                                                                Sep 15 2015, 8:40 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
David A. Smith                                            Gregory F. Zoeller
McIntyre & Smith                                          Attorney General of Indiana
Bedford, Indiana
                                                          Chandra K. Hein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Charles R. Strunk,                                        September 15, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          47A01-1411-CR-487
        v.                                                Appeal from the Lawrence Superior
                                                          Court;
                                                          The Honorable William G. Sleva,
State of Indiana,                                         Judge;
Appellee-Plaintiff.                                       47D02-1305-FA-560




May, Judge.




Court of Appeals of Indiana | Opinion 47A01-1411-CR-487 | September 15, 2015            Page 1 of 11
[1]   Charles R. Strunk appeals his conviction of two counts of sexual misconduct

      with a minor, one as a Class A felony 1 and the other as a Class B felony. 2

      Strunk argues the trial court abused its discretion when it limited Strunk’s cross-

      examination of J.B., admitted Strunk’s Facebook message to J.B., and admitted

      only an excerpt of Strunk’s statement to the police. We affirm.


                                      Facts and Procedural History
[2]   J.B. and her family lived in Heltonville, Indiana until J.B. was in sixth grade.

      While in Heltonville, J.B. became a close friend of Strunk’s daughters, and the

      Strunk family became friendly with J.B.’s family. After J.B.’s father passed

      away, J.B. and her family moved to Mitchell, Indiana, where Strunk, his wife,

      and their daughters would visit J.B. and her family.


[3]   On May 8, 2013, fifteen-year-old J.B. exchanged Facebook messages with

      Strunk. She testified, “I was wanting him to take me mushroom hunting.” (Tr.

      at 52.) Strunk told J.B. that he would take her mushroom hunting at some

      point. Around 5:00 p.m. that day, Strunk arrived at J.B.’s house unexpectedly.

      Around 6:00 p.m., Strunk and J.B. decided to walk through the woods behind

      J.B.’s house to look for mushrooms.


[4]   The two came to the bottom of a hill and J.B. sat down on some rocks. Strunk

      stood next to J.B., then “pull[ed] out a green piece of paper and a knife and he



      1
          Ind. Code § 35-42-4-9(a)(2) (2007).
      2
          Ind. Code § 35-42-4-9(a)(1) (2007).


      Court of Appeals of Indiana | Opinion 47A01-1411-CR-487 | September 15, 2015   Page 2 of 11
      starts reading the stuff on the paper.” (Id. at 60.) Stunk held up the knife and

      told J.B. to remove her clothes. J.B. complied and Strunk then pulled out a

      Sharpie pen and began writing symbols on J.B.’s chest, stomach, lower

      stomach, and inner thighs. Strunk then began to perform oral sex on J.B.

      Strunk stopped, stood up, and told J.B. that it was her turn. He took off his

      pants and underwear and forced J.B. to perform oral sex on him. After five

      minutes, J.B. heard her sister screaming her name. J.B. told Strunk that she

      needed to check on her sister. She put her clothes on and walked toward her

      house.


[5]   Once J.B. and Strunk reached the backyard, Strunk began to have a seizure.

      J.B. testified Strunk had multiple seizures that day. Strunk remained at J.B.’s

      house until he recovered later that night. J.B.’s mother called Strunk’s wife,

      Sally, and told her about the seizures. Sally testified Strunk did not want

      medical attention and she was not able to take Strunk home. She asked J.B.’s

      mother to send Strunk home when the seizures were over. Around 11:00 p.m.,

      Strunk went to his car. He sat in his car for an hour, then left around midnight.


[6]   After Strunk left, he sent J.B. a Facebook message::

              im sorry about what happened. But if yoi possibly can we need to
              finish the ritual. Untill we do i must suffer the aftermath of it all. That
              is what caused the seizures. And it will only get worse from there. So
              please save me from this suffering. Please I beg of you.


      (State’s Ex. 19) (spelling errors in original). At this point, J.B. “curled up in a

      ball on the [kitchen] island crying her eyes out shaking back and forth.” (Tr. at

      Court of Appeals of Indiana | Opinion 47A01-1411-CR-487 | September 15, 2015          Page 3 of 11
      325.) After a few minutes, J.B. calmed down and reported Strunk had molested

      her in the woods. Her mother called Sally, informed her of J.B.’s allegations

      against Strunk, and advised Sally that she intended to call the police. She then

      called the police.


[7]   Lawrence County Police Department (LCPD) officers Justin Shirley and

      Jerome Hettle responded to the call. The Officers took photographs of the

      markings on J.B.’s torso and legs and the message from Strunk. Hettle and

      Shirley called LCPD Detective Phil Wigley.


[8]   J.B. was taken to a hospital and examined by Melissa Mitchell, a registered

      nurse certified as a “sexual assault nurse examiner.” (Id. at 318.) Mitchell

      collected physical evidence, including photographs of the markings and a rape

      kit. Heather Crystal, a forensic biologist with the State Police, performed Y-

      STR analysis of DNA found on J.B. 3 Crystal could not exclude Strunk and all

      his male relatives as being contributors of that DNA.


[9]   Detective Wigley tried to contact Strunk by cell phone but was unsuccessful.

      An arrest warrant was issued and after Strunk’s arrest Detective Wigley

      interviewed him. The State charged Strunk with Class A felony sexual

      misconduct with a minor and Class B felony sexual misconduct with a minor.




