for the Indiana Department of Child Services interviewed E.K.

Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015 Page 3 of 13 During the interview, E.K. stated that Weyland had touched her genitals with a

picture-hanging nail and had placed his penis on her mouth.

[10] A police investigation ensued based upon E.K.’s statements. On June 21, 2013,

Weyland was charged with two counts of Attempted Child Molesting, as Class

A felonies, and Child Molesting, as a Class C felony. The State also filed a

notice of intent to seek a Habitual Offender enhancement.

[11] On August 5, 2014, the State amended the charges against Weyland, adding to

the existing charges an additional charge of Child Molesting, as a Class A

felony.

[12] A jury trial was conducted on August 6 and 7, 2014. During the trial, the State

dismissed one count of Attempted Child Molesting, as a Class A felony.

[13] Also during the trial, Weyland sought to introduce extrinsic evidence in the

form of testimony from Amy concerning statements E.K. had made, which

statements Weyland contended were inconsistent with prior statements of E.K.

The State objected, and after an offer of proof the trial court ruled those

statements inadmissible under Evidence Rules 613 and 403.

[14] At the close of the trial, the jury found Weyland guilty of the three remaining

charges: Attempted Child Molesting, as a Class A felony; Child Molesting, as a

Class A felony; and Child Molesting, as a Class C felony.

[15] A sentencing hearing was conducted on September 8, 2014. During the

hearing, the trial court entered judgments of conviction against Weyland. At

Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015 Page 4 of 13 the end of the hearing, the court sentenced Weyland to forty-five years

imprisonment for each of the two Class A felony-level convictions, and to six

years imprisonment for the Class C felony-level conviction. The trial court ran

the sentences concurrent with one another, yielding an aggregate term of

imprisonment of forty-five years.

[16] This appeal ensued.

Discussion and Decision Sufficiency of the Evidence [17] On appeal, Weyland first contends that there was insufficient evidence to

convict him of Attempted Child Molesting and Child Molesting, as Class A

felonies, and of Child Molesting, as a Class C felony.

[18] Our standard of review in challenges to the sufficiency of evidence is well

settled. We consider only the probative evidence and reasonable inferences

supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do

not assess the credibility of witnesses or reweigh evidence. Id. We will affirm

the conviction unless “no reasonable fact-finder could find the elements of the

crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726

N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an inference may

reasonably be drawn from it to support the verdict.” Id. at 147 (quoting Pickens

v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).

Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015 Page 5 of 13 [19] To convict Weyland of Attempted Child Molesting, as a Class A felony, as

charged, the State was required to prove beyond a reasonable doubt that

Weyland, being at least twenty-one years old, attempted to commit Child

Molesting, that is, to perform or submit to sexual intercourse or criminal

deviate conduct with E.K., a child under fourteen years of age, by engaging in a

substantial step toward committing the crime of child molesting, namely,

attempting to place his penis in E.K.’s mouth. See I.C. §§ 35-42-4-3(a)(1) & 35-

41-5-1; App’x at 108. There is sufficient evidence of a substantial step toward

commission of a crime based upon taking an action, the “natural and usual

sequence of which” would lead to commission of a completed offense. Boling v.

State, 982 N.E.2d 1055, 1057 (Ind. Ct. App. 2013).

[20] The evidence that favors the judgment as to Attempted Child Molesting, as a

Class A felony, is that Weyland put his penis on or near E.K.’s mouth for

“about three minutes” according to E.K.’s testimony, Tr. at 129, at least long

enough for E.K. to testify at trial that Weyland’s penis was “squishy” or

“squishy hard.” Tr. at 117. The jury was within its ambit to conclude that the

“natural and usual sequence” of placing a penis near another person’s mouth is

to engage in oral sex. Boling, 982 N.E.2d at 1057. To the extent Weyland

contends he did not use any force or that touching his penis to E.K.’s mouth

was “incidental” and “nothing that rises to the level of deviate sexual conduct,”

Appellant’s Br. at 10, we regard such argument as an invitation to reweigh

evidence, which we will not do. Drane, 867 N.E.2d at 146. We accordingly

affirm his conviction for Attempted Child Molesting, as a Class A felony.

Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015 Page 6 of 13 [21] Weyland also argues that there was insufficient evidence to sustain his

conviction for Child Molesting, as a Class A felony. To convict Weyland of

Child Molesting, as a Class A felony, as charged, the State was required to

prove beyond a reasonable doubt that Weyland, being at least twenty-one years

old, performed or submitted to deviate sexual conduct with E.K., a child of

under fourteen years of age, by inserting an object into the sex organ or anus of

E.K. See I.C. § 35-42-4-3(a)(1); App’x at 109. On this count, Weyland argues

that there was insufficient evidence that he actually inserted an object—here, a

picture-hanging nail—into E.K.’s vagina or anus. That is, Weyland argues

there was insufficient evidence to satisfy the requirement of penetration

necessary to sustain a conviction for criminal deviate conduct or sexual

intercourse, as required by the charging statute.

[22] Our supreme court has emphasized that “proof of the slightest penetration is

enough to support a conviction.” Spurlock v. State, 675 N.E.2d 312, 315 (Ind.

1996). Detailed anatomical descriptions of penetration are unnecessary to

sustain a conviction. Id. However, in Spurlock, the Indiana Supreme Court

concluded there was insufficient evidence of penetration. In particular, the

Suprlock Court observed that the victim in that case testified that “Spurlock’s

penis touched her vagina,” but never testified that “it penetrated and went

inside, and explicitly said she did not know whether that occurred.” Id.

Spurlock’s victim also testified that “her vagina was used to go to the bathroom

as well as to have intercourse, demonstrating only a generalized understanding

of the term.” Id.

Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015 Page 7 of 13 [23] The evidence that favors the judgment comes, again, in the form of E.K.’s

testimony. E.K. identified Weyland’s “middle part” as being what he used to

“go potty,” Tr. at 115, and demonstrated knowledge generally that her own

“middle part” or “bottom” should not be touched. Tr. at 112. E.K. testified

that Weyland pulled down her pants and underwear and used a nail to touch

her “middle part.” Tr. at 113. This “hurt a little bit.” Tr. at 114. E.K. testified

that Weyland touched the “[o]utside because daddy still loves me” and “didn’t

want it to hurt me that much.” Tr. at 114. Both upon direct and cross

examination, E.K. testified only that Weyland had touched her genitalia on the

“outside.” Tr. at 114, 129. And while E.K. was examined by Holly Renz

(“Renz”), a Sexual Assault Nurse Examiner, that examination provided no

probative evidence as to whether any penetration had occurred.

[24] Based upon this, even viewed in a light most favorable to the judgment, we

cannot conclude that there was sufficient evidence of penetration to convict

Weyland of Child Molesting, as a Class A felony. We accordingly reverse the

trial court and, on remand, instruct the trial court to vacate Weyland’s

conviction for Child Molesting, as a Class A felony.

[25] We now turn to the last of Weyland’s three convictions. To convict Weyland

of Child Molesting, as a Class C felony, as charged, the State was required to

prove beyond a reasonable doubt that Weyland performed or submitted to any

fondling or touching with E.K., a child then under fourteen years of age, with

the intent to arouse or satisfy either Weyland’s or E.K.’s sexual desires. See I.C.

§ 35-42-4-3(b); App’x at 109.

Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015 Page 8 of 13 [26] Here, Weyland argues that there was insufficient evidence of his intent to

arouse or satisfy his or E.K.’s sexual desires. Weyland observes that he, Ivana,

and Makayla all bathed E.K., including washing her genital area. Our review

of the record, however, reveals that only Weyland showered with E.K. while

both were nude. Moreover, Makayla testified that while E.K. would show

reluctance to shower when prompted by Ivana or Makayla, E.K. would throw

herself on the floor and scream when Weyland took her to shower. And while

Weyland’s touching of the outside of E.K.’s genitalia with a nail did not

amount to Child Molesting, as a Class A felony, Weyland’s purposive removal

of E.K.’s pants and touching of her genital area is sufficient evidence to sustain

the Class C felony conviction Weyland also challenges.

[27] We conclude that there was sufficient evidence from which a reasonable jury

could conclude that Weyland committed Child Molesting, as a Class C felony.

We accordingly affirm this conviction.

