Riehle v. State

823 N.E.2d 287

Donald RIEHLE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 15A05-0311-CR-557.

Court of Appeals of Indiana.

March 1, 2005.

Transfer Denied May 12, 2005.

Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Matthew D. Fisher, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

Donald Riehle appeals his convictions for Child Molesting as a Class A felony, Child Molesting as a Class C felony, Conspiracy to Commit Child Molesting as a Class A felony, and Conspiracy to Commit Child Molesting as a Class C felony. Because the evidence shows that Riehle performed deviate sexual conduct with the nine-year-old victim and that Riehle entered into an agreement with the child's mother to do so, the evidence is sufficient to support his convictions for Child Molesting as a Class A felony and Conspiracy to Commit Child Molesting as a Class A felony. Further, the trial court did not abuse its wide discretion in allowing the State to lead the victim during her direct examination given her young age and obvious reluctance to testify about the details of the crimes. In addition, the trial court did not commit fundamental error in admitting an entire tape recording of a conversation between Riehle and an informant into evidence given its relevance to the charged crimes. Moreover, the continuing crime doctrine does not apply to the facts of this case, and therefore, the State properly charged and convicted Riehle. Finally, we remand this case for resentencing in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

Facts and Procedural History

Ruth Ann Reed is the mother of K.R., who was nine years old at the time of the events underlying this case. Fifty-nine-year-old Riehle had been friends with the Reed family for many years. On at least two occasions in 2002, Ruth took K.R. to Riehle's camper. Riehle would then give Ruth money "in return for sex" with K.R. Tr. p. 89. On the first occasion, Ruth stood outside the camper and looked inside through a window. Riehle laid on top of K.R., who still had her clothes on, until he had an erection and ejaculated. On the second occasion, Ruth left K.R. in the camper and went outside to use the rest-room. When Ruth returned to the camper, K.R. and Riehle were lying in Riehle's bed. K.R.'s pants were pulled down and Riehle had his penis between her legs. Riehle laid there until he had an erection, which took approximately twenty to twenty-five minutes. Ruth pled guilty to Promoting Prostitution as a Class B felony and Neglect of a Dependent Child as a Class D felony for her role in these crimes.

Also during this same time frame, there were sexual encounters with Riehle, K.R., and K.R.'s great-aunt Sharon Reed in Riehle's camper. During these encounters, Sharon and K.R. would wrestle on Riehle's bed while he watched them from outside through a window. Upon getting aroused, Riehle would join K.R. and Sharon on the bed. Riehle would then "get on" Sharon "to get satisfied." Id. at 33. Sometimes, Riehle would "hold [K.R.] down beside [them]." Id. at 42. On one occasion, Riehle was "on top of [K.R.]" and ejaculated on her stomach. Id. at 37. Riehle paid Sharon for sex and for participating in the touching sessions with K.R. in the camper. Sharon pled guilty to Child Molesting as a Class C felony for her role in these crimes.

In February 2003, Ronald Lataille, who was facing charges of defrauding Riehle, told police officers that he could give them damaging information about Riehle. Lataille was then fitted with a wire transmitter to tape record his exchanges with Riehle. Lataille approached Riehle under the guise of wanting information and advice about having a sexual encounter with K.R. Riehle told Lataille that he had tried to have sexual intercourse with K.R. but she would not do it. Riehle admitted, however, that he rubbed K.R.'s vagina with his leg and also rubbed her buttocks. Riehle also told Lataille that he looked forward to K.R. having pubic hair, that he could "get in her pants" whenever he wanted, and that her vagina was "nice and fat" for a girl her age. State's Ex. 15. Riehle explained that he had to give Sharon money to keep her quiet but that K.R. would not tell anyone. Riehle then offered to set up a sexual encounter between Lataille and K.R. and offered his own advice, such as to take things slow, that K.R. cannot have an orgasm while on top, and to wear a condom because K.R. had been with other men.

Shortly thereafter, Bonnie Haas, an investigator for the Dearborn County Division of Family and Children, interviewed K.R. During the interview, K.R. told Haas that she had been naked with Riehle on several occasions in the camper and that Riehle "had put his peter in her butt." Tr. p. 165. K.R. also told Haas that Riehle had touched her vagina with his hand and body. Id.

