                                                                          Dec 31 2015, 10:20 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
      Leanna Weissmann                                          Gregory F. Zoeller
      Lawrenceburg, Indiana                                     Attorney General of Indiana
                                                                Ian McLean
                                                                Deputy Attorney General of Indiana
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Kyle W. Dilts,                                            December 31, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                15A01-1412-CR-545
              v.                                                Appeal from the Dearborn Superior
                                                                Court

      State of Indiana,                                         Trial Court Cause No.
                                                                15D01-1310-FA-22
      Appellee-Plaintiff.
                                                                The Honorable Jonathan N. Cleary,
                                                                Judge




      Pyle, Judge.


                                        Statement of the Case
[1]   This case is a reminder that failure to make a contemporaneous objection at the

      time evidence is introduced at trial will result in waiver of the issue on appeal.

      Indeed, an appellate claim will not be preserved upon an objection discussed or

      not made immediately prior to or following the admission of evidence.

      Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015                 Page 1 of 30
[2]   Kyle Dilts (“Dilts”) was charged with and convicted of the following two

      counts of Class A felony child molesting:1 Count I for engaging in sexual

      intercourse with his daughter and Count II for engaging in deviate sexual

      conduct with that same daughter. During sentencing, the trial court vacated

      Dilts’s conviction for Class A felony child molesting in Count II, apparently

      basing its decision on either double jeopardy grounds or the continuing crime

      doctrine, and imposed a thirty-six (36) year sentence for Dilts’s Class A felony

      child molesting under Count I.


[3]   On appeal, Dilts challenges two of the trial court’s evidentiary rulings made

      during his jury trial. Specifically, he contends the trial court abused its

      discretion by admitting: (1) testimony regarding Dilts’s suicidal ideation

      following his daughter’s accusations against him; and (2) his daughter’s

      videotaped interview with a child abuse forensic interviewer. The State cross-

      appeals and argues that the trial court erred by vacating Dilts’s Class A felony

      child molesting conviction in Count II because the conviction neither violated

      the prohibition against double jeopardy nor the continuing crime doctrine.


[4]   Concluding that Dilts waived review of his evidentiary challenges by failing to

      make a contemporaneous object at the time the challenged evidence was

      introduced at trial, we affirm Dilts’s conviction for Class A felony child




      1
        IND. CODE § 35-42-4-3(a)(1). We note that, effective July 1, 2014, a new version of this child molesting
      statute was enacted and that Class A felony child molesting is now a Level 1 felony. Because Dilts
      committed his crimes before the effective date, we will refer to the statute in effect at that time.

      Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015                       Page 2 of 30
      molesting as contained in Count I. In regard to the State’s cross-appeal issue,

      we agree that that trial court erred by vacating Dilts’s Class A felony child

      molesting conviction from Count II. Therefore, we reverse the trial court’s

      order vacating this conviction and remand with instructions for the trial court to

      enter judgment of conviction for this conviction under Count II and to hold a

      new sentencing hearing to sentence Dilts for this Count II conviction.


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


                                                     Issues
              1. Appeal Issue – Whether the trial court abused its discretion by
              admitting testimony regarding Dilts’s suicidal ideation and by
              admitting the victim’s videotaped interview with a child abuse
              forensic interviewer.

              2. Cross-Appeal Issue – Whether the trial court erred by vacating
              Dilts’s Class A felony child molesting conviction in Count II based
              on double jeopardy grounds or the continuing crime doctrine.


                                                      Facts
[6]   In 2011, Dilts was separated from his wife, Samantha Dilts (“Samantha”), with

      whom he had a daughter, K.D., born in March 2001. At that time, K.D. and

      Samantha lived in Kentucky with K.D.’s siblings and half-siblings, and Dilts

      lived in Aurora, Indiana with his girlfriend, Christie Rutledge (“Rutledge”), and

      her children.


[7]   During the time when Dilts lived in his house in Indiana, he inappropriately

      touched K.D. on multiple occasions when she visited him. The first time,

      which was sometime in 2011, K.D. was in the bathroom when Dilts went into
      Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015   Page 3 of 30
       the bathroom and “started fingering [her]” or touching her in her “vaginal area”

       with his fingers “moving in a circular motion.” (Tr. 503, 504). Dilts, who was

       wearing no pants and had been masturbating, then picked up K.D., put her on

       his lap with her facing out, and “proceeded in fingering [her] again.” (Tr. 505).

       Dilts then “[p]artial[ly] inserted his penis into K.D.’s vagina. (Tr. 506).


[8]    Subsequently, a few weeks later, Dilts again touched K.D. in the bathroom at

       his house in Indiana. Dilts “stuck his hands down [K.D.’s] pants[,]” “took all

       of [her] clothes off[,]” picked her up, placed her on his lap as he sat on the

       toilet, and “inserted his penis” into K.D. (Tr. 509, 510). At this time, K.D. saw

       and felt that Dilts had a “bump” on his penis. (Tr. 510).


[9]    On a third occasion at Dilts’s house, he went into K.D.’s bedroom, where she

       was getting dressed, “pull[ed] [her] pants down about halfway” and then

       “fingered” and “licked” her “vaginal area.” (Tr. 511). After each molestation,

       Dilts warned K.D. not to tell anyone about what he had done.


[10]   In August 2013, K.D. confided in her friend, T.A., that Dilts had molested her.

       K.D. was “shaky” and “crying.” (Tr. 388). K.D. told T.A. not to tell anyone.

       Around that same time, T.A.’s mother, Melanie Bowman (“Bowman”), noticed

       a change in K.D.’s demeanor from being a “bubbly kid” to “act[ing] strange”

       and not wanting to go around Bowman’s husband. (Tr. 400). T.A. eventually

       told her mother, who then informed K.D.’s mother, Samantha, about what

       Dilts had done. Thereafter, K.D.’s allegations were reported to the Indiana




       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015   Page 4 of 30
       Department of Child Services (“DCS”) and the Dearborn County Sheriff’s

       Department.


