Spradlin v. State

1

Elmer Ray Spradlin, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff

No. 22A-CR-2984

Court of Appeals of Indiana

January 16, 2024

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Tippecanoe Superior Court The Honorable Steven P Meyer, Judge Trial Court Cause No. 79D02-2010-F1-14

ATTORNEY FOR APPELLANT Aaron J. Spolarich Bennett Boehning & Clary, LLP Lafayette, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

WEISSMANN, JUDGE.

[¶1] Elmer Spradlin was convicted of six counts of child molesting and one count of vicarious sexual gratification for acts he committed against his two surrogate granddaughters over a seven-year period. Spradlin appeals his convictions, contending he was deprived of his constitutional right to confront witnesses when the trial court found the youngest victim unavailable for trial and admitted the victim's forensic interviews in place of her trial testimony.

Spradlin also challenges his 60-year sentence as inappropriate. We reject Spradlin's claims and decline to revise Spradlin's sentence, but we remand for correction of a scrivener's error in the Abstract of Judgment.

Facts

[¶2] Spradlin is the surrogate grandfather of two sisters: Victim 1 (born in 2006) and Victim 2 (born in 2003).^[1] Beginning in 2007, when Victim 2 was about four years old, Spradlin touched and rubbed Victim 2's vagina several times during her visits to his home. Spradlin similarly touched Victim 2 again during her visits when she was six. The molestations continued for the next five years until Victim 2 was 11 years old and started locking her room at night.

[¶3] Spradlin also molested Victim 1 during visits to his home from the time she was about three years old. The molestations of Victim 1 continued after the family of Victims 1 and 2 moved into Spradlin's home due to financial difficulties in the summer of 2016. For almost seven years, Spradlin rubbed and digitally penetrated Victim 1's vagina as well as squeezed her breasts, sometimes several times daily. Spradlin, while clothed, pressed his penis against Victim 1's buttocks or vagina. At other times, he tried to force Victim 1's hand between his legs. And he once forced a pet dog to lick Victim 1's vagina.

[¶4] Once when Victim 1 accused Spradlin of being perverted, Spradlin laughingly denied the accusation before asking Victim 1 if she wanted him to be a pervert. On another occasion, when Victim 1 told Spradlin she would report his conduct, Spradlin threatened that police would take away their shared home if she did.

[¶5] Spradlin last molested Victim 1 in November 2016, when she was ten years old. Soon afterward, Victim 1 reported Spradlin's molestations to school friends and a teacher. Upon learning of the molestations, Victim 1's mother contacted police, who arranged a forensic interview of Victim 1. Victim 2 later reported that she too had been molested by Spradlin. The girls' family moved out of Spradlin's home around Thanksgiving 2016. Spradlin had little contact with the family after that.

[¶6] Police interviewed Spradlin, who denied molesting Victims 1 and 2. The investigation languished for the next three years until March 2020, when police arranged a second forensic interview of Victim 1. Seven months later, the State charged Spradlin with 12 counts of child molesting and 4 counts of vicarious sexual gratification.

[¶7] Spradlin filed a notice of alibi alleging he had been working in Michigan from August 2009 to June 2010 and that he also worked at "SIA" in Lafayette during the entire period of the alleged molestations. He also sought to depose Victim 1. The State objected, and the trial court eventually denied Spradlin's request after a hearing.

[¶8] Shortly before Spradlin's jury trial, the State sought to admit Victim 1's forensic interviews in lieu of her trial testimony. After a hearing, the trial court found Victim 1 was a protected person unavailable for trial. That determination led to admission of Victim 1's forensic interviews at Spradlin's trial.

[¶9] The jury found Spradlin not guilty of two counts of vicarious sexual gratification but guilty of the remaining charges. Based on double jeopardy concerns, the trial court convicted Spradlin only of six counts of child molesting and one count of vicarious sexual gratification. The court then sentenced Spradlin to 60 years imprisonment, with 8 years suspended to supervised probation. Spradlin appeals both his convictions and his sentence.

