MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jun 10 2020, 10:45 am

court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Anthony S. Churchward                                    Josiah Swinney
Deputy Public Defender                                   Deputy Attorney General
Anthony S. Churchward, P.C.                              Indianapolis, Indiana
Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Rian N. North,                                           June 10, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2698
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         02D05-1809-FA-10



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2698 | June 10, 2020                   Page 1 of 9
[1]   Rian North appeals his convictions for three counts of Child Molesting1—two

      as Class B felonies and one as a Class C felony. North makes the following

      arguments: (1) his right to a speedy trial under Criminal Rule 4(B) was violated;

      (2) the trial court erroneously refused to admit certain evidence; and (3) the

      sentence is inappropriate in light of the nature of the offenses and his character.

      We affirm.


                                                     Facts
[2]   In 2012, M.S. was eight years old and lived with her mother, stepfather (North),

      and siblings. One day in 2012, North called M.S. up to the attic and got on top

      of her. North removed her pants and underwear. M.S. watched him place an

      “orange condom on his penis” before she closed her eyes. Tr. Vol. II p. 44. He

      penetrated her vagina with his penis, causing M.S. to have the “terrible feeling”

      of “not even being able to fight for myself” as he raped her. Id. M.S. later told

      her mother what had happened, and her mother told her not to tell anyone.

      North remained in the home. M.S.’s mother and North both began physically

      abusing her because she had disclosed what had happened. On one occasion,

      North made her pull down her underwear and “whoop[ed]” her bare buttocks

      with a belt. Id. at 47.


[3]   In 2014, when M.S. was ten years old, North was home with M.S. while her

      mother was at work. He pulled his penis out of his pants, telling her, “this is




      1
          Ind. Code § 35-42-4-3.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2698 | June 10, 2020   Page 2 of 9
      what you get for telling your mom.” Id. at 48. He inserted his penis into her

      mouth until he ejaculated. M.S. was able to later describe in detail what the

      experience was like.


[4]   At some point in her early teenage years, M.S. began smoking marijuana and

      lived in multiple shelters. She attempted suicide in 2017 and later disclosed the

      molestations to a probation officer in 2018. The probation officer notified the

      Department of Child Services and law enforcement.


[5]   On September 25, 2018, the State charged North with three counts of child

      molesting. On October 10, 2018, North was appointed counsel and requested a

      speedy trial. The trial court set a trial date of December 12, 2018; on December

      12, the trial court entered a finding that the docket was congested and reset

      North’s trial to January 24, 2019, over North’s objection. On January 3, 2019,

      North filed a motion to continue through his counsel; the trial court reset the

      trial to June 12, 2019. On May 20, 2019, North filed another motion to

      continue through his counsel; the trial court reset the trial to September 4, 2019.

      On August 26, 2019, North filed another motion to continue.2 The State

      objected, and the trial court denied the motion.


[6]   At North’s September 4, 2019, jury trial, forensic interviewer Lorrie Freiburger

      testified that M.S. had described “sensory details,” which “are details about an




      2
       North had been released on bond on July 9, 2019, and requested more time because he was better able to
      access social media and investigate his defense upon his release.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2698 | June 10, 2020                  Page 3 of 9
      event, in this case sexual, that somebody would have no knowledge of unless

      they had occurred to them.” Id. at 130. She explained that examples of sensory

      details could include the color of a condom; the taste, texture, and color of

      bodily fluid; physical body positions “that a child wouldn’t know unless they

      were physically in those positions”; and the placement of hands during sexual

      activities. Id. During cross-examination, North’s counsel asked Freiburger

      whether, “as a fourteen (14) year old you can’t say if there was any other place

      she could’ve gained this knowledge?” Id. at 132.