[11]   On August 29, 2013, K.D. spoke to Stephanie Back (“Back”), a forensic

       interviewer with the Child Advocacy Center (“CAC”). Detective John Vance

       (“Detective Vance”) of the Dearborn County Sheriff’s Department’s Special

       Crimes Unit and Teresa Patrick (“Patrick”), a family case manager with DCS,

       were present for the CAC interview and listened from a separate room. During

       the interview, then twelve-year-old K.D. disclosed to Back that Dilts started to

       sexually abuse her when she was nine years old. K.D. stated that, when she

       was at Dilts’s house in Indiana, he had touched her vagina with his fingers,

       mouth, and penis. Additionally, K.D. alleged that Dilts had molested her when

       they lived in Kentucky and had also molested K.D.’s sister. After K.D.’s

       interview at the CAC, she went to Cincinnati Children’s Hospital for a physical

       examination. Dr. Berkeley Bennett (“Dr. Bennett”), who examined K.D.,

       discovered that K.D.’s hymen had a “transection” or a “significant tear” that

       was consistent with sexual abuse. (Tr. 718).


[12]   The following day, on August 30, 2013, Detective Garland Bridges (“Detective

       Bridges”) went to Dilts’s house and took a recorded statement from him.

       During that interview, Dilts confirmed that he had a bump on his penis.


[13]   Sometime after K.D.’s allegations against Dilts, DCS filed a petition alleging

       that K.D. was a child in need of services (“CHINS”). Dilts was subpoenaed to

       appear at a CHINS hearing scheduled for September 11, 2013, but he did not


       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015   Page 5 of 30
       appear. At that time, Dilts voluntarily admitted himself to a community mental

       health facility after he had apparently expressed some suicidal ideation.


[14]   Shortly thereafter, on October 2, 2013, the State charged Dilts with Count I,

       Class A felony child molesting (based on sexual intercourse); and Count II,

       Class A felony child molesting (based on deviate sexual conduct). These acts

       were alleged to have occurred between January 2011 and August 2013. 2


[15]   Prior to trial, the State requested a pretrial hearing to determine the

       admissibility of child hearsay pursuant to INDIANA CODE § 35-37-4-6, the

       Protected Person Statute (“PPS”). Specifically, the State asked the trial court to

       determine the admissibility of K.D.’s statements contained in her videotaped

       forensic interview at the CAC. On September 4, 2014, the trial court held a

       pretrial hearing to determine the admissibility of child hearsay pursuant to the

       PPS. During this hearing, K.D. testified about four instances when Dilts had

       molested her at his house in Indiana. At the end of the hearing, the State

       argued that the CAC video should be admissible at trial under the PPS because

       it had met its burden under INDIANA CODE § 35-37-4-6(e)(1) by showing that

       the videotape provided sufficient indications of reliability and its burden under

       section (e)(2) because K.D. would be testifying at trial. Dilts objected to the

       CAC video being admitted at trial, arguing only that the CAC video was

       “unreliable” because K.D.’s testimony during the hearing did not “match up”




       2
           These dates were contained in the amended information, which was filed on September 4, 2014.


       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015                    Page 6 of 30
       with her statements made in the CAC interview. (Tr. 98). Dilts’s counsel

       stated that “unavailability or availability [we]re not issues.” (Tr. 97).


[16]   Following the hearing, the trial court issued an order, in which it found, in part,

       that K.D.’s statements during the CAC interview were “generally consistent”

       with her testimony at the child hearsay hearing and that she had also “provided

       additional details of other incidents” involving Dilts. (App. 83). The trial court

       determined that “the August 29, 2013 videotaped [CAC] statement of K.D.

       [would be] admissible at the jury trial, so long as the other requirements of

       Indiana Code [§] 35-37-4-6 [we]re met, including K.D. testifying at trial, as

       required by the Indiana [C]ode absent psychiatrist, physician, or psychologist

       testimony concerning unavailability.” (App. 83-84).


[17]   The trial court held a four-day jury trial on September 15-18, 2014. During voir

       dire, Dilts’s two attorneys stated that they both had brothers who had

       committed suicide. One of the attorneys asked the jury venire “if evidence were

       presented that a suspect, a defendant, was depressed and contemplating suicide,

       that would not be evidence of guilt in your mind, would it?” (Tr. 268). Shortly

       thereafter, Dilts’s other attorney stated that the jury would hear that Dilts,

       “after learning about these accusations . . . attempted suicide.” (Tr. 285-86).

       His counsel then asked, “If you heard that someone attempted suicide, how

       would that make you feel?” (Tr. 286).


[18]   Dilts’s defense at trial was that he was innocent and that K.D. was making up

       the allegations against him. During opening arguments, Dilts’s counsel stated


       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015   Page 7 of 30
       that K.D. had a videotaped interview at the CAC where “she made these

       allegations that led to these charges.” (Tr. 362). His counsel then stated:


               And I agree with [the prosecutor], I want you guys to hear it. I
               want to characterize the statements that she made, because,
               again, it’s not good enough that I believe that [Dilts is] innocent.
               You guys get to make that decision. And after you -- after you
               listen to what [K.D.] has to say, just on the face of her statement,
               just from the statement itself and the twists and turns that it
               makes and the outlandish accusations that are contained in her
               statement and in the statement that she’ll give live and in court,
               just from the statement itself you’ll see that she is not telling the
               truth.

       (Tr. 362-63).


