                                                                               Jul 15 2015, 5:32 am




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Thomas G. Godfrey                                           Gregory F. Zoeller
      Anderson, Indiana                                           Attorney General of Indiana
                                                                  Angela N. Sanchez
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Robert Seal,                                               July 15, 2015

      Appellant-Defendant,                                       Court of Appeals Case No. 48A02-
                                                                 1410-CR-775
              v.
                                                                 Appeal from the Madison Circuit
                                                                 Court
      State of Indiana,
                                                                 The Honorable Dennis D. Carroll,
      Appellee-Plaintiff                                         Judge
                                                                 Case No. 48C06-1308-FA-1546




      Crone, Judge.


                                              Case Summary
[1]   Robert Seal appeals his convictions for two counts of class A felony child

      molesting, two counts of class B felony incest, and one count of class B felony

      sexual misconduct with a minor. He argues that his federal and state

      constitutional rights were violated by the State’s failure to preserve audio
      Court of Appeals of Indiana |Opinion 48A02-1410-CR-775 | July 15, 2015                          Page 1 of 14
      recordings of his victims’ interviews, that the trial court abused its discretion in

      instructing the jury that time is not an element of the offenses, and that his

      conviction for class B felony sexual misconduct with a minor should have been

      merged with one of the class A felony child molesting convictions because the

      conduct supporting those convictions constitutes a single transaction under the

      continuous crime doctrine. We conclude that no violation of Seal’s

      constitutional rights occurred, the trial court did not abuse its discretion in

      instructing the jury, and the continuous crime doctrine is inapplicable.

      Therefore, we affirm.


                                  Facts and Procedural History
[2]   From 2007 to 2013, Seal lived with his two daughters, R.S. and R.M.S., in a

      two-bedroom trailer in Madison County. During some of that time, two

      younger children lived with them, Seal’s son R.W.S. and his stepdaughter J.H.

      R.S. and R.M.S. slept with Seal in his bedroom with the door locked. R.W.S.

      and J.H. slept in either the living room or the second bedroom. R.S. and

      R.M.S. were home schooled, and the two younger children went to public

      school.


[3]   Beginning in July 2007, when R.S. was ten years old, until February 2013,

      when she was sixteen, Seal touched her breasts, bottom, and vagina with his

      hand and engaged in sexual intercourse and oral sex with her on a regular basis.

      Beginning in 2009, when R.M.S. was ten years old, Seal had sexual intercourse

      and oral sex with her. These acts took place in Seal’s bedroom with the door

      locked. Both girls were present and witnessed Seal have sexual intercourse and
      Court of Appeals of Indiana |Opinion 48A02-1410-CR-775 | July 15, 2015     Page 2 of 14
      oral sex with the other. Sometimes Seal placed a camera on a tripod and

      recorded videos of their sexual activities. Seal told the girls that they were

      married to him, and they felt that their relationship with their father was like

      that of husband and wife.


[4]   In June 2013, Seal planned to marry a woman, after which she and her eight-

      year-old daughter would move in with him. R.S. and R.M.S. were concerned

      about the eight-year-old’s safety if she were to live with them, so they told the

      woman about the sexual abuse. When Seal found out from the woman what

      the girls had told her, he became angry, argued with the girls, and left the trailer

      with his laptop and his moped.


[5]   The girls were scared that Seal would return and hurt them, so they called 911.

      When the police arrived, the girls were “frantic, they were upset, crying … they

      were screaming, yelling, talking about they were in fear of their life, afraid that

      they were going to be killed by the father.” Tr. at 124. An officer spoke

      separately with each girl for five to ten minutes in a patrol car to find out why

      they called 911. He attempted to create and download audio recordings of

      these conversations, but later the police were unable to find the recordings. The

      officer did not know why the recordings were lost. The officer prepared a

      written report of the content of his conversations with the girls that he

      forwarded to the detective who prepared the probable cause affidavit. Id. at

      129-30. Later that day, the girls were brought to the police station, where they

      provided recorded statements.



      Court of Appeals of Indiana |Opinion 48A02-1410-CR-775 | July 15, 2015      Page 3 of 14
[6]   A police officer called Seal and asked him to come to the station, but Seal said

      that he was upset because his moped had run out of gas, he did not know where

      he was, and he was not in the right frame of mind to meet or talk with police.

