MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Oct 24 2017, 10:39 am
regarded as precedent or cited before any
                                                                              CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Yvette M. LaPlante                                       Curtis T. Hill, Jr.
Keating & LaPlante, LLP                                  Attorney General of Indiana
Evansville, Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Morley,                                          October 24, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         87A01-1704-CR-954
        v.                                               Appeal from the Warrick Circuit
                                                         Court
State of Indiana,                                        The Honorable Greg A. Granger,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         87C01-1503-F4-92



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 87A01-1704-CR-954 | October 24, 2017            Page 1 of 7
                                           Statement of the Case
[1]   Michael Morley appeals his conviction for child molesting, as a Level 4 felony,

      following a jury trial. Morley presents a single issue for our review, which we

      restate as the following two issues:


                1.       Whether the trial court abused its discretion when it
                         permitted testimony that he alleges violated Indiana Rule
                         of Evidence 404(b).

                2.       Whether the trial court properly admonished the jury
                         when it admitted that testimony.


[2]   We affirm.


                                     Facts and Procedural History
[3]   On October 12, 2014, Morley, his wife (“Amanda”), his daughter I.M., and

      Amanda’s children J.C., L.I., G.C., and S.C. went to the home of Amanda’s

      friend Sarah Meeks for a party, which included a sleepover. J.C.’s best friend,

      then-eleven-year-old C.B., joined them. Meeks’ husband and two children, as

      well as two other adults, were also at the party. During the evening, the adults

      drank alcohol. In particular, Morley drank several beers and some moonshine.


[4]   At bedtime, C.B., J.C., S.C., L.I., and I.M., all girls, got into a fifteen-person

      tent to sleep for the night.1 At some point after the girls got settled into their




      1
          The male children attending the party slept inside the Meeks’ house.


      Court of Appeals of Indiana | Memorandum Decision 87A01-1704-CR-954 | October 24, 2017   Page 2 of 7
      tent and had been sleeping, Morley went into the girls’ tent. L.I. told Morley to

      leave the tent, and Morley told L.I. to “shush.” Tr. Vol. 2 at 76. Morley then

      lay down on the floor of the tent with his head near C.B.’s head and his feet

      near S.C.’s head. L.I. heard some “rustling around.” Id. at 77. C.B. awoke

      and found Morley with his hand inside her bra touching her breasts. Morley

      then put his hand inside C.B.’s underwear, touched her near her vagina, and

      moved his hand “like in circles.” Id. at 56. C.B. got up, “got outta [sic] the tent

      and went inside” the Meeks’ house. Id. C.B. went into a bathroom “and just

      sat there for a little bit.” Id. C.B. then went outside and asked Meeks 2 whether

      she could sleep inside the house. Meeks told C.B. that she was fine with that,

      and she told C.B. where she could find a blanket inside.


[5]   In the meantime, Morley had moved over to the other end of the tent where

      J.C. was sleeping, and he lay down behind her. Morley placed his hand near

      J.C.’s vagina, over her pajamas. After about a minute, J.C. pushed his hand

      away. Morley then got up and left the girls’ tent.


[6]   L.I. had noticed that C.B. was “frantic” when she had gotten up and left the

      tent, so L.I. went inside the house to see whether C.B. was alright. Id. at 77.

      L.I. found C.B. crying in the living room, and L.I. went back outside to get

      Meeks because L.I. “didn’t know how to handle the situation.” Id. at 78.

      When L.I. returned to the living room with Meeks, C.B. was still crying and




      2
          Meeks was sitting by a campfire at the time.


      Court of Appeals of Indiana | Memorandum Decision 87A01-1704-CR-954 | October 24, 2017   Page 3 of 7
      told Meeks what had happened. Meeks then went back outside and told

      Amanda what had happened. No one called the police that night, and no one

      called C.B.’s mother. At some point thereafter, C.B. told her mother what

      Morley had done, and C.B.’s mother contacted law enforcement.


[7]   The State charged Morley with child molesting, as a Level 4 felony, for the

      touching of C.B. During the jury trial, over Morley’s objection, J.C. testified

      that, while she was in the tent with C.B. the night of the party, Morley had

      touched J.C. near her vagina. The trial court admonished the jury that it could

      consider J.C.’s testimony only to prove “motive, or opportunity, something like

      that[,]” but not as evidence of Morley’s general character. Id. at 130. The jury

      found Morley guilty as charged. The trial court entered judgment and sentence

      accordingly. This appeal ensued.