[7]   The State objected, arguing outside the presence of the jury that this question

      sought to elicit testimony that would violate Evidence Rule 412, which bars

      evidence about a victim’s sexual history. The trial court sustained the

      objection, observing that the question implied that M.S. would know these

      details because of events in her life that would be inadmissible under Evidence

      Rule 412. North’s counsel explained that he planned to argue that she could

      have learned the sensory details of the encounters with North from “the

      internet, TV, any sorts of friends[.]” Id. at 133. The trial court stated, “Well

      you can certainly make that argument, but that’s not where you were going

      with that.” Id. North responded, “Okay. I’m not going any further

      obviously.” Id. In closing argument, North’s counsel argued that the sensory

      details M.S. had described could have come from another source because a

      fourteen-year-old could have watched television, accessed the internet, or

      attended a sexual education course in school. Ultimately, the jury found North

      guilty as charged.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2698 | June 10, 2020   Page 4 of 9
[8]    On October 25, 2019, the trial court imposed an aggregate sentence of thirty-six

       years—consecutive terms of fifteen years for each of the two Class B felonies

       and six years for the Class C felony. North now appeals.


                                    Discussion and Decision
                                             I. Speedy Trial
[9]    First, North argues that because his trial occurred outside of the seventy-day

       speedy trial window, his right to a Criminal Rule 4 speedy trial was violated

       and we should reverse.


[10]   Criminal Rule 4(B)(1) provides, in pertinent part, as follows:


               If any defendant held in jail on an indictment or an affidavit shall
               move for an early trial, he shall be discharged if not brought to
               trial within seventy (70) calendar days from the date of such
               motion, except where a continuance within said period is had on
               his motion, or the delay is otherwise caused by his act, or where
               there was not sufficient time to try him during such seventy (70)
               calendar days because of the congestion of the court calendar.


       See also Logan v. State, 16 N.E.3d 953, 958 (Ind. 2014) (noting that Criminal

       Rule 4 challenges are separate and distinct from review of claimed violations of

       constitutional speedy trial rights).


[11]   Failure to move for discharge prior to trial constitutes a waiver of that right to

       discharge. Buza v. State, 529 N.E.2d 334, 336-37 (Ind. 1998). Indeed, waiver

       results even when the defendant makes a general objection to a trial date set

       beyond the seventy-day limit. Sholar v. State, 626 N.E.2d 547, 549 (Ind. Ct.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2698 | June 10, 2020   Page 5 of 9
       App. 1993). Here, North did not move for discharge. Consequently, he has

       waived this argument.


[12]   Waiver notwithstanding, North’s rights under Criminal Rule 4(B) were not

       violated because all the delays were caused by congestion or North’s requests

       for continuances.3 Furthermore, North was released from custody before his

       trial. See Driver v. State, 725 N.E.2d 465, 470 (Ind. Ct. App. 2000) (holding that

       the requirement for a speedy trial to occur within seventy days is extinguished

       when a defendant is released on bond). Therefore, his speedy trial rights were

       not violated and he was not entitled to be discharged.


                                    II. Admission of Evidence
[13]   Next, North argues that the trial court erred by refusing to permit him to

       question the forensic interviewer about other ways in which M.S. might have

       acquired the knowledge of the sensory details of her encounters with North.

       The admission of evidence is a matter within the trial court’s discretion. E.g.,

       Pribie v. State, 46 N.E.3d 1241, 1246 (Ind. Ct. App. 2015). We will reverse only

       where the trial court’s decision is clearly against the logic and effect of the facts

       and circumstances before it. Id.




       3
         North argues that he did not personally request the continuances. But acts of counsel are viewed as acts of
       the defendant for Criminal Rule 4 purposes. Underwood v. State, 722 N.E.2d 828, 832 (Ind. 2000). In any
       case, because North was released from custody before trial, his protections under Criminal Rule 4(B) were
       extinguished.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2698 | June 10, 2020                       Page 6 of 9
[14]   Evidence Rule 412(a) provides that “evidence offered to prove that a victim . . .

       engaged in other sexual behavior” is inadmissible in a criminal proceeding

       involving alleged sexual misconduct.4 Here, the trial court sustained the State’s

       objection to the following question North’s counsel asked of the forensic

       interviewer: “But as a fourteen (14) year old you can’t say if there was any other

       place she could’ve gained this knowledge [of sensory details]?” Tr. Vol. II p.