[19]   On the morning of the second day of the jury trial, before the trial continued,

       Dilts’s counsel deposed K.D. During that day of trial, Detective Vance and

       Patrick, the DCS family case manager, both testified that Dilts had failed to

       appear at the CHINS hearing on September 11, 2013. Prior to Detective

       Vance’s testimony on this subject, Dilts objected and argued that any testimony

       regarding a CHINS proceeding was prejudicial and should be excluded under

       Evidence Rule 404(b). The State responded that it was not going to present any

       testimony regarding the findings of the CHINS proceeding and that, instead,

       the testimony would be limited to the fact that Dilts failed to appear at the

       CHINS hearing as subpoenaed. The State added that an upcoming witness

       would testify that Dilts had not appeared for the CHINS hearing because “he

       had attempted to commit suicide or was thinking of committing suicide.” (Tr.

       432). The State argued that Dilts’s failure to appear for the CHINS hearing was

       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015   Page 8 of 30
       “relevant evidence of guilt[.]” (Tr. 432-33). The State asserted that this

       testimony was “evidence of his guilt, just like flight [i]s evidence of someone’s

       guilt . . . suicide is flight, and not appearing at a CHINS proceeding is flight.”

       (Tr. 433). The State acknowledged that “there [we]re other explanations as to

       why someone would commit suicide, but that [went] to the weight, not the

       admissibility” of the evidence. (Tr. 433). Dilts’s counsel responded that any

       evidence of attempted suicide was not evidence of guilt and that it was

       “improper to use a bad act [or] another act by this defendant that is not related

       to the acts for which he’s charged to then somehow prove that he did this other

       thing.” (Tr. 437). After the State told the trial court that Detective Vance

       would not testify about the suicide issue, the trial court overruled Dilts’s

       objection and allowed the State to present testimony from Detective Vance and

       Patrick that Dilts had failed to appear for the CHINS hearing.


[20]   That same day, K.D. testified regarding the three incidents of molestation as set

       forth above. During cross-examination, Dilts’s counsel tried to impeach her

       with: (1) the statements that she had made during the CAC interview; (2) her

       testimony from the child hearsay hearing; and (3) her deposition testimony

       taken the morning of trial. Specifically, Dilts’s counsel attempted to use

       portions of these prior statements to question K.D. about whether she was

       facing toward or away from Dilts when he molested her and whether or not

       Dilts was wearing a condom at that time. When Dilts’s counsel tried to

       impeach K.D. with one of her specific statements from the CAC interview, the

       State objected and argued that, under Evidence Rule 106, K.D.’s entire


       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015   Page 9 of 30
       statement should be introduced into evidence. At that point, the parties agreed

       that the CAC interview would be later introduced and played for the jury but

       with a redaction of the portions of the interview that contained allegations that

       Dilts had molested K.D. in Kentucky and had molested K.D.’s sibling.

       Thereafter, the parties finished their examinations of K.D., and the State

       presented other witnesses, including Dilts’s estranged wife, Samantha, who

       corroborated K.D.’s testimony that Dilts had a bump on his penis.


[21]   At the end of this second day of trial, the State informed the trial court about its

       intention to introduce and play the CAC interview the following day, and it

       again indicated that the video would need to be redacted. The trial court

       released the jury for the day and conducted a hearing regarding the videotaped

       CAC interview. The State told the trial court that it was working with Dilts’s

       attorneys to redact portions of the CAC interview that referenced the unrelated

       molestation allegations against Dilts. After the prosecutor stated that both

       parties wanted the CAC interview admitted, Dilts’s counsel agreed and stated

       that the parties would “figure . . . out” the redaction issue. (Tr. 613).


[22]   The following day, before resuming the trial, the trial court and the parties

       again discussed the CAC redaction issue. The parties had agreed that the

       Kentucky and sibling molestation allegations should be redacted from the 103-

       page CAC interview transcript and video but disagreed on the inclusion of four

       pages (pages 91-95) from K.D.’s statement. Dilts argued that some of the

       statements contained on these pages could lead the jury to believe that there

       were other allegations of abuse. The trial court acknowledged that some of the

       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015   Page 10 of 30
       details of K.D.’s CAC interview on the disputed pages were inconsistent with

       her trial testimony. The trial court, however, found that the disputed pages did

       not mention the allegations in Kentucky or involve K.D.’s sibling and ruled that

       these pages would be admitted with the remainder of the CAC interview as

       redacted by the parties.


[23]   Thereafter, still outside of the jury’s presence, the State made an offer of proof

       regarding its intention of presenting testimony regarding Dilts’s suicidal

       ideation. The State argued that it should be allowed to present evidence that

       Dilts did not show up to the CHINS hearing because he had suicidal thoughts

       and was hospitalized. Asserting that this was an issue of first impression in

       Indiana, the State presented supporting case law from other jurisdictions3 and

       argued that the trial court should engage in a Rule 403 balancing test to

       determine whether the evidence was admissible. The State argued that the

       evidence was probative because evidence of a suicide attempt was equivalent to

       evidence of flight, both of which were evidence of the consciousness of guilt.

       The State contended that the evidence was not prejudicial because Dilts could

       argue against the weight of the evidence by arguing that there were other

       reasons why a person would attempt suicide. The State pointed out that Dilts’s

       two attorneys had already done so during voir dire when they discussed reasons

       other than guilt associated with suicide. Dilts, on the other hand, argued that



       3
         The State submitted State v. Orozco, 708 S.E.2d 227 (S.C. Ct. App. 2011), reh’g denied, cert. granted, and
       Aldridge v. State, 494 S.E.2d 368 (Ga. Ct. App. 1997). The State also submitted an Indiana case in support of
       the proposition that flight could be considered by a jury as evidence of guilt.

