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:

HUGH N. TAYLOR                                      GREGORY F. ZOELLER
Hugh N. Taylor, P.C.                                Attorney General of Indiana
Auburn, Indiana
                                                    JODI KATHRYN STEIN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana

                                                                              FILED
                                                                           Dec 27 2012, 9:43 am


                                                                                    CLERK
                               IN THE                                             of the supreme court,
                                                                                  court of appeals and
                                                                                         tax court


                     COURT OF APPEALS OF INDIANA

MARK ALLEN PRATT,                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 76A04-1205-CR-268
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE STEUBEN SUPERIOR COURT
                           The Honorable William C. Fee, Judge
                             Cause No. 76D01-0709-FC-1054



                                        December 27, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       A jury convicted Mark Allen Pratt of class C felony child molesting. On appeal, Pratt

challenges the trial court’s denial of his motion for discharge pursuant to Indiana Criminal

Rule 4(C). He also challenges the trial court’s exclusion of evidence that his victim accused

Pratt’s brother of molesting her. Finding the first argument waived and the second without

merit, we affirm.

                              Facts and Procedural History

       On September 20, 2007, Pratt was arrested and charged with four counts of class C

felony child molesting. The charges were based on acts Pratt allegedly committed with his

live-in girlfriend’s daughter, H.C., who was born in June 2001. The State later added three

counts of class A felony child molesting and then dismissed all charges except for one count

of class C felony child molesting. A jury trial was held on February 10, 2012. H.C. testified

that in 2007 Pratt took off her nightgown and had her masturbate him. The jury found Pratt

guilty as charged. Pratt filed a motion to correct error, which the trial court denied. This

appeal ensued.

                                 Discussion and Decision

                            I. Denial of Motion for Discharge

       After Pratt was arrested and charged in September 2007, both sides requested and

received numerous continuances. On January 31, 2011, Pratt filed a motion for discharge

pursuant to Criminal Rule 4(C), which reads as follows:

       No person shall be held on recognizance or otherwise to answer a criminal
       charge for a period in aggregate embracing more than one year from the date

                                             2
        the criminal charge against such defendant is filed, or from the date of his
        arrest on such charge, whichever is later; except where a continuance was had
        on his motion, or the delay was caused by his act, or where there was not
        sufficient time to try him during such period because of congestion of the court
        calendar; provided, however, that in the last-mentioned circumstance, the
        prosecuting attorney shall file a timely motion for continuance as under
        subdivision (A) of this rule. Provided further, that a trial court may take note
        of congestion or an emergency without the necessity of a motion, and upon so
        finding may order a continuance. Any continuance granted due to a congested
        calendar or emergency shall be reduced to an order, which order shall also set
        the case for trial within a reasonable time. Any defendant so held shall, on
        motion, be discharged.

The trial court heard and denied the motion on February 3, 2011. On February 9, 2011, Pratt

signed a written waiver of his “right to be brought to trial within one (1) year” under

Criminal Rule 4(C). Appellant’s App. at 334.

        On appeal, Pratt contends that the trial court erred in denying his motion for discharge,

claiming that “[t]he total time that [he] awaited trial, not chargeable to him was six hundred

eight (608) days, well beyond the [Criminal Rule 4(C)] limit.” Appellant’s Br. at 10. The

State contends that Pratt has waived this issue in two respects: first, by signing the

aforementioned waiver, which is not mentioned in the argument section of Pratt’s brief; and

second, by failing to provide us with a transcript of the hearing on his motion for discharge.

Pratt did not file a reply brief or otherwise respond to the State’s waiver claims, so we review

them for prima facie error.1 Buchanan v. State, 956 N.E.2d 124, 127 (Ind. Ct. App. 2011).




        1
          Likewise, Pratt did not respond to the State’s extensively documented argument that “the record
shows that only 169 days were attributable to the [Criminal Rule 4(C)] period as of [Pratt’s] motion for
discharge.” Appellee’s Br. at 12.

                                                   3
“Prima facie means at first sight, on first appearance, or on the face of it.” Id. (citation and

quotation marks omitted).

       We have said that a defendant may waive his right to a speedy trial. Bailey v. State,

397 N.E.2d 1024, 1025 (Ind. Ct. App. 1979), but typically that is done by acquiescing to a

trial date outside the one-year deadline. See, e.g., Alford v. State, 521 N.E.2d 1353, 1354

(Ind. Ct. App. 1988). The State notes that a defendant may waive his right to a jury trial via a

written waiver and asserts that Pratt’s waiver “is sufficient for this Court to find that [he]

waived any right to be tried within one year under Rule 4(C).” Appellee’s Br. at 8 (citing

Hogan v. State, 966 N.E.2d 738, 748 (Ind. Ct. App. 2012), trans. denied). Absent any

indication that the waiver was not knowing, voluntary, or intelligent or was otherwise

defective, we conclude that the State has established waiver on this ground. We reach the

same conclusion regarding the State’s second waiver claim. See Davis v. State, 935 N.E.2d

1215, 1217 (Ind. Ct. App. 2010) (finding appellant’s argument regarding waiver of right to

jury trial waived where he failed to provide transcript of proceeding: “It is a defendant’s

duty to present an adequate record clearly showing the alleged error, and where he fails to do

so, the issue is waived.”), trans. denied (2011). To the extent Pratt advances a Sixth

Amendment speedy-trial argument in conjunction with his Criminal Rule 4(C) argument, it is

also waived because he failed to raise it below. See Stewart v. State, 945 N.E.2d 1277, 1288

(Ind. Ct. App. 2011) (“Arguments raised for the first time on appeal are waived.”), trans.

denied.