       132-33. To the extent that this question would have elicited testimony

       regarding M.S.’s sexual history, the trial court did not err by refusing to permit

       it, as it is squarely covered by Evidence Rule 412(a).


[15]   To the extent that North argues that he intended to elicit testimony that M.S.

       may have known about the sensory details through television, the internet, or

       social media, the trial court did not prohibit this argument or even prevent

       counsel from asking questions along these lines. Id. at 133. And in fact, North

       made this precise argument as part of his closing. Consequently, he can show

       no prejudice as a result of the trial court’s ruling.


[16]   In sum, the trial court did not err by sustaining the State’s objection to the

       question, North’s counsel did not inquire further of the witness along

       permissible lines, and in any event, counsel was able to make the argument he

       planned to make as part of closing. Therefore, North is not entitled to reversal

       on this basis.




       4
           There are certain exceptions to this rule that are not applicable in this case. Evid. R. 412(b)(1).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2698 | June 10, 2020                             Page 7 of 9
                                        III. Appropriateness
[17]   Finally, North argues that the sentence imposed by the trial court is

       inappropriate in light of the nature of the offenses and his character pursuant to

       Indiana Appellate Rule 7(B). We must “conduct [this] review with substantial

       deference and give ‘due consideration’ to the trial court’s decision—since the

       ‘principal role of [our] review is to attempt to leaven the outliers,’ and not to

       achieve a perceived ‘correct’ sentence.” Knapp v. State, 9 N.E.3d 1274, 1292

       (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013))

       (internal citations omitted).


[18]   North was convicted of two Class B felonies and one Class C felony. For each

       Class B felony, he faced a term of six to twenty years, with an advisory term of

       ten years. Ind. Code § 35-50-2-5(a). For each Class B felony conviction, the

       trial court imposed a sentence of fifteen years—above the advisory but less than

       the maximum. For the Class C felony, he faced a term of two to eight years,

       with an advisory term of four years. I.C. § 35-50-2-6(a). The trial court

       imposed a term of six years—above the advisory but less than the maximum.

       Had the trial court imposed consecutive maximum terms, North would have

       received an aggregate forty-eight-year term. Instead, the trial court imposed

       consecutive terms of fifteen, fifteen, and six years, totaling thirty-six years

       imprisonment.


[19]   With respect to the nature of the offenses, North repeatedly molested his young

       stepdaughter, thereby abusing his position of trust and authority. He also


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2698 | June 10, 2020   Page 8 of 9
       retaliated against her for telling her mother what had happened, whipping her

       with a belt and forcing her to fellate him as punishment. These acts, causing

       her to live in fear for years, went above and beyond the elements of the offenses.


[20]   As to his character, while he had no criminal history prior to molesting M.S.,

       he was convicted of Level 6 felony domestic battery after he molested her. 5

       Additionally, his probation was revoked in that case. We also find that his acts

       of retaliation against M.S. further evidence his poor character.


[21]   It may well be that this case is not the worst of the worst. But the trial court did

       not impose consecutive maximum terms. Instead, the trial court appropriately

       acknowledged the heinousness of these crimes, including their severe and long-

       lasting effects on M.S., and North’s character by imposing sentences that

       exceeded the advisory terms but fell short of the maximum. Therefore, we find

       that the aggregate thirty-six-year sentence is not inappropriate in light of the

       nature of the offenses and North’s character.


[22]   The judgment of the trial court is affirmed.


       Bradford, C.J., and Pyle, J., concur.




       5
         We note, however, that North was only around twenty years old when he began molesting M.S., meaning
       that he was not long into adulthood when he began committing some of the most serious offenses there are
       and that he had not yet had many years to amass a criminal record.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2698 | June 10, 2020                  Page 9 of 9