       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015                     Page 11 of 30
       the State’s proposed evidence would be prejudicial because Dilts had not

       attempted to commit suicide and because his hospitalization had occurred

       before he was charged with the crimes at issue. Dilts also argued that evidence

       of suicide should be excluded because it was a prior bad act that was

       impermissible to prove the offenses. The trial court ruled that it would allow

       the State to present “evidence of the attempted suicide.” (Tr. 660-61). When

       ruling on the admissibility of the evidence, the trial court reasoned that Indiana

       allows evidence of conduct showing consciousness of guilt and that Dilts’s

       attorneys were aware of the evidence because they raised it during voir dire.4

       The trial court also stated that it had relied upon the South Carolina case

       submitted by the State and the State’s offer of proof that Dilts’s was aware of

       allegations against him at the time.


[24]   When the trial court resumed the jury trial, the State called Dilts’s sister-in-law,

       Danielle Dilts (“Danielle”), to the stand. Danielle testified that, in September

       2013, she was in the courthouse parking lot, when she saw Dilts’s girlfriend,

       Rutledge, talking to Dilts on the phone. Danielle testified that she talked on the

       phone to Dilts—who was “upset[,]” crying, and “devastated”—while Rutledge

       tried to phone someone “to get help to get to where [Dilts] was located.” (Tr.

       665). Danielle testified that she “was in fear that [Dilts] was in a bad way,” and

       she feared that he would attempt suicide “because of everything leading up to




       4
        The trial court stated that it was not basing its ruling upon a finding that Dilts had opened the door to such
       evidence.

       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015                       Page 12 of 30
       that.” (Tr. 667). Danielle also testified that Dilts was then taken by police

       escort and voluntarily admitted to a community mental health center. Dilts did

       not object to this relevant portion of Danielle’s testimony.5


[25]   Subsequently, the State called Detective Vance as a witness so that it could

       introduce and publish the CAC interview, State’s Exhibit 6, to the jury. Before

       the detective took the stand, Dilts’s counsel stated that Dilts “ha[d] to make an

       objection to the video being played at all” based on Tyler v. State, 903 N.E.2d

       463 (Ind. 2009), which he asserted held that allowing live testimony and a

       recorded statement was impermissible because the admission of both would

       result in vouching and bolstering. (Tr. 673). The State questioned the timing of

       Dilts’s bolstering argument and argued that Tyler did not apply because the

       CAC videotaped interview contained inconsistencies from K.D.’s trial

       testimony. The State also asserted that the CAC video should be admitted

       because Dilts had opened the door to its admission by bringing out statements

       from the video during K.D.’s cross-examination. The trial court stated that it

       “st[ood] by the order out of the child hearsay hearing” and ruled that the CAC

       video was admissible evidence. (Tr. 675).


[26]   The State then called Detective Vance to the stand and moved to admit the

       video. Dilts did not object, and the trial court admitted the CAC interview into

       evidence and began to play the video for the jury. At some point during the




       5
           Dilts raised hearsay objections to other portions of Danielle’s testimony.


       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015      Page 13 of 30
       publication of this exhibit, Dilts’s counsel approached the bench to make a

       motion. The trial court stopped the video and released the jury for a recess.

       Dilts’s counsel stated that he had planned to object to something he thought he

       heard during the playing of the video, but he informed the trial court that he

       was withdrawing the objection. The trial court expressed it displeasure with

       Dilts’s interruption, stating that “[a] motion such as that made during a

       publication of an exhibit that’s already been admitted obviously is a material

       interruption in the trial.” (Tr. 679-80).


[27]   Then, upon the State’s request, the trial court delayed playing the remainder of

       the CAC video so that the State could present testimony from Dr. Bennett, who

       had a scheduling issue. Later, after the State’s last witness, the parties

       discussed—outside the presence of the jury—the continuation of playing the

       CAC video. The prosecutor informed the trial court that the parties had

       “agreed on a restarting point” for the video and that the remaining duration

       was approximately seventy minutes. (Tr. 774). When the prosecutor requested

       that the video not be interrupted, Dilts’s attorney “apologize[d]” and stated that

       he “want[ed] to be safe with this thing[.]” (Tr. 775).


[28]   Upon reconvening the jury following a lunch break, the State completed

       publication of the CAC interview to the jury and then rested. (Tr. 778). Dilts’s

       attorney then stated that he had “grave concerns about the video” and began

       discussing “references” made in the video. (Tr. 778, 779). The trial court

       removed the jury from the courtroom and then stated:



       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015   Page 14 of 30
        The Court notes for the record that the State has rested. We’re
        outside the presence of the jury.

        [Dilts’s counsel] began to make an objection to the Child
        Advocacy Center video. The Court does want to make clear for
        the record that what’s been admitted as State’s Exhibit 5 is the
        transcript of the Child Advocacy Center interview. Beginning
        early this morning in chambers and then throughout the
        morning, there was a lengthy hearing regarding this issue. The
        parties -- What’s highlighted in State’s Exhibit 5, the parties
        agreed that it would be redacted. The Court has carefully
        listened to the video and it was redacted and was not shown to
        the jury.

        There was an objection by defense counsel for page 91 through
        95, and the Court held a hearing on that, overruled the objection,
        and allowed pages 91 through 95 to be published to the jury.

        So the Court feels that this issue has already been ruled upon,
        but, [Dilts’s counsel], if you wish to make a further objection for
        the record, you may.

(Tr. 780-81). Dilts’s counsel started to list instances in the video to which he

objected, but he then acknowledged that he was making “the same objection”

as he had previously made. (Tr. 782). The trial court then stated:


        Okay. The Court notes the defense has the same continuing
        objection, which the parties agreed to everything except for 91
        through 95 pages. The Court has already ruled upon that, it’s
        been published to the jury, so the Court finds at this point a
        continuing objection is noted but untimely.

