MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              Feb 08 2017, 8:56 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
Leanna Weissmann                                         Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

James Sturgel,                                           February 8, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         15A01-1607-CR-1509
        v.                                               Appeal from the Dearborn
                                                         Superior Court
State of Indiana,                                        The Honorable Sally McLaughlin,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         15D02-1404-FB-24



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A01-1607-CR-1509 | February 8, 2017     Page 1 of 9
                                          Case Summary
[1]   James Sturgel (“Sturgel”) was convicted of one count of Class B felony Child

      Molesting1 and one count of Class C felony Child Molesting.2 Sturgel now

      appeals, contending that the trial court abused its discretion when it admitted

      evidence that Sturgel had admitted to molesting a different child. We reverse

      and remand for a new trial.



                                 Facts and Procedural History
[2]   Six-year-old J.S. was placed into foster care in October 2006. Her foster parent

      was Deborah Chaney (“Chaney”), and J.S. stayed with Chaney until April

      2007. A few years later, in 2011, J.S. told her grandmother that she was

      molested in foster care, and an investigation ensued. During a forensic

      interview, J.S. said the molestation occurred on multiple occasions, and

      indicated that the molestation may have occurred twenty-six times. The

      investigation led law enforcement to Sturgel, who was related to Chaney.


[3]   On April 24, 2014, the State charged Sturgel with four counts of Child

      Molesting but later reduced the charges to two counts. On April 13, 2016, the

      State notified Sturgel of its intent to introduce evidence under Indiana Evidence

      Rule 404(b) regarding, inter alia, Sturgel’s child molesting conviction involving a




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


      Court of Appeals of Indiana | Memorandum Decision 15A01-1607-CR-1509 | February 8, 2017   Page 2 of 9
      different child. Sturgel filed a motion in limine seeking to prohibit introduction

      of such evidence, and the trial court initially granted Sturgel’s motion.


[4]   A jury trial commenced on April 19, 2016. Throughout the trial, the State

      sought permission to introduce evidence of Sturgel’s conviction but the trial

      court sustained Sturgel’s objections. Late in the trial, however, the trial court

      permitted testimony regarding Sturgel’s admission to molesting a different child

      in Chaney’s care. The trial court allowed the evidence on only the issue of

      whether Sturgel had the opportunity to molest J.S. The trial court accordingly

      admonished the jury and gave a limiting instruction.


[5]   Sturgel was found guilty as charged, and the trial court later sentenced Sturgel.


[6]   This appeal ensued.



                                 Discussion and Decision
[7]   Sturgel argues that the trial court abused its discretion in admitting evidence

      that he admitted to molesting a child. He urges that admission of the evidence

      was contrary to Indiana Evidence Rule 404(b) and that, even if admissible, its

      probative value was substantially outweighed by its prejudicial effect in

      violation of Indiana Evidence Rule 403.


[8]   “In deciding whether to admit or exclude evidence, we trust trial courts to

      exercise sound discretion, and we will reverse such a decision only if we believe

      the court abused its discretion, meaning its decision is clearly against the logic

      and effect of the facts in the record.” Pierce v. State, 29 N.E.3d 1258, 1264 (Ind.
      Court of Appeals of Indiana | Memorandum Decision 15A01-1607-CR-1509 | February 8, 2017   Page 3 of 9
      2015). Indiana Evidence Rule 404(b) 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.” The evidence, however, “may be admissible for another purpose,

      such as proving motive, opportunity, intent, preparation, plan, knowledge,

      identity, absence of mistake, or lack of accident.” Ind. Evidence Rule

      404(b)(2). In evaluating the admissibility of 404(b) evidence, “a trial court must

      ‘(1) determine that the evidence of other crimes, wrongs, or acts is relevant to a

      matter at issue other than the defendant’s propensity to commit the charged act

      and (2) balance the probative value of the evidence against its prejudicial effect

      pursuant to Rule 403.’” Wilson v. State, 765 N.E.2d 1265, 1270 (Ind. 2002)

      (quoting Ortiz v. State, 716 N.E.2d 345, 350 (Ind. 1999)).


[9]   Here, the State sought to introduce evidence of Sturgel’s prior child molesting

      conviction. The trial court was made aware that Sturgel had pleaded guilty to

      molesting a child in 2008.3 The molestation apparently occurred while the child

      was in Chaney’s care and while others were in the same household.