Admissibility of Evidence [28] Weyland also contends that the trial court abused its discretion and thereby

committed reversible error when it denied his efforts to introduce extrinsic

evidence of E.K.’s prior inconsistent statements, which evidence was to take the

form of Amy’s testimony. 4

4 Weyland frames this initially as a constitutional question, referring to the confrontation provisions of the U.S. and Indiana constitutions. His substantive argument deals exclusively with the effect of Evidence Rules

Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015 Page 9 of 13 [29] We review a trial court’s rulings on the admissibility vel non of evidence for an

abuse of discretion. Orr v. State, 968 N.E.2d 858, 860 (Ind. Ct. App. 2012). An

abuse of discretion occurs when the trial court’s decision is contrary to the facts

and circumstances before it, or when the court misinterprets the law. Bryant v.

State, 959 N.E.2d 315, 321 (Ind. Ct. App. 2011). Even where a trial court

abuses its discretion, however, we will not reverse the judgment if the error is

harmless, that is, if the decision had no prejudicial effect on the substantial

rights of the parties. Ind. Trial Rule 61.

[30] At trial, Weyland sought under Evidence Rules 613 and 403 to obtain extrinsic

evidence that E.K. had made prior statements to Amy that were inconsistent

with E.K.’s trial testimony. The court denied Weyland’s efforts to cross-

examine Amy for these purposes. Evidence Rule 613 governs impeachment of

witnesses through prior statements:

(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement, a party need not show it or disclose its content to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney. (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).

613 and 403 and applicable case law, however. To the extent Weyland contends there was error of constitutional dimension, then, that contention is waived. See Ind. Appellate Rule 46(A)(8)(a).

Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015 Page 10 of 13 Evidence Rule 403 provides, “The court may exclude relevant evidence if its

probative value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue

delay, or needlessly presenting cumulative evidence.”

[31] The State objected to Weyland’s efforts to introduce extrinsic evidence in the

form of Amy’s testimony, contending that Weyland had failed to lay a proper

foundation because he had not confronted E.K. with her alleged prior

inconsistent statements. See Orr, 968 N.E.2d at 863 (stating that the preferred

method of introducing extrinsic evidence under Rule 613 is by confronting a

witness before offering extrinsic evidence). The trial court observed that Rule

613 permitted admission of extrinsic evidence even absent an opportunity for

the witness to address prior inconsistent statements when “justice so requires,”

Evid. R. 613(b), and opined that the interests of justice might so require where a

witness was especially young like E.K. See Orr, 968 N.E.2d at 864-65

(observing that trial courts have discretion to admit extrinsic evidence for

impeachment of a witness under Evid. R. 613).

[32] Accordingly, prior to a final ruling, the trial court heard Weyland’s offer of

proof:

Q: [Amy], over the course of the last year and half is it fair to say that [E.K.] has said different things at different times about what her father did to her? A: Yes. Tr. at 193. The State posed several follow-up questions:

Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015 Page 11 of 13 Q: You stated that [E.K.] has said different things at different times, the substance of which, has that remained the same? A: Yes, just yes, she just disclosed more as time has gone on, her story hasn’t changed. Q: She’s just disclosed more? A: Yes, things that she had originally disclosed to only DCS, you know, she disclosed to me now. She just elaborated more. There hasn’t been… Q: She’s just given you more information than what she did originally in the car? A: Yes. Tr. at 193-94. When asked by the trial court whether he had further questions

to ask as part of the offer of proof, Weyland’s counsel said, “No, Judge, that’s

it.” Tr. at 194.

[33] Based upon this record, and assuming without deciding there was any error in

the trial court’s decision not to permit this examination of Amy before the jury,

we cannot conclude that Weyland was prejudiced by the trial court’s decision

not to admit such testimony. The proffered testimony did nothing to establish

that E.K. had made significant inconsistent statements, let alone statements that

might have substantially undermined E.K.’s testimony. We accordingly

conclude that Weyland has failed to establish that he was prejudiced by any

error on the part of the trial court, even assuming the trial court’s ruling was

erroneous.

Conclusion

Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015 Page 12 of 13 [34] There was sufficient evidence to sustain Weyland’s convictions for Attempted

Child Molesting, as a Class A felony, and Child Molesting, as a Class C felony.

Concluding there was insufficient evidence to support Weyland’s conviction for

Child Molesting, as a Class A felony, we accordingly reverse the trial court.

Finding as harmless any error in the trial court’s limitation of Weyland’s

examination of a witness, we leave undisturbed Weyland’s two remaining

convictions, but remand with instructions to vacate Weyland’s conviction for

Child Molesting, as a Class A felony.

[35] Affirmed in part, reversed in part, and remanded.

Riley, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015 Page 13 of 13