MEMORANDUM DECISION
                                                                      Jun 03 2015, 10:56 am
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
Frederick Vaiana                                          Gregory F. Zoeller
Voyles Zahn & Paul                                        Attorney General of Indiana
Indianapolis, Indiana
                                                          Jodi Kathryn Stein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Ronald C. Weyland,                                       June 3, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A04-1409-CR-446
        v.                                               Appeal from the Madison Circuit
                                                         Court
                                                         The Honorable Dennis D. Carroll,
State of Indiana,                                        Judge
Appellee-Plaintiff                                       Cause No. 48C06-1306-FA-1227




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015            Page 1 of 13
                                               Case Summary
[1]   After a jury trial, Ronald C. Weyland (“Weyland”) was convicted of Attempted

      Child Molesting, as a Class A felony;1 Child Molesting, as a Class A felony;2

      and Child Molesting, as a Class C felony.3 He now appeals.


[2]   We affirm in part, reverse in part, and remand.



                                                      Issues
[3]   Weyland raises two issues for our review, which we restate as:

             1. Whether there was sufficient evidence to sustain his convictions; and
             2. Whether the trial court abused its discretion when it limited the scope of
                his cross-examination of a witness.


                                    Facts and Procedural History
[4]   Weyland had a daughter, E.K., with Amy K. (“Amy”). E.K. was born on

      January 20, 2008. Weyland and Amy did not live together, and Amy had

      primary custody of E.K. Weyland, who lived in Pendleton, and Amy had

      arranged for E.K. to spend two days each week with Weyland. Weyland also

      provided childcare for E.K. on nights when Amy needed to work late.




      1
          Ind. Code §§ 35-42-4-3(a)(1) & 35-41-5-1.
      2
          I.C. § 35-42-4-3(a)(1).
      3
          I.C. § 35-42-4-3(b).


      Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015   Page 2 of 13
[5]   E.K. had a room in Weyland’s home, where Weyland lived with his mother,

      Ivana, and his older daughter and E.K.’s half-sister, Makayla. Sometimes E.K.

      slept in her own bed; sometimes she slept with Weyland in his bed.


[6]   Weyland, Ivana, and Makayla each helped care for E.K., including bathing

      E.K. and helping E.K. shower. On a number of occasions, Weyland would

      shower naked with E.K., and would wash E.K.’s genitals. E.K. expressed

      reluctance to shower when Ivana or Makayla showered her; when Weyland

      would shower her, however, E.K. would scream, cry, and throw herself on the

      floor.


[7]   Around December 25, 2012, Weyland had a number of relatives staying at his

      home for the Christmas holiday. E.K., who was four years old at the time, also

      stayed with Weyland for five or six nights.


[8]   Amy picked E.K. up from Weyland’s house on the evening of December 27,

      2012. While Amy drove home, she and E.K. were talking. At some point

      during the conversation, E.K.’s tone of voice changed, and she told Amy that

      Weyland had touched her inappropriately. When Amy pulled the car over and

      called her mother (“Maternal Grandmother”), E.K. protested to Amy that it

      was “daddy’s secret and you’ll go to jail.” Tr. at 143.


[9]   Amy drove to Community Hospital in Anderson, where a sexual assault

      examination was performed on E.K. The following day, a forensic interviewer

      working for the Indiana Department of Child Services interviewed E.K.



      Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015   Page 3 of 13
       During the interview, E.K. stated that Weyland had touched her genitals with a

       picture-hanging nail and had placed his penis on her mouth.


[10]   A police investigation ensued based upon E.K.’s statements. On June 21, 2013,

       Weyland was charged with two counts of Attempted Child Molesting, as Class

       A felonies, and Child Molesting, as a Class C felony. The State also filed a

       notice of intent to seek a Habitual Offender enhancement.


[11]   On August 5, 2014, the State amended the charges against Weyland, adding to

       the existing charges an additional charge of Child Molesting, as a Class A

       felony.


[12]   A jury trial was conducted on August 6 and 7, 2014. During the trial, the State

       dismissed one count of Attempted Child Molesting, as a Class A felony.


[13]   Also during the trial, Weyland sought to introduce extrinsic evidence in the

       form of testimony from Amy concerning statements E.K. had made, which

       statements Weyland contended were inconsistent with prior statements of E.K.

       The State objected, and after an offer of proof the trial court ruled those

       statements inadmissible under Evidence Rules 613 and 403.