                                     Discussion and Decision
                                    Issue One: Evidence Rule 404(b)

[8]   Morley contends that the trial court abused its discretion when it permitted J.C.

      to testify that he had touched her near her vagina around the same that he

      allegedly had molested C.B. The trial court has “inherent discretionary power

      on the admission of evidence, and its decisions are reviewed only for an abuse

      of that discretion.” McManus v. State, 814 N.E.2d 253, 264 (Ind. 2004) (internal

      quotation marks omitted). An abuse of discretion occurs when the trial court’s

      judgment “is clearly against the logic and effect of the facts and circumstances




      Court of Appeals of Indiana | Memorandum Decision 87A01-1704-CR-954 | October 24, 2017   Page 4 of 7
       and the error affects a party’s substantial rights.” Guilmette v. State, 14 N.E.3d

       38, 40 (Ind. 2014).


[9]    Morley maintains that J.C.’s testimony violated Indiana Evidence Rule

       404(b)(1), which provides that “[e]vidence of a crime, wrong, or other act is not

       admissible to prove a person’s character in order to show that on a particular

       occasion the person acted in accordance with the character.” Morley

       acknowledges that, under Rule 404(b)(2), evidence of other wrongs or criminal

       acts may be admissible to prove motive, opportunity, intent, preparation, plan,

       knowledge, identity, absence of mistake, or lack of accident. But Morley asserts

       that none of those exceptions apply here. We disagree and hold that J.C.’s

       testimony was admissible under the “plan” exception.


[10]   In Turner v. State, 682 N.E.2d 491, 496 n.5 (Ind. 1997), our supreme court stated

       that


               [p]rior bad act evidence to prove a plan is only admissible in
               certain circumstances.

                        The prior offenses “must tend to establish a
                        preconceived plan by which the charged crime was
                        committed. The crimes must, therefore, be so related
                        in character, time, and place of commission as to
                        establish some plan which embraced both the prior
                        and subsequent criminal activity and charged crime.”

               Hardin[ v. State], 611 N.E.2d [123,] 130[ (Ind. 1993)].




       Court of Appeals of Indiana | Memorandum Decision 87A01-1704-CR-954 | October 24, 2017   Page 5 of 7
[11]   Here, at trial, Morley admitted to having gone into the girls’ tent while they

       were sleeping, but he claimed that he did so merely to make sure that J.C. was

       not having a night terror, which she was known to experience on occasion. But

       J.C. testified that Morley touched her near her vagina, and that act, which took

       place in the same tent, immediately followed the molestation of C.B.,3 and was

       of the same character as Morley’s molestation of C.B., tended to establish a

       preconceived plan for committing the charged crime.4 See id.; c.f. Stettler v. State,

       70 N.E.3d 874, 880 (Ind. Ct. App. 2017) (holding evidence of prior bad acts did

       not fall under plan exception where there was no evidence that the prior acts

       were in any way committed in conjunction with the charged offense), trans.

       denied. The trial court did not abuse its discretion when it admitted J.C.’s

       testimony.5


                                              Issue Two: Admonishment

[12]   Morley also contends that the trial court’s admonishment to the jury “was too

       open-ended to effectively prevent the jury from making the forbidden inference




       3
        L.I. testified that, as soon as Morley got up from his position near C.B., he went over to the area of the tent
       where J.C. was sleeping.
       4
         The trial court found that, “because it[ was] the same night, same tent, . . . it’s relevant . . . and . . . the
       relevancy outweighs whatever prejudicial value there is.” Tr. Vol. 2 at 117.
       5
         To the extent Morley appears to argue that the evidence was inadmissible under Evidence Rule 403, he
       does not support that contention with cogent argument. Rather, his argument in support of that contention
       goes to whether the alleged error was harmless. Because we hold that the trial court did not err, we need not
       address Morley’s contention that “the error is not harmless.” Appellant’s Br. at 14.

       Court of Appeals of Indiana | Memorandum Decision 87A01-1704-CR-954 | October 24, 2017                     Page 6 of 7
       or to prevent prejudice.” Appellant’s Br. at 16. Following J.C.’s testimony, the

       trial court admonished the jury as follows:


               Alright, let me, uh, at this point then, uh, admonish the jury.
               Uh, you may not use the testimony of this Witness, uh,
               concerning the actions that she described of Mr. Morley in
               touching her as evidence of his general character. You can only
               use it to . . . prove, uh, motive, uh, or opportunity, something like
               that, okay? Just don’t consider it for his general character. Go ahead.


       Tr. Vol. 2 at 130 (emphases added). Morley maintains that, “by using the

       phrase ‘something like that[,]’ the court has left the jury, untrained in the law,

       to fill in the law for themselves.” Appellant’s Br. at 16.


[13]   But Morley did not object to the admonishment or otherwise ask the trial court

       to clarify it. As our Supreme Court has stated, “[n]othing is preserved on

       appeal where a defendant fails to object to a limiting instruction.” Stahl v. State,

       616 N.E.2d 9, 13, (Ind. 1993). Morley has waived this issue for our review.


[14]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 87A01-1704-CR-954 | October 24, 2017   Page 7 of 7