      Throughout the trial, the State made a number of arguments for admission of

      the evidence. Among them, the State argued that the evidence spoke to

      Sturgel’s opportunity to molest J.S. The State focused on three moments in

      Chaney’s testimony. First, when Sturgel asked Chaney whether she saw him



      3
       The trial court reviewed certified copies of the judgment of conviction, probable cause affidavit, and other
      documents relating to Sturgel’s 2008 conviction. These documents were identified as Exhibits A(1) and A(2),
      but they are not in the appellate record.

      Court of Appeals of Indiana | Memorandum Decision 15A01-1607-CR-1509 | February 8, 2017           Page 4 of 9
       and J.S. wrestling around, Chaney said that “would have been inappropriate.”

       (Tr. Vol. I at 220.) Second, when the State asked Chaney whether Sturgel

       could have tickled J.S., Chaney responded, “With three (3) adults sitting in the

       house?” (Tr. Vol. I at 224.) Last, when the State asked Chaney about her

       reaction to the instant investigation in 2011, Chaney said she “couldn’t believe

       this was happening.” (Tr. Vol. I at 238.)


[10]   In ultimately deciding to allow evidence of Sturgel’s act on the issue of

       opportunity, the trial court referred to Chaney’s testimony, which the State had

       characterized as indignant at times. The trial court felt that Chaney’s responses

       left the impression “that [Chaney] is a completely appropriate foster parent.”

       (Tr. Vol. II at 79.) The trial court reasoned that “[t]he evidence presented by

       the foster parent is there’s always other people around . . . so there is still the

       issue of opportunity, and I think that’s what makes this evidence probative.”

       (Tr. Vol. II at 79.) The trial court further explained that the probative value

       substantially outweighed the danger of unfair prejudice because “it [was] unfair

       for the jury to make a decision thinking that this could never happen; that it

       would be shocking in 2011 when it was reported to the foster parent that this

       happened, when the foster parent was aware [that] the exact type of situation

       did happen under her care.” (Tr. Vol. II at 80-81.)


[11]   To address the “prejudicial nature” of the evidence, the trial court said it would

       “limit how this is presented to the jury” (Tr. Vol. II at 81), and gave an example

       of the line of questioning it would permit, which the State modeled:



       Court of Appeals of Indiana | Memorandum Decision 15A01-1607-CR-1509 | February 8, 2017   Page 5 of 9
               Q:       Ms. Chaney, yesterday you told the jury that in 2011 when
                        the police came to question you that you were shocked . . .
                        [b]y the allegations, isn’t that correct?


               A:       Yes.


               Q:       You also said that you had discussed with Brenda Sturgel
                        that you couldn’t believe this was happening, correct?


               A:       Yes.


               Q:       Yet weren’t you aware at the time you were questioned by
                        the police that in 2008[,] [Sturgel] . . . admitted to
                        molesting a five (5) year old under your care at the home
                        of Brenda Sturgel, while others [were] present in your
                        home?


               A:       Yes.


       (Tr. Vol. II at 84-85.) Following the admission of the evidence, the trial court

       informed the jury that the evidence was received solely on the issue of

       opportunity, and the trial court also later gave a limiting instruction.


[12]   The State argues that Sturgel “opened the door” to the introduction of the

       evidence. “[O]therwise inadmissible evidence may become admissible if a

       party ‘opens the door’ to questioning on that evidence in order to correct a

       ‘deceptively incomplete disclosure.’” Hall v. State, 36 N.E.3d 459, 471 (Ind.

       2015) (quoting Gilliam v. State, 270 Ind. 71, 383 N.E.2d 297, 301 (1978)). The

       evidence that “opened the door” must leave the trier of fact with a false or

       misleading impression of the facts related. Id. Sturgel did state in his opening
       Court of Appeals of Indiana | Memorandum Decision 15A01-1607-CR-1509 | February 8, 2017   Page 6 of 9
       argument that the alleged acts “could not have happened” (Tr. Vol. I at 76),

       noting that he was in Oregon during much of the relevant timeframe and that

       others were present on the few occasions J.S. and Sturgel were in the same

       home. Yet, Sturgel’s argument and later lines of questioning seemed to focus

       on challenging J.S.’s credibility as to the number of occasions, in that J.S. had

       posited that the molestation may have occurred twenty-six times. The State

       also points out that Sturgel asked Chaney whether Chaney saw him tickle J.S.,

       and Sturgel evidently tickled the other child before molesting her. But we

       cannot say that Sturgel’s question to the State’s witness, or Sturgel’s other

       remarks at trial, generated a false or misleading impression of the facts such that

       would warrant evidence that he admitted to molesting a different child.