      Seal was arrested eight months later in Fort Wayne.


[7]   About a week after the 911 call, the detective conducted follow-up interviews

      with the girls at the station. Although the police attempted to video record

      these follow-up interviews, for unknown reasons the recordings failed to

      capture the audio. However, the detective prepared a written summary of the

      interviews.


[8]   The State charged Seal with class A felony child molesting of R.S., class B

      felony sexual misconduct with R.S., class B felony incest with R.S., class A

      felony child molesting of R.M.S., and class B felony incest with R.M.S. At

      trial, the State tendered an instruction to clarify that time is not an element of

      the offenses. Seal objected. The trial court suggested modifying the instruction

      to explain that time is not an element but the victim’s age at the time of the

      offense is an element. The trial court gave this modified instruction over Seal’s

      objection.


[9]   The jury found Seal guilty as charged. The trial court sentenced Seal to an

      aggregate term of seventy-two years. He appeals.




      Court of Appeals of Indiana |Opinion 48A02-1410-CR-775 | July 15, 2015     Page 4 of 14
                                         Discussion and Decision

        Section 1 - Seal’s federal and state constitutional rights were
       not violated by the State’s failure to preserve audio recordings
                          of the victims’ interviews.
[10]   Seal contends that the State’s failure to preserve the audio recordings of his

       daughters’ interviews in the patrol car immediately following their 911 call and

       their follow-up interviews a week later violated his federal and state

       constitutional rights. 1 In essence, Seal’s argument is that the State failed to

       preserve evidence, which is generally analyzed as a due process issue.

                When determining whether a defendant’s due process rights have been
                violated by the State’s failure to preserve evidence, we must first decide
                whether the evidence is potentially useful evidence or material
                exculpatory evidence.
                Evidence is materially exculpatory if it possesses an exculpatory value
                that was apparent before the evidence was destroyed, and is of such a
                nature that the defendant would be unable to obtain comparable
                evidence by other reasonably available means. Exculpatory evidence
                is defined as evidence tending to establish a criminal defendant’s
                innocence. A prosecutor’s duty to preserve exculpatory evidence is
                limited to evidence that might be expected to play a significant role in
                the defendant’s defense. Failure to preserve material exculpatory
                evidence violates due process regardless of whether the State acted in
                good or bad faith.
                Evidence is merely potentially useful if no more can be said than that it
                could have been subjected to tests, the results of which might have
                exonerated the defendant. The State’s failure to preserve potentially




       1
         In broad strokes, Seal cites the Sixth and Fourteenth Amendments to the United States Constitution and
       Article 1, Sections 12 and 13 of the Indiana Constitution, asserting that he was denied effective assistance of
       counsel, the right to effective cross-examination, the right to present a defense, and due process.

       Court of Appeals of Indiana |Opinion 48A02-1410-CR-775 | July 15, 2015                              Page 5 of 14
                useful evidence does not constitute a violation of due process rights
                unless the defendant shows bad faith on the part of the police.

       State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010) (citations, quotation

       marks, and brackets omitted).


[11]   With regard to the circumstances of this case, two facts are significant. First,

       there is no constitutional or statutory requirement that the police record

       interviews with victims. 2 Second, the State attempted to record the audio of the

       interviews, and Seal does not contend, nor is there any evidence, that the State

       intentionally sabotaged or destroyed the audio recordings. Therefore, even if

       we assumed that the content of the interviews contained potentially useful

       evidence, there would be no due process violation because Seal cannot show

       bad faith.


[12]   However, Seal contends that it does not matter whether the State acted in good

       faith or bad faith because the interviews contained materially exculpatory

       evidence. According to Seal, the girls had many reasons to fabricate their story

       and his “counsel could have shown the jury the manner in which [the girls]

       were not telling the truth by using DVDs in court; and the jury could have

       judged for itself whether to believe whether the victims’ explanations given at

       trial were contrived or appeared reasonable.” Appellant’s Br. at 12. The

       interviews were summarized in the police reports, and Seal directs to no



       2
         We have held that Article 1, Section 12 of the Indiana Constitution does not require the recording of
       interrogations of the accused in places of detention. Gasper v. State, 833 N.E.2d 1036, 1041 (Ind. Ct. App.
       2005), trans. denied.