Discussion and Decision

[¶10] Spradlin raises three primary issues on appeal. First, he contends the trial court violated Spradlin's right to confront Victim 1 under the Sixth Amendment to the United States Constitution and Article 1, Section 13 of the Indiana Constitution. Second, he argues that the trial court abused its discretion by admitting his booking photograph into evidence. Finally, Spradlin challenges his 60-year aggregate sentence as inappropriate under Indiana Appellate Rule 7(B). Finding no reversible error or inappropriate sentence, we affirm Spradlin's convictions and sentence but remand for a minor scrivener's error in the sentencing documents.

I. The Trial Court Did Not Violate Spradlin's Constitutional Right to Confrontation

[¶11] Under both the federal and state constitutions, criminal defendants have the right to confront witnesses against them. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him"); Ind. Const. art. 1, § 13 ("In all criminal prosecutions, the accused shall have the right . . . to meet the witnesses face to face"). Spradlin argues that the trial court violated his constitutional right to confront witnesses under both the federal and state constitutions by erroneously: (1) admitting under Indiana Code § 35-37-4-6 (the Protected Person Statute) Victim 1's forensic interviews in lieu of her trial testimony; and (2) denying Spradlin's motions to depose Victim 1 under Indiana Code § 35-405-11.5 (the Child Deposition Statute). We find no confrontation right violation because the trial court acted in accordance with the governing statutes in admitting the forensic interviews and denying the deposition request.

A. Spradlin Has Shown No Unconstitutional Irregularities in the Protected Person Statute Proceedings

[¶12] Spradlin claims the admission of Victim 1's forensic interviews violated his confrontation right because the requirements of the Protected Person Statute were unmet and he was not allowed to confront Victim 1 face to face at the protected person hearing. We find neither claim persuasive.

[¶13] The Protected Person Statute permits admission of otherwise inadmissible hearsay evidence-including forensic interviews-relating to sex crimes against a victim who is under 14 years old at the time of the offense and less than 18 years at the time of trial. Ind. Code § 35-37-4-6(a)(1), (c)(1), (d) (2022). Before a child's forensic interview victim may be admitted under the Protected Person Statute, however, several requirements must be met.

[¶14] The trial court must find in a hearing outside the presence of the jury "that the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability." Ind. Code § 35-37-4-6(e)(1) (2022). The defendant has a right to be present at this hearing, and the protected person must appear either in person or through closed circuit television. Id. The protected person also must testify at trial or be found to be unavailable as a witness. Ind. Code § 35-37-4-6(e)(2) (2022). In this case, Victim 1 was found to be a protected person unavailable for trial. She therefore never appeared before the jury except through her recorded forensic interviews.

i. The Requirements of the Protected Person Statute Were Met

[¶15] Spradlin contends the unavailability and reliability requirements of the Protected Person Statute were not met here. He therefore concludes the trial court erred in admitting the forensic interviews in violation of his constitutional right to confront Victim 1.

[¶16] We review the admission of statements under the Protected Persons Statute for an abuse of discretion. Perryman v. State, 80 N.E.3d 234, 241 (Ind.Ct.App. 2017). Although the trial court is afforded broad discretion in evidentiary matters, the Protected Person Statute "impinges upon the ordinary evidentiary regime" and therefore imposes on the trial court "a special level of judicial responsibility." Carpenter v. State, 786 N.E.2d 696, 702 (Ind. 2003) (quoting Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999)). We conclude that both the unavailability and reliability requirements were met and that Spradlin has shown no constitutional irregularity in Victim 1's testimony at the protected person hearing.

a. Victim 1 Was Unavailable Under the Protected Person Statute

[¶17] For purposes of the Protected Person Statute, a protected person is unavailable for trial if the trial court finds, based on testimony of a "provider" and any "other evidence," that "testifying in the physical presence of the defendant will cause the protected person to suffer serious emotional distress such that the protected person cannot reasonably communicate." Ind. Code § 35-37-4-6(e)(2)(B)(i) (2022). A trial court's observations of the child alone cannot justify a finding of unavailability under the Protected Person Statute. Norris v. State, 53 N.E.3d 512, 518 (Ind.Ct.App. 2016).

[...