[13]   As to admissibility under Rule 404(b), the evidence that Sturgel molested a

       different child in Chaney’s care is at best marginally relevant to the issue of

       opportunity—Sturgel acknowledged in his opening statement that he and J.S.

       were in the same household on more than one occasion, and the evidence

       indicated as much. Nonetheless, as the trial court reasoned, Chaney’s

       responses did suggest that Sturgel would have had a limited opportunity to

       harm a child in her care because others were present. Even if relevant,

       however, the evidence’s probative value with respect to opportunity must not be

       substantially outweighed by a danger of unfair prejudice. Evid. R. 403. We

       review the trial court’s Rule 403 balancing under an abuse of discretion

       standard. Hicks v. State, 690 N.E.2d 215, 223 (Ind. 1997).




       Court of Appeals of Indiana | Memorandum Decision 15A01-1607-CR-1509 | February 8, 2017   Page 7 of 9
[14]   Here, the trial court seemingly admitted the evidence for two purposes. First,

       the trial court admitted the evidence because the evidence shed light on whether

       a child in Chaney’s care could have been molested while others were in the

       home. The trial court also admitted the evidence because it called Chaney’s

       credibility into question, refuting her suggestion that she was an appropriate

       foster parent and that she was shocked by the investigation. However, evidence

       that someone—anyone—had molested a child in Chaney’s care, with others in

       the home, would have served both purposes. Yet, the admitted evidence

       identified Sturgel as the molester and identified the victim as of a similar age to

       J.S.’s. The evidence went too far. Neither Sturgel’s identity nor the victim’s

       age necessarily related to the stated purposes for admission of the evidence. See

       Thompson v. State, 690 N.E.2d 224, 236 (Ind. 1997) (“Unnecessary and

       inflammatory detail may require reversal.”). Moreover, the extraneous

       information admitted here was plainly prejudicial. Indeed, even if the

       challenged evidence was relevant and otherwise admissible, the prejudice from

       the “forbidden inference” Wickizer v. State, 626 N.E.2d 795, 797 (Ind. 1993)

       substantially outweighed its probative value, in relation to the “opportunity to

       commit the crime” rationale given for its admission.


[15]   We conclude that the trial court abused its discretion in admitting evidence that

       Sturgel admitted to molesting a different child. Nonetheless, the erroneous

       admission of evidence only warrants reversal for a new trial where the

       admission affected the substantial rights of the party. Evid. R. 103(a); Ind. Trial

       Rule 61; Buchanan v. State, 767 N.E.2d 967, 970 (Ind. 2002). “In determining


       Court of Appeals of Indiana | Memorandum Decision 15A01-1607-CR-1509 | February 8, 2017   Page 8 of 9
       whether the introduction of this evidence warrants reversal, we must assess the

       probable impact of the evidence upon the jury.” Lannan v. State, 600 N.E.2d

       1334, 1341 (Ind. 1992). “The improper admission is harmless error if the

       conviction is supported by substantial independent evidence of guilt satisfying

       the reviewing court there is no substantial likelihood the challenged evidence

       contributed to the conviction.” Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind.

       2012).


[16]   Here, the only independent evidence of Sturgel’s guilt consisted of J.S.’s

       testimony. Further, shortly after the trial court admitted the challenged

       evidence, the trial court received a jury question inquiring about Sturgel’s arrest

       history and requesting a copy of his charges. The question was telling; we

       cannot say the error here was harmless.



                                               Conclusion
[17]   The trial court abused its discretion in admitting evidence that Sturgel had

       admitted to molesting a child.


[18]   Reversed.


       Najam, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A01-1607-CR-1509 | February 8, 2017   Page 9 of 9