[14]   At the close of the trial, the jury found Weyland guilty of the three remaining

       charges: Attempted Child Molesting, as a Class A felony; Child Molesting, as a

       Class A felony; and Child Molesting, as a Class C felony.


[15]   A sentencing hearing was conducted on September 8, 2014. During the

       hearing, the trial court entered judgments of conviction against Weyland. At

       Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015   Page 4 of 13
       the end of the hearing, the court sentenced Weyland to forty-five years

       imprisonment for each of the two Class A felony-level convictions, and to six

       years imprisonment for the Class C felony-level conviction. The trial court ran

       the sentences concurrent with one another, yielding an aggregate term of

       imprisonment of forty-five years.


[16]   This appeal ensued.



                                  Discussion and Decision
                                  Sufficiency of the Evidence
[17]   On appeal, Weyland first contends that there was insufficient evidence to

       convict him of Attempted Child Molesting and Child Molesting, as Class A

       felonies, and of Child Molesting, as a Class C felony.


[18]   Our standard of review in challenges to the sufficiency of evidence is well

       settled. We consider only the probative evidence and reasonable inferences

       supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do

       not assess the credibility of witnesses or reweigh evidence. Id. We will affirm

       the conviction unless “no reasonable fact-finder could find the elements of the

       crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726

       N.E.2d 268, 270 (Ind. 2000)). “The evidence is sufficient if an inference may

       reasonably be drawn from it to support the verdict.” Id. at 147 (quoting Pickens

       v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).



       Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015   Page 5 of 13
[19]   To convict Weyland of Attempted Child Molesting, as a Class A felony, as

       charged, the State was required to prove beyond a reasonable doubt that

       Weyland, being at least twenty-one years old, attempted to commit Child

       Molesting, that is, to perform or submit to sexual intercourse or criminal

       deviate conduct with E.K., a child under fourteen years of age, by engaging in a

       substantial step toward committing the crime of child molesting, namely,

       attempting to place his penis in E.K.’s mouth. See I.C. §§ 35-42-4-3(a)(1) & 35-

       41-5-1; App’x at 108. There is sufficient evidence of a substantial step toward

       commission of a crime based upon taking an action, the “natural and usual

       sequence of which” would lead to commission of a completed offense. Boling v.

       State, 982 N.E.2d 1055, 1057 (Ind. Ct. App. 2013).


[20]   The evidence that favors the judgment as to Attempted Child Molesting, as a

       Class A felony, is that Weyland put his penis on or near E.K.’s mouth for

       “about three minutes” according to E.K.’s testimony, Tr. at 129, at least long

       enough for E.K. to testify at trial that Weyland’s penis was “squishy” or

       “squishy hard.” Tr. at 117. The jury was within its ambit to conclude that the

       “natural and usual sequence” of placing a penis near another person’s mouth is

       to engage in oral sex. Boling, 982 N.E.2d at 1057. To the extent Weyland

       contends he did not use any force or that touching his penis to E.K.’s mouth

       was “incidental” and “nothing that rises to the level of deviate sexual conduct,”

       Appellant’s Br. at 10, we regard such argument as an invitation to reweigh

       evidence, which we will not do. Drane, 867 N.E.2d at 146. We accordingly

       affirm his conviction for Attempted Child Molesting, as a Class A felony.


       Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015   Page 6 of 13
[21]   Weyland also argues that there was insufficient evidence to sustain his

       conviction for Child Molesting, as a Class A felony. To convict Weyland of

       Child Molesting, as a Class A felony, as charged, the State was required to

       prove beyond a reasonable doubt that Weyland, being at least twenty-one years

       old, performed or submitted to deviate sexual conduct with E.K., a child of

       under fourteen years of age, by inserting an object into the sex organ or anus of

       E.K. See I.C. § 35-42-4-3(a)(1); App’x at 109. On this count, Weyland argues

       that there was insufficient evidence that he actually inserted an object—here, a

       picture-hanging nail—into E.K.’s vagina or anus. That is, Weyland argues

       there was insufficient evidence to satisfy the requirement of penetration

       necessary to sustain a conviction for criminal deviate conduct or sexual

       intercourse, as required by the charging statute.


[22]   Our supreme court has emphasized that “proof of the slightest penetration is

       enough to support a conviction.” Spurlock v. State, 675 N.E.2d 312, 315 (Ind.