                                               4
                             II. Exclusion of Molestation Accusation

        Before trial, Pratt announced his intention to offer evidence that H.C. had accused

Pratt’s brother of molesting her in 2009 and that an administrative law judge (“ALJ”) with

the Department of Child Services had found that accusation to be unsubstantiated. The State

filed two pretrial motions in limine to exclude this evidence, and the trial court held a hearing

on each motion and granted them both. During trial, Pratt made an offer of proof regarding

this evidence, which the trial court excluded.

        On appeal, Pratt contends that the trial court erred in excluding this evidence. Our

opinion in State v. Luna sets the stage for our resolution of this issue:

               The admission of evidence relating to a victim’s past sexual conduct is
        governed by Indiana Evidence Rule 412, which is commonly referred to as the
        Rape Shield Rule. Rule 412 provides that, with very few exceptions, in a
        prosecution for a sex crime, evidence of the past sexual conduct of a victim or
        witness may not be admitted into evidence. Certain evidence may be admitted,
        however, provided that it falls within one of Rule 412’s exceptions, none of
        which are relevant here.[2] However, in addition to the Rule’s enumerated
        exceptions, a common law exception has survived the 1994 adoption of the
        Indiana Rules of Evidence, and this exception provides that evidence of a prior
        accusation of rape is admissible if: (1) the victim has admitted that his or her
        prior accusation of rape is false; or (2) the victim’s prior accusation is
        demonstrably false. Prior accusations are demonstrably false where the victim
        has admitted the falsity of the charges or they have been disproved. The

        2
            Indiana Evidence Rule 412(a) reads,

                In a prosecution for a sex crime, evidence of the past sexual conduct of a victim or
        witness may not be admitted, except:
                (1) evidence of the victim’s or of a witness’s past sexual conduct with the defendant;
                (2) evidence which shows that some person other than the defendant committed the
                act upon which the prosecution is founded;
                (3) evidence that the victim’s pregnancy at the time of trial was not caused by the
                defendant; or
                (4) evidence of conviction for a crime to impeach under Rule 609.

As in Luna, none of these exceptions are relevant here.

                                                      5
        common law exception to prior false accusations of rape has been interpreted
        to apply not only to rape, but also to prior false allegations of sex crimes.

932 N.E.2d 210, 212-13 (Ind. Ct. App. 2010) (citations and footnotes omitted). In ruling on

Pratt’s offer to prove, the trial court noted that H.C. had not recanted her accusation against

Pratt’s brother and determined that her accusation had not been shown to be demonstrably

false. We review this determination under a clearly erroneous standard. Candler v. State,

837 N.E.2d 1100, 1104 (Ind. Ct. App. 2005).

        Pratt quotes the following excerpt from the ALJ’s decision in support of his argument

that H.C.’s accusation is demonstrably false:

        This ALJ cannot find [H.C.’s] September 2009 report of sexual abuse at the
        hands of [Pratt’s brother] is supported by the preponderance of the evidence
        for two reasons. First, the manner of questioning [by a Department of Child
        Services family case manager] during the initial report in September 2009 is
        troublesome and this ALJ agrees with [Indiana State Police Detective Kevin
        Smith], who has 22 years of law enforcement experience, that the information
        is unreliable. Second, [H.C.’s] report of sexual abuse is inconsistent.

        [This] ALJ reviewed the DVD of the forensic interview of [H.C.] and was
        concerned by the manner of questioning of the interviewer.… The ALJ found
        the interview as concerning as Detective Smith testified to in his deposition.

Appellant’s Br. at 18 (quoting Appellant’s App. at 263).3

        We agree with the State that “[a]t most, the ALJ’s determination could create an

inference that H.C.’s accusation was false, but such an inference does not show that the

accusation was disproved, which is required for the common law exception to apply.”


        3
           The ALJ’s decision was offered into evidence at one of the motion in limine hearings and not in
support of Pratt’s offer to prove at trial. The State contends that Pratt has waived this issue because he failed to
provide us with the transcripts of those hearings. We note, however, that “[a] ruling on a motion in limine does
not preserve an error for appellate review,” Wise v. State, 719 N.E.2d 1192, 1197 (Ind. 1999), and that Pratt
preserved his claim of error by making an offer of proof at trial. Ind. Evidence Rule 103.

                                                         6
Appellee’s Br. at 16; Luna, 932 N.E.2d at 212-13. As such, we cannot say that the trial

court’s exclusion of evidence regarding H.C.’s accusation was clearly erroneous. Moreover,

Pratt has failed to allege, let alone establish, that any error would require the reversal of his

conviction. Cf. Ind. Appellate Rule 61 (“No error in either the admission or the exclusion of

evidence and no error or defect in any ruling or order in anything done or omitted by the

court or by any of the parties is ground for granting relief under a motion to correct errors or

for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or

order or for reversal on appeal, unless refusal to take such action appears to the court

inconsistent with substantial justice. The court at every stage of the proceeding must

disregard any error or defect in the proceeding which does not affect the substantial rights of

the parties.”). Therefore, we affirm.

       Affirmed.

KIRSCH, J., and MATHIAS, J., concur.




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