(Tr. 782-83). The State then added that it “want[ed] to point out for the record

that . . . the State did not bring up the content of the CAC interview until the

defense brought it up during [Dilts’s] cross-examination” and that it was “the

Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015   Page 15 of 30
       State’s position [that] he opened the door to the entire CAC interview by raising

       it on cross-examination.” (Tr. 783).


[29]   Thereafter, Dilts moved for judgment on the evidence, which the trial court

       denied. Dilts then requested that the trial court dismiss Count II, arguing that:


               The evidence that’s been presented is that these allegations are --
               the factual allegations behind the two charging informations are
               identical and, therefore, having two counts of child molest – the
               second count is redundant, Your Honor. There’s no evidence
               that one count is alleged to have occurred at a different time than
               the other. They are identical in nature, they are identical in time,
               and, therefore, we would ask that Count No. 2 be dismissed.

       (Tr. 786-87). The State responded that the two charges involved the two

       separate acts of sexual intercourse and deviant sexual conduct, and the trial

       court denied Dilts’s motion to dismiss Count II. Dilts then rested.


[30]   During the State’s rebuttal closing argument, the prosecutor discussed Dilts’s

       failure to appear at the CHINS hearing, stating that he did not appear for the

       hearing because “he was admitted to [a facility] apparently on some discussion

       of killing himself.” (Tr. 876). The State subsequently argued that “[t]hat’s

       evidence of guilt” and then stated that “[n]ot everyone that kills himself is guilty

       of something[.]” (Tr. 876). At that point, Dilts’s counsel objected, without

       specifying a ground for the objection, and the trial court overruled the

       objection. Following closing arguments, the jury found Dilts guilty as charged.


[31]   At sentencing, Dilts made no further argument regarding the dismissal of his

       guilty verdict under Count II. However, when sentencing Dilts, the trial court

       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015   Page 16 of 30
discussed his two child molestation convictions. The trial court stated, in

relevant part:


        Now, the Court has considered the nature of the criminal offense.
        The weeklong jury trial, the testimony that the jury heard was
        that [K.D.], there was insertion of the defendant’s penis, that he
        licked her vaginal area, that there was finger insertion over a
        period of time when she was nine to 11 years old. That went
        from January 2011 to August of 2013.
                                              *****
        So those were the facts that the jury made the determination that
        [Dilts] was guilty of Count 1, which was the sexual intercourse,
        and Count 2, the deviant sexual conduct, which was the --
        basically the licking of the vaginal area.
                                              *****
        . . . Again, it’s [K.D.’s] father. The charged time period, she was
        between nine and eleven years old. The testimony was that this
        happened on numerous occasions where there was the oral,
        digital, and penis penetration.
                                              *****
        The Court wants to make perfectly clear, obviously there was a
        weeklong jury trial where a jury determined that Mr. Dilts did
        molest his daughter [K.D.] . . .

(Tr. 980-985). After discussing the two separate acts that constituted Dilts’s

convictions, the trial court vacated Dilts’s child molesting conviction under

Count II, stating:


        The Court vacates the conviction for Count 2. That was the oral
        child molestation. The jury found guilty of both. Under the
        double jeopardy analysis, since it was charged during the same
        period of time, the incidents occurred rather simultaneously, the
        Court vacates the conviction for Count 2, does impose sentence
Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015   Page 17 of 30
                 on Count 1, child molesting, being sexual intercourse by an
                 individual 21 years or older with a person under the years of 12
                 years.

       (Tr. 986-87). The trial court then imposed a thirty-six (36) year sentence for

       Dilts’s Class A felony child molesting under Count I and determined that he

       was a “credit-restricted felon under Indiana law.” (Tr. 987). Dilts now appeals

       his conviction under Count I, and the State cross-appeals the trial court’s ruling

       that vacated Dilts’s conviction under Count II.


                                                    Decision
       1. Appeal Issue – Admission of Evidence

[32]   Dilts argues that the trial court abused its discretion by admitting the following

       evidence at trial: (1) testimony regarding Dilts’s suicidal ideation; and (2)

       K.D.’s videotaped CAC interview.


[33]   Before we address Dilts’s arguments, we note that the admission and exclusion

       of evidence falls within the sound discretion of the trial court, and we review

       the admission of evidence only for an abuse of discretion. Wilson v. State, 765

       N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs when the trial

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

       circumstances before it. Conley v. State, 972 N.E.2d 864, 871 (Ind. 2012), reh’g

       denied.


                                             A. Suicidal Ideation




       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015   Page 18 of 30
[34]   Dilts first argues that the trial court abused its discretion by admitting testimony

       regarding his suicidal ideation. Dilts sets forth multiple arguments in regard to

       this issue. First, he acknowledges that other jurisdictions allow evidence of a

       suicide attempt to show consciousness of guilt, but he contends that the

       testimony should not have been admitted because he had only suicidal ideation,

       not a suicide attempt. Dilts also contends that the admission of the testimony

       should be reviewed under Evidence Rule 404(b). He asserts that “his suicidal

       thoughts [were] evidence of a wrongful or bad act because the State framed his

       mental state as [his] avenue to escape imprisonment for the commission of his

       crime.” (Dilts’s Br. 11). Next, he argues that the testimony should have been

       excluded under Evidence Rule 402 because his suicidal ideation was not

       relevant to the molestation accusations.6 Finally, Dilts argues that the

       testimony was prejudicial and that this prejudice outweighed its probative

       value.7


[35]   The State argues that the trial court did not abuse its discretion by admitting the

       testimony regarding Dilts’s suicidal ideation because it was relevant to prove

       consciousness of guilt. The State points out that Dilts was aware of the child

       molesting allegations against him, which had led to a CHINS proceeding, and



       6
         In support of this argument, Dilts cites to Cardine v. State, 475 N.E.2d 696 (Ind. 1985) and Kien v. State, 782
       N.E.2d 398 (Ind. Ct. App. 2003), reh’g denied, trans. denied. Dilts admits that “neither Kien nor Cardine are
       dispositive of [his] case” but argues that these cases show that Indiana appellate courts are “reluctan[t] to
       inject a defendant’s suicidal thoughts into evidence in a criminal trial.” (Dilts’s Br. 13) (emphasis of case
       names added).
       7
         For this final argument, he does not cite to Evidence Rule 403 even though such an argument falls under
       that rule.

       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015                         Page 19 of 30
       that he had failed to appear for the CHINS hearing because he was suicidal and

       admitted to a facility. The State argues that “the circumstances and timing of

       the event shows a sufficient connection between Dilts’ actions and the

       wrongdoing alleged regarding KD to support the trial court’s decision to allow

       the jury to consider whether the evidence proved a consciousness of guilt.”

       (State’s Br. 15). Additionally, the State asserts that Dilts failed to show that the

       evidence should have been excluded under Rule 403 because Dilts did not show

       that he was unfairly prejudiced by it, especially where his counsel had brought

       up the matter during voir dire. The State further contends that, even if this

       evidence of suicide were not admissible, Dilts’s counsel’s discussion of it during

       voir dire opened the door to such testimony. Finally, the State asserts that the

       admission of the testimony would be, at the very least, considered to be

       harmless error because there was substantial evidence of Dilts’s guilt.


[36]   The testimony that Dilts challenges on appeal was presented by Dilts’s sister-in-

       law, Danielle, whom the State called as a witness. Danielle testified that, on

       the day of the September 2013 CHINS hearing, she had spoken to Dilts, who

       was “upset[,]” crying, and “devastated[.]” (Tr. 665). Danielle further testified

       she feared that Dilts was going to attempt suicide and that he was admitted to a

       mental health facility that day.


[37]   While the parties have presented specific arguments regarding whether or not

       there was any error in the admission of this testimony, they both fail to mention

       that Dilts did not make a contemporaneous objection when the testimony was

       offered and admitted at trial. Nevertheless, the record reveals that—before the

       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015   Page 20 of 30
       State called Danielle to the witness stand and outside the presence of the jury—

       the parties argued about whether such testimony should be admitted, and the

       trial court ruled that it would allow the testimony. Dilts, however, did not

       object to this specific testimony at the time it was actually presented during

       trial, let alone offer an objection that mirrors his arguments raised on appeal.

       Thus, he has waived review of this issue on appeal. See Brown v. State, 929

       N.E.2d 204, 207 (Ind. 2010) (holding that a defendant’s failure to lodge a

       contemporaneous objection at the time evidence is introduced at trial results in

       waiver of the error on appeal), reh’g denied. See also Stephenson v. State, 29

       N.E.3d 111, 118 (Ind. 2015) (explaining that the failure to timely object to the

       admission of evidence will “procedurally foreclose” the error on appeal);

       Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000) (“The failure to make a

       contemporaneous objection to the admission of evidence at trial results in

       waiver of the error on appeal.”); Tinnin v. State, 416 N.E.2d 116, 118 (Ind.

       1981) (explaining that a defendant “must make his objection to a question

       before the answer is given in order to preserve the issue for appeal”).


[38]   Despite the lack of objection, “[a] claim that has been waived by a defendant’s

       failure to raise a contemporaneous objection can be reviewed on appeal if the

       reviewing court determines that a fundamental error occurred.” Brown, 929

       N.E.2d at 207. “The fundamental error exception is ‘extremely narrow, and

       applies only when the error constitutes a blatant violation of basic principles,

       the harm or potential for harm is substantial, and the resulting error denies the

       defendant fundamental due process.’” Id. (quoting Mathews v. State, 849 N.E.2d


       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015   Page 21 of 30
       578, 587 (Ind. 2006)). “The error claimed must either ‘make a fair trial

       impossible’ or constitute ‘clearly blatant violations of basic and elementary

       principles of due process.’” Id. (quoting Clark v. State, 915 N.E.2d 126, 131

       (Ind. 2009), reh’g denied). Dilts, however, does not offer a fundamental error

       argument, and we will not provide one for him.8 See Ind. App. R. 46(A)(8)(a).

       Therefore, Dilts has waived appellate review of this issue, and we will save for

       another day the issue regarding whether a defendant’s suicidal ideation is

       admissible as evidence of consciousness of guilt. 9


                                            B. Videotaped Interview


[39]   Next, we address Dilts’s argument that the trial court abused its discretion by

       admitting State’s Exhibit 6, the redacted version of K.D.’s videotaped CAC

       interview. Dilts argues that the trial court should not have allowed the State to




       8
         We note that, given the record before us—including the evidence presented supporting his convictions (e.g.,
       K.D.’s testimony and the medical evidence showing a significant tear to K.D.’s hymen) and Dilts’s attorneys’
       voir dire references to evidence of his suicidal ideation and alternative reasons for such ideation—we fail to
       see how the admission of Danielle’s testimony regarding Dilts’s suicidal ideation made a fair trial impossible
       or resulted in fundamental error.
       9
        We, however, recognize that our Indiana Supreme Court—in Stephenson v. State, 29 N.E.3d 111 (Ind.
       2015)—recently discussed the admissibility of a defendant’s suicide attempt. There, the defendant—two days
       after the police had questioned him about the crime of murder—attempted suicide and wrote a note in which
       he disavowed any involvement in the crime. Stephenson, 29 N.E.3d at 115. Evidence of the defendant’s
       suicide attempt and suicide note were admitted into evidence at trial, and the defendant objected to the
       evidence. Id. at 119. On appeal, the State argued that the suicide attempt evidence was relevant to the
       defendant’s motive and consciousness of guilt. Id. at 119-20. The Stephenson Court explained that prior
       Indiana case law had “not announce[d] a general proscription” against suicide attempt evidence. Id. at 119.
       The Court held that evidence was relevant to the issue of motive but “decline[d] to find that the mere
       existence of an attempted suicide, without more, is relevant evidence of a person’s guilty conscience about
       committing a charged crime, especially a charged crime which the person expressly disavows when the
       suicide is attempted.” Id. at 120.



       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015                     Page 22 of 30
       play the videotaped statement because K.D. had already testified during the

       trial. He contends that the videotaped statement improperly vouched for

       K.D.’s testimony. Dilts also asserts that admission of the videotaped CAC

       interview was in violation of the PPS, INDIANA CODE § 35-37-4-6, and the rule

       set out in Tyler v. State.


[40]   As with the previous evidentiary challenge, Dilts fails to demonstrate that he

       made a timely objection when this challenged evidence was admitted at trial.

       As revealed in the Facts Section above, the parties extensively discussed this

       CAC videotaped interview, including the relevant redactions cooperatively

       made by the parties and Dilts’s Tyler objection. These discussions, however,

       were prior to the time when the State called its sponsoring witness for this

       exhibit. When Detective Vance was on the stand and the State offered the

       CAC videotaped interview as State’s Exhibit 6, Dilts did not raise a

       contemporaneous objection to the admission of the exhibit. While Dilts’s

       counsel raised an objection during the publication of the exhibit and then

       withdrew it, such action was too late. “The requirement that evidentiary

       objections be made timely is for the purpose of permitting a trial court to take

       appropriate preventative or corrective action during trial.” Stephenson, 29

       N.E.3d at 119. Because Dilts did not object to State’s Exhibit 6 when it was

       admitted, he has waived appellate review of this issue. See Hartman v. State, 615

       N.E.2d 455, 459-60 (Ind. Ct. App. 1993) (explaining that a party must make an

       objection to an exhibit when it is offered and before it is admitted into evidence




       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015   Page 23 of 30
       and that an objection made after the evidence is admitted is untimely and

       unavailable for argument on appeal), reh’g denied.


       2. Cross-Appeal Issue – Vacated Child Molesting Conviction

[41]   The State cross-appeals the trial court’s determination vacating Dilts’s Class A

       felony child molesting conviction in Count II.


[42]   During the sentencing hearing, neither the State nor Dilts made any reference

       to the dismissal of Dilts’s guilty verdict under Count II. However, the trial

       court, after discussing the two separate acts that constituted Dilts’s convictions,

       vacated Dilts’s child molesting conviction under Count II, stating:

               The Court vacates the conviction for Count 2. That was the oral
               child molestation. The jury found guilty of both. Under the
               double jeopardy analysis, since it was charged during the same
               period of time, the incidents occurred rather simultaneously, the
               Court vacates the conviction for Count 2, does impose sentence
               on Count 1, child molesting, being sexual intercourse by an
               individual 21 years or older with a person under the years of 12
               years.

       (Tr. 986-87).


[43]   The State contends that the trial court vacated this conviction based on either

       double jeopardy principles or the continuing crime doctrine, and the State

       asserts that such action was improper under either theory. We agree.


[44]   First, as we review the State’s double jeopardy argument, we note that the

       Indiana Double Jeopardy Clause provides, in relevant part, that “No person

       shall be put in jeopardy twice for the same offense.” IND. CONST. art. I, § 14.

       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015   Page 24 of 30
       “Indiana’s Double Jeopardy Clause was intended to prevent the State from

       being able to proceed against a person twice for the same criminal

       transgression.” Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).

       Consequently, two or more offenses are the “same offense” and violate the state

       double jeopardy clause if, “with respect to either the statutory elements of the

       challenged crimes or the actual evidence used to convict, the essential elements

       of one challenged offense also establish the essential elements of another

       challenged offense.” Id. The Double Jeopardy Clause is violated under the

       actual evidence test if there is “a reasonable possibility that the evidentiary facts

       used by the fact-finder to establish the essential elements of one offense may

       also have been used to establish the essential elements of a second challenged

       offense.” Id. at 53. “[A] ‘reasonable possibility’ that the jury used the same

       facts to reach two convictions requires substantially more than a logical

       possibility.” Lee v. State, 892 N.E.2d 1231, 1236 (Ind. 2008). “Rather,

       ‘reasonable possibility’ turns on a practical assessment of whether the jury may

       have latched on to exactly the same facts for both convictions.” Id. See also

       Griffin v. State, 717 N.E.2d 73, 89 (Ind. 1999) (“To establish that two offenses

       are the same offense under the actual evidence test, the possibility must be

       reasonable, not speculative or remote.”), cert. denied.


[45]   Here, the parties do not dispute that the statutory elements and actual evidence

       used to convict Dilts of the two counts of child molesting were distinct. Indeed,

       in Count I, the State charged Dilts with Class A felony child molesting based on

       his act of engaging in sexual intercourse with K.D. between January 2011 and


       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015   Page 25 of 30
       August 2013. In Count II, the State charged Dilts with Class A felony child

       molesting based on his act of engaging in deviate sexual conduct with K.D.

       between the same time period. The State presented evidence that Dilts

       penetrated K.D.’s vagina with his penis, see I.C. § 35-31.5-2-302 (defining

       sexual intercourse), and it presented evidence that Dilts penetrated K.D.’s

       vagina with his fingers on multiple occasions and licked her vaginal area on one

       occasion. See I.C. § 35-31.5-2-94 (defining deviate sexual conduct).10 Because

       Dilts’s two offenses did not have the same statutory elements and because there

       is not a reasonable possibility that the jury used the same evidentiary facts to

       establish the essential elements of the offenses set out in Count I and Count II,

       the entry of judgment of conviction on both convictions would not have

       violated the Indiana Double Jeopardy Clause. Accordingly, we conclude that

       the trial court erred by vacating Dilts’s conviction in Count II based on double

       jeopardy principles.