       1996). Detailed anatomical descriptions of penetration are unnecessary to

       sustain a conviction. Id. However, in Spurlock, the Indiana Supreme Court

       concluded there was insufficient evidence of penetration. In particular, the

       Suprlock Court observed that the victim in that case testified that “Spurlock’s

       penis touched her vagina,” but never testified that “it penetrated and went

       inside, and explicitly said she did not know whether that occurred.” Id.

       Spurlock’s victim also testified that “her vagina was used to go to the bathroom

       as well as to have intercourse, demonstrating only a generalized understanding

       of the term.” Id.


       Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015   Page 7 of 13
[23]   The evidence that favors the judgment comes, again, in the form of E.K.’s

       testimony. E.K. identified Weyland’s “middle part” as being what he used to

       “go potty,” Tr. at 115, and demonstrated knowledge generally that her own

       “middle part” or “bottom” should not be touched. Tr. at 112. E.K. testified

       that Weyland pulled down her pants and underwear and used a nail to touch

       her “middle part.” Tr. at 113. This “hurt a little bit.” Tr. at 114. E.K. testified

       that Weyland touched the “[o]utside because daddy still loves me” and “didn’t

       want it to hurt me that much.” Tr. at 114. Both upon direct and cross

       examination, E.K. testified only that Weyland had touched her genitalia on the

       “outside.” Tr. at 114, 129. And while E.K. was examined by Holly Renz

       (“Renz”), a Sexual Assault Nurse Examiner, that examination provided no

       probative evidence as to whether any penetration had occurred.


[24]   Based upon this, even viewed in a light most favorable to the judgment, we

       cannot conclude that there was sufficient evidence of penetration to convict

       Weyland of Child Molesting, as a Class A felony. We accordingly reverse the

       trial court and, on remand, instruct the trial court to vacate Weyland’s

       conviction for Child Molesting, as a Class A felony.


[25]   We now turn to the last of Weyland’s three convictions. To convict Weyland

       of Child Molesting, as a Class C felony, as charged, the State was required to

       prove beyond a reasonable doubt that Weyland performed or submitted to any

       fondling or touching with E.K., a child then under fourteen years of age, with

       the intent to arouse or satisfy either Weyland’s or E.K.’s sexual desires. See I.C.

       § 35-42-4-3(b); App’x at 109.

       Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015   Page 8 of 13
[26]   Here, Weyland argues that there was insufficient evidence of his intent to

       arouse or satisfy his or E.K.’s sexual desires. Weyland observes that he, Ivana,

       and Makayla all bathed E.K., including washing her genital area. Our review

       of the record, however, reveals that only Weyland showered with E.K. while

       both were nude. Moreover, Makayla testified that while E.K. would show

       reluctance to shower when prompted by Ivana or Makayla, E.K. would throw

       herself on the floor and scream when Weyland took her to shower. And while

       Weyland’s touching of the outside of E.K.’s genitalia with a nail did not

       amount to Child Molesting, as a Class A felony, Weyland’s purposive removal

       of E.K.’s pants and touching of her genital area is sufficient evidence to sustain

       the Class C felony conviction Weyland also challenges.


[27]   We conclude that there was sufficient evidence from which a reasonable jury

       could conclude that Weyland committed Child Molesting, as a Class C felony.

       We accordingly affirm this conviction.


                                     Admissibility of Evidence
[28]   Weyland also contends that the trial court abused its discretion and thereby

       committed reversible error when it denied his efforts to introduce extrinsic

       evidence of E.K.’s prior inconsistent statements, which evidence was to take the

       form of Amy’s testimony. 4




       4
        Weyland frames this initially as a constitutional question, referring to the confrontation provisions of the
       U.S. and Indiana constitutions. His substantive argument deals exclusively with the effect of Evidence Rules

       Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015               Page 9 of 13
[29]   We review a trial court’s rulings on the admissibility vel non of evidence for an

       abuse of discretion. Orr v. State, 968 N.E.2d 858, 860 (Ind. Ct. App. 2012). An

       abuse of discretion occurs when the trial court’s decision is contrary to the facts

       and circumstances before it, or when the court misinterprets the law. Bryant v.

       State, 959 N.E.2d 315, 321 (Ind. Ct. App. 2011). Even where a trial court

       abuses its discretion, however, we will not reverse the judgment if the error is

       harmless, that is, if the decision had no prejudicial effect on the substantial

       rights of the parties. Ind. Trial Rule 61.