       Court of Appeals of Indiana |Opinion 48A02-1410-CR-775 | July 15, 2015                             Page 6 of 14
       statements that tended to establish his innocence. The interviews do not strike

       us as materially exculpatory evidence but rather as impeachment evidence.


[13]   We conclude that Seal’s due process rights were not violated by the State’s

       failure to preserve the audio recordings of the victims’ interviews. To the extent

       that Seal asserts that his rights to effectively cross-examine the witnesses and to

       present a defense were violated, we note again that the interviews were

       summarized, both girls testified, and Seal fails to explain how the summaries

       were inadequate to assist him in cross-examining the girls. Although he sets

       forth numerous facts that he argues were relevant to the girls’ motives to

       fabricate, he was not limited in his scope of cross-examining the girls with

       regard to those facts. In short, we find no federal or state constitutional

       violations in this regard.


           Section 2 - The trial court did not abuse its discretion in
       instructing the jury that time is not an element of the offenses.
[14]   The manner of instructing the jury lies within the sound discretion of the trial

       court, and we will reverse the trial court’s decision whether to give an

       instruction only upon an abuse of that discretion. Gravens v. State, 836 N.E.2d

       490, 493 (Ind. Ct. App. 2005), trans. denied (2006). “‘The purpose of jury

       instruction is to inform the jury of the law applicable to the facts without

       misleading the jury and to enable it to comprehend the case clearly and arrive at

       a just, fair, and correct verdict.’” Fowler v. State, 900 N.E.2d 770, 773 (Ind. Ct.

       App. 2009) (quoting Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001)). In

       evaluating jury instructions on appeal, “this Court looks to whether the

       Court of Appeals of Indiana |Opinion 48A02-1410-CR-775 | July 15, 2015     Page 7 of 14
       tendered instructions correctly state the law, whether there is evidence in the

       record to support giving the instruction, and whether the substance of the

       proffered instruction is covered by other instructions.” Short v. State, 962

       N.E.2d 146, 150 (Ind. Ct. App. 2012).


[15]   Seal challenges the following instruction:

                       Time is not an element of the crime of Child Molesting. If you
               find that the evidence available to the State of Indiana does not permit
               the State to specify the exact date of the offense, and if you find
               beyond a reasonable doubt that the Defendant committed the offenses
               within reasonable proximity to the date alleged, then the State has met
               its burden of proof on the issue of the time of the offense.

                       Although time is not an element of the offenses charged, the
               age of the victims at the time of the offenses charged is an element.

       Appellant’s App. at 51; Tr. at 602.


[16]   Seal appears to concede that the instruction is a correct statement of the law.

       See Baker v. State, 948 N.E.2d 1169, 1174 (Ind. 2011) (“In general, the precise

       time and date of the commission of a child molestation offense is not regarded

       as a material element of the crime.”). He also does not argue that the evidence

       does not support giving the instruction or that the substance of the instruction

       was covered by other instructions. His argument is that the instruction was

       more confusing than helpful and was unnecessary. Specifically, he asserts that

       there is a conflict between “if you find … that the Defendant committed the

       offenses within reasonable proximity to the date alleged, then the State has met

       its burden of proof” and “the age of the victims at the time of the offenses


       Court of Appeals of Indiana |Opinion 48A02-1410-CR-775 | July 15, 2015          Page 8 of 14
       charged is an element.” Appellant’s App. at 51. He contends that by

       instructing the jury that all the State had to prove was that he committed the

       offenses within a reasonable proximity to the dates charged, the jurors might be

       misled into treating the dates as they related to the ages of the girls as

       unimportant.