[46]   Turning to the State’s argument regarding the continuing crime doctrine, we

       note that—during the time period that this appeal was being briefed—our

       Indiana Supreme Court clarified the application of this doctrine in Hines v. State,

       30 N.E.3d 1216 (Ind. 2015). Specifically, our supreme court explained:

                The continuous crime doctrine is a rule of statutory construction
                and common law limited to situations where a defendant has
                been charged multiple times with the same offense. “The



       10
         Effective July 1, 2014, after commission of Dilts’s crimes, this statute was repealed by P.L. 158-2013, sec.
       366.

       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015                       Page 26 of 30
               continuous crime doctrine does not seek to reconcile the double
               jeopardy implications of two distinct chargeable crimes; rather, it
               defines those instances where a defendant’s conduct amounts
               only to a single chargeable crime.” Boyd v. State, 766 N.E.2d 396,
               400 (Ind. Ct. App. 2002), trans. not sought, see Pierce v. State, 761
               N.E.2d 826, 830 (Ind. 2002) (recognizing “a series of rules of
               statutory construction and common law that are often described
               as double jeopardy, but are not governed by the constitutional
               test set forth in Richardson ”). The Legislature, not this Court,
               defines when a criminal offense is “continuous,” e.g. not
               terminated by a single act or fact but subsisting for a definite
               period and covering successive, similar occurrences. We have
               applied the continuous crime doctrine in the context of felony
               murder and robbery, confinement, and kidnapping; situations
               where the crime charged, as defined by statute, was
               “continuous.”

[47]   Hines, 30 N.E.3d at 1219-20 (footnotes omitted). The Hines Court held that the

       continuous crime doctrine “applies only where a defendant has been charged

       multiple times with the same ‘continuous’ offense.” Id. at 1220. The Hines

       Court held that the continuous crime doctrine did not apply to the facts of that

       case because the defendant, who was convicted of criminal confinement and

       battery, was not convicted of multiple charges of criminal confinement, nor

       multiple charges of battery. Id. at 1220-1221. The Court also reasoned that

       battery was not a crime for which all of the elements necessary to impose

       criminal liability were also elements found in criminal confinement or vice

       versa. Id. at 1221. Thus, the Hines Court concluded that criminal confinement

       and battery were “two distinct chargeable crimes” to which the continuous

       crime doctrine did not apply. Id.



       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015   Page 27 of 30
[48]   Here, Dilts was charged with two counts of Class A felony child molesting;

       however, one count was for sexual intercourse and the other was for deviate

       sexual conduct. Furthermore, the evidence presented showed that Dilts

       engaged in these distinct acts on different days.


[49]   Here, Dilts—recognizing the Hines Court’s clarification of the continuous crime

       doctrine—does not specifically repudiate the State’s argument that the trial

       court erred by vacating Dilts’s child molesting conviction under Count II

       pursuant to the continuous crime doctrine. Instead, Dilts argues that: (1) we

       should review the issue under an abuse of discretion standard; and (2) under

       that standard, we should hold that the trial court did not abuse its discretion by

       vacating Dilts’s Count II conviction under the doctrine because, at the time the

       trial court vacated the conviction, there was a split of authority in our Court

       regarding the doctrine. Specifically, he contends that “[g]iven that there were

       two ways of looking at Indiana’s double jeopardy analysis for continuing crimes

       when Dilts was sentenced, it cannot be said that the court abused its discretion

       in choosing to rely on the analysis set forth in Buchanan [v. State, 913 N.E.2d

       712 (Ind. Ct. App. 2009), trans. denied].” (Dilts’s Reply Br. 8). We disagree.


[50]   In Hines, our supreme court disagreed with Buchanan “[t]o the extent Buchanan

       st[oo]d for the proposition that the continuous crime doctrine may be judicially

       extended to two distinct criminal offenses[.]” Hines, 30 N.E.3d at 1220.

       Moreover, “‘[w]here the issue presented on appeal is a pure question of law, we

       review the matter de novo.’” Id. at 1219 (quoting State v. Moss–Dwyer, 686

       N.E.2d 109, 110 (Ind. 1997)). Whether convictions violate double jeopardy is a

       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015   Page 28 of 30
       pure question of law, which we review de novo. Rexroat v. State, 966 N.E.2d 165,

       168 (Ind. Ct. App. 2012), trans. denied. Thus, reviewing the specific facts of this

       case under that standard, we conclude that Dilts’s two child molesting

       convictions—one for sexual intercourse and one for deviate sexual conduct that

       occurred on different days—were “two distinct chargeable crimes” to which the

       continuous crime doctrine did not apply.11 See, e.g., Williams v. State, 755

       N.E.2d 1183, 1186 (Ind. Ct. App. 2001) (holding that the defendant perpetrated

       two separate offenses of resisting law enforcement and that the trial court

       properly entered convictions for both counts where the defendant fled from

       officers after being commanded to stop and also forcibly resisted those officers

       when they caught up with him and inflicted bodily injury upon them).

       Accordingly, the trial court erred by concluding that the continuous crime

       doctrine precluded the imposition of judgment of conviction on Dilts’s Count II

       Class A felony child molesting conviction.


[51]   Based on our determination that the trial court erred by vacating Dilts’s

       conviction under Count II, we remand with instructions for the trial court to

       enter judgment of conviction for this conviction under Count II and to hold a

       new sentencing hearing to sentence Dilts for this Count II conviction.


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




       11
         Indeed, our conclusion would be so whether under the de novo standard or the standard suggested by
       Dilts.

       Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015                 Page 29 of 30
Crone, J., and Brown, J., concur.




Court of Appeals of Indiana | Opinion 15A01-1412-CR-545 | December 31, 2015   Page 30 of 30