[30]   At trial, Weyland sought under Evidence Rules 613 and 403 to obtain extrinsic

       evidence that E.K. had made prior statements to Amy that were inconsistent

       with E.K.’s trial testimony. The court denied Weyland’s efforts to cross-

       examine Amy for these purposes. Evidence Rule 613 governs impeachment of

       witnesses through prior statements:

               (a) Showing or Disclosing the Statement During Examination. When
               examining a witness about the witness’s prior statement, a party need
               not show it or disclose its content to the witness. But the party must,
               on request, show it or disclose its contents to an adverse party’s
               attorney.
               (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic
               evidence of a witness’s prior inconsistent statement is admissible only
               if the witness is given an opportunity to explain or deny the statement
               and an adverse party is given an opportunity to examine the witness
               about it, or if justice so requires. This subdivision (b) does not apply to
               an opposing party’s statement under Rule 801(d)(2).




       613 and 403 and applicable case law, however. To the extent Weyland contends there was error of
       constitutional dimension, then, that contention is waived. See Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015          Page 10 of 13
       Evidence Rule 403 provides, “The court may exclude relevant evidence if its

       probative value is substantially outweighed by a danger of one or more of the

       following: unfair prejudice, confusing the issues, misleading the jury, undue

       delay, or needlessly presenting cumulative evidence.”


[31]   The State objected to Weyland’s efforts to introduce extrinsic evidence in the

       form of Amy’s testimony, contending that Weyland had failed to lay a proper

       foundation because he had not confronted E.K. with her alleged prior

       inconsistent statements. See Orr, 968 N.E.2d at 863 (stating that the preferred

       method of introducing extrinsic evidence under Rule 613 is by confronting a

       witness before offering extrinsic evidence). The trial court observed that Rule

       613 permitted admission of extrinsic evidence even absent an opportunity for

       the witness to address prior inconsistent statements when “justice so requires,”

       Evid. R. 613(b), and opined that the interests of justice might so require where a

       witness was especially young like E.K. See Orr, 968 N.E.2d at 864-65

       (observing that trial courts have discretion to admit extrinsic evidence for

       impeachment of a witness under Evid. R. 613).


[32]   Accordingly, prior to a final ruling, the trial court heard Weyland’s offer of

       proof:

                Q:      [Amy], over the course of the last year and half is it fair to say
                        that [E.K.] has said different things at different times about
                        what her father did to her?
                A:      Yes.
       Tr. at 193. The State posed several follow-up questions:


       Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015    Page 11 of 13
               Q:       You stated that [E.K.] has said different things at different
                        times, the substance of which, has that remained the same?
               A:       Yes, just yes, she just disclosed more as time has gone on, her
                        story hasn’t changed.
               Q:       She’s just disclosed more?
               A:       Yes, things that she had originally disclosed to only DCS, you
                        know, she disclosed to me now. She just elaborated more.
                        There hasn’t been…
               Q:       She’s just given you more information than what she did
                        originally in the car?
               A:       Yes.
       Tr. at 193-94. When asked by the trial court whether he had further questions

       to ask as part of the offer of proof, Weyland’s counsel said, “No, Judge, that’s

       it.” Tr. at 194.


[33]   Based upon this record, and assuming without deciding there was any error in

       the trial court’s decision not to permit this examination of Amy before the jury,

       we cannot conclude that Weyland was prejudiced by the trial court’s decision

       not to admit such testimony. The proffered testimony did nothing to establish

       that E.K. had made significant inconsistent statements, let alone statements that

       might have substantially undermined E.K.’s testimony. We accordingly

       conclude that Weyland has failed to establish that he was prejudiced by any

       error on the part of the trial court, even assuming the trial court’s ruling was

       erroneous.



                                               Conclusion


       Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015   Page 12 of 13
[34]   There was sufficient evidence to sustain Weyland’s convictions for Attempted

       Child Molesting, as a Class A felony, and Child Molesting, as a Class C felony.

       Concluding there was insufficient evidence to support Weyland’s conviction for

       Child Molesting, as a Class A felony, we accordingly reverse the trial court.

       Finding as harmless any error in the trial court’s limitation of Weyland’s

       examination of a witness, we leave undisturbed Weyland’s two remaining

       convictions, but remand with instructions to vacate Weyland’s conviction for

       Child Molesting, as a Class A felony.


[35]   Affirmed in part, reversed in part, and remanded.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1409-CR-446 | June 3, 2015   Page 13 of 13