[17]   Under the facts of this case, we cannot conclude that the jury was confused by

       the instruction. Age is an element of all the offenses, and the instruction

       unequivocally stated so. Based on the statute in effect when Seal committed the

       offenses, for class A felony child molesting, the State was required to prove that

       he performed or submitted to sexual intercourse or deviant sexual conduct with

       a child who was under the age of fourteen. Ind. Code § 35-42-4-3. For class B

       felony sexual misconduct with a minor, the State was required to prove that he

       performed or submitted to sexual intercourse or deviant sexual conduct with a

       child who was at least fourteen but less than sixteen. Ind. Code § 35-42-4-9.

       For class B felony incest, the State was required to prove that he engaged in

       sexual intercourse or deviant sexual conduct with another person who was

       under the age of sixteen, when he knew that the other person was related to him

       biologically as his child. Ind. Code § 35-46-1-3.


[18]   In the charging information, the State did not allege that Seal committed the

       offenses on specific dates. Rather, the State charged Seal with committing the

       offenses within a time range. Appellant’s App. at 66-68. With regard to R.S.,

       the State charged Seal with committing class A felony child molesting between

       January 1, 2007, and November 3, 2010, when she was under fourteen. Id. at

       Court of Appeals of Indiana |Opinion 48A02-1410-CR-775 | July 15, 2015       Page 9 of 14
       66. The State charged him with class B felony sexual misconduct with a minor

       between November 4, 2010, and November 3, 2012, when R.S. was at least

       fourteen but not more than sixteen. Id. R.S.’s age is important and affected the

       felony level of the offenses. However, the evidence showed that Seal regularly

       and frequently engaged in sexual intercourse and deviant sexual conduct with

       R.S. throughout both time periods, well before and well after R.S.’s birthday.

       This is not a situation where a defendant committed a single act which is

       punishable as a different class of felony depending upon whether it occurred

       before or after the victim’s birthday. See Barger v. State, 587 N.E.2d 1304, 1307

       (Ind. 1992) (“The exact date becomes important only in limited circumstances,

       including the case where the victim’s age at the time of the offense falls at or

       near the dividing line between classes of felonies.”).


[19]   As for R.M.S., the charging information alleged that Seal committed child

       molesting and incest between November 3, 2009, and August 31, 2012. R.M.S.

       was under the age of fourteen for the entire time as charged. Her age during

       that time period was not a fact in dispute. Further, as with R.S., the evidence

       showed that Seal committed multiple instances of sexual intercourse and

       deviant sexual conduct.


[20]   In closing argument the State explained the application of the instruction and

       how the time period alleged in the charges was related to the victims’ testimony

       and ages. Tr. at 555, 559-60. Given the charges and the evidence produced at

       trial, we cannot conclude that the instruction confused the jury. Accordingly,

       the trial court did not abuse its discretion in giving the instruction.

       Court of Appeals of Indiana |Opinion 48A02-1410-CR-775 | July 15, 2015    Page 10 of 14
           Section 3 - The continuous crime doctrine does not apply.
[21]   Although Seal concedes that he committed acts that comprise the offenses of

       class A felony child molesting of R.S. and class B felony sexual misconduct

       with R.S., he contends that the continuous crime doctrine applies to his

       convictions and requires that the latter be merged with the former. 3 Both Seal

       and the State assert that the continuous crime doctrine applies when “actions

       which are sufficient in themselves to constitute separate criminal offenses may

       be so compressed in terms of time, place, singleness of purpose, and continuity

       of action as to constitute a single transaction.” Appellant’s Br. at 17 (citing

       Nunn v. State, 695 N.E.2d 124, 125 (Ind. Ct. App. 1998)); Appellee’s Br. at 20

       (citing a case that relied on Nunn). After this appeal was fully briefed, our

       supreme court handed down Hines v. State, 30 N.E.3d 1216 (Ind. 2015), in

       which it disapproved of Nunn’s phrasing of the doctrine, stating that it “too

       broadly paraphrased precedent.” Id. at 1220. Our supreme court stated that the

       “continuous crime doctrine applies only where a defendant has been charged

       multiple times with the same ‘continuous’ offense.” Id. Specifically, the Hines

       court stated,

               The continuous crime doctrine is a rule of statutory construction and
               common law limited to situations where a defendant has been charged
               multiple times with the same offense. The continuous crime doctrine
               does not seek to reconcile the double jeopardy implications of two



       3
         We observe that the continuous crime doctrine is distinct from the concept of an “episode of criminal
       conduct,” which applies under Indiana Code Section 35-50-1-2 to limit the aggregate term of consecutive
       sentences when the convictions are not for crimes of violence and the “offenses or a connected series of
       offenses … are closely related in time, place, and circumstance.”