The State charged Riehle with six counts, one of which it later dropped. Following a trial by jury, Riehle was convicted of four counts: Child Molesting as a Class A felony (deviate sexual conduct),¹ Child Molesting as a Class C felony (touching and fondling),² Conspiracy to Commit Child Molesting as a Class A felony,³ and Conspiracy to Commit Child Molesting as a Class C felony.⁴ Riehle was acquitted of the Class A felony child molesting charge that alleged he had sexual intercourse with K.R. The trial court sentenced Riehle to an aggregate sentence of 108 years. Riehle now appeals.

Discussion and Decision

Riehle raises five issues on appeal. First, he contends that the evidence is insufficient to support his Class A felony convictions. Second, Riehle contends that the trial court erred in allowing the State to lead K.R. during her direct examination. Third, he contends that the trial court erred by admitting the entire tape recording of his conversation with Lataille into evidence. Fourth, Riehle contends that two of his convictions violate the continuing crime doctrine. Finally, he contends that his sentence violates Blakely v. Washington. We address each issue in turn.

I. Sufficiency of the Evidence

Riehle first contends that the evidence is insufficient to support his Class A felony convictions for Child Molesting and Conspiracy to Commit Child Molesting. When reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look only to the probative evidence supporting the judgment and the reasonable inferences from that evidence to determine whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Id. We will uphold the conviction if there is substantial evidence of probative value to support it. Id.

Riehle first argues that the evidence is insufficient to support his conviction for Child Molesting as a Class A felony. In order to convict Riehle of child molesting as a Class A felony as charged in this case, the State must have proved that Riehle, who was at least twenty-one years of age, performed deviate sexual conduct with K.R., who was under fourteen years of age. Ind.Code § 35-42-4-3(a)(1). "Deviate sexual conduct," in turn, is defined in relevant part as an act involving "a sex organ of one person and the mouth or anus of another person." Ind.Code § 35-41-1-9(1). The State alleged in the charging information that Riehle "touched his penis to the anus of [K.R.]" Appellant's App. p. 424.

On appeal, Riehle claims that the State failed to "prove beyond a reasonable doubt that [his] penis ever came in contact with K.R.'s anus." Appellant's Br. p. 8. In making this claim, Riehle challenges Haas' trial testimony and points out that he did not admit to touching his penis to K.R.'s anus during his secretly-recorded conversation with Lataille, a time when he had no reason to lie. Although proof of anal penetration is not required to convict a defendant of child molesting by deviate sexual conduct, for an act to "involve" the anus there must be contact with the anus. Downey v. State, 726 N.E.2d 794, 798 (Ind.Ct.App.2000),reh'g denied, trans. denied. "The plain and ordinary meaning of `anus,' or anal orifice, is `the lower opening of the digestive tract, lying in the fold between the nates [buttocks], through which fecal matter is extruded.'" Id. at 797 (quoting Stedman's Medical Dictionary 95 (4th ed.1976)). In contrast, "[t]he `buttocks,' or nates, are `the prominence formed by the gluteal muscles,' or `the two rounded prominences separated by a median cleft that form the lower part of the back ... and consist largely of the gluteus muscles.'" Id. (quoting Stedman's Medical Dictionary 923 (4th ed.1976) and Webster's Third New International Dictionary 305 (1976)) (citation omitted).

Here, K.R. told Haas, who then testified at trial, that Riehle "had put his peter in her butt." Tr. p. 165 (emphasis added). K.R., who was ten years old at the time of trial, also testified that Riehle's "peter" touched her "butt." Id. at 131. K.R. explained that the term "butt" is "the part of your body where you go poop out of." Id. at 72. K.R.'s testimony tracks the Downey court's definition of anus. Because there is evidence that Riehle's penis contacted K.R.'s anus, the evidence is sufficient to support Riehle's conviction for Child Molesting as a Class A felony. Accordingly, Riehle's argument is merely an invitation for us to reweigh the evidence, which we will not do.

Riehle next argues that the evidence is insufficient to support his conviction for Conspiracy to Commit Child Molesting as a Class A felony. In order to convict Riehle of conspiracy to commit child molesting as a Class A felony as charged in this case, the State must have proved that Riehle, with intent to commit the felony, agreed with Ruth to commit Child Molesting as a Class A felony (sexual intercourse or deviate...