       Court of Appeals of Indiana |Opinion 48A02-1410-CR-775 | July 15, 2015                         Page 11 of 14
               distinct chargeable crimes; rather, it defines those instances where a
               defendant’s conduct amounts only to a single chargeable crime. The
               Legislature, not this Court, defines when a criminal offense is
               “continuous,” e.g. not terminated by a single act or fact but subsisting
               for a definite period and covering successive, similar occurrences. We
               have applied the continuous crime doctrine in the context of felony
               murder and robbery, confinement, and kidnapping; situations where
               the crime charged, as defined by statute, was “continuous.” For
               example, in Eddy v. State, [496 N.E.2d 24, 28 (Ind. 1986),] we
               interpreted the statutory requirement that a homicide-robbery
               transaction be continuous to encompass a transaction where all the
               statutory elements of the robbery had been completed before the
               commission of the homicide.

       Id. at 1219-20 (footnotes, citations, and quotation marks omitted).


[22]   The Hines court quoted at length from Eddy. In Eddy, the court interpreted the

       phrase “while committing” as it was used in the statute defining felony murder.

       496 N.E.2d at 27-28. At that time the statute provided, “A person who “kills

       another human being while committing or attempting to commit [certain listed

       felonies] commits murder, a felony.” Ind. Code § 35-42-1-1(2) (emphasis

       added). The Eddy court rejected the defendant’s contention that the offense of

       felony murder required that the homicide occur before all the statutory elements

       of robbery were complete. 496 N.E.2d at 27-28. The Eddy court explained, “A

       homicide and robbery are deemed to be one continuous transaction when they

       are closely connected in time, place, and continuity of action.” Id. Thus, the

       continuous crime doctrine was useful in determining whether the defendant’s

       conduct constituted the single offense of felony murder by focusing on the scope

       of the phrase “while committing.”



       Court of Appeals of Indiana |Opinion 48A02-1410-CR-775 | July 15, 2015        Page 12 of 14
[23]   In contrast to Eddy, in which homicide and robbery were statutorily defined as

       one crime if a person killed another human being while committing robbery,

       the crimes in Hines were class C felony criminal confinement and class D felony

       battery. The Hines court noted that the defendant “was not convicted of

       multiple charges of criminal confinement, nor multiple charges of battery. Nor

       is Battery a crime for which all of the elements necessary to impose criminal

       liability are also elements found in Criminal Confinement, or vice versa.” 30

       N.E.3d at 1221. The Hines court concluded that criminal confinement and

       battery “are two distinct chargeable crimes to which the continuous crime

       doctrine does not apply.” Id.


[24]   Here, the evidence showed that Seal sexually molested R.S. multiple times both

       before and after she turned fourteen. The molestation of R.S. before she turned

       fourteen is one chargeable crime, and the molestation of R.S. after she turned

       fourteen is a different chargeable crime. See Ind. Code § 35-42-4-3; 35-42-4-9.

       Seal was not charged multiple times with the same offense. Under Hines, the

       continuous crime doctrine does not apply.


[25]   The extent to which Hines imposes new limitations upon the application of the

       continuous crime doctrine has yet to be discerned. Regardless of whether Hines

       imposes a more restrictive use of the doctrine or not, we note that even under

       the broader application of the doctrine as articulated in Nunn, the doctrine

       would not apply under the facts of this case. Seal’s multiple acts of molestation

       committed over a five-year period cannot plausibly be considered “so



       Court of Appeals of Indiana |Opinion 48A02-1410-CR-775 | July 15, 2015   Page 13 of 14
       compressed in terms of time, place, singleness of purpose, and continuity of

       action as to constitute a single transaction.” Nunn, 695 N.E.2d at 125.


[26]   Based on the foregoing, we affirm Seal’s convictions.


[27]   Affirmed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana |Opinion 48A02-1410-CR-775 | July 15, 2015   Page 14 of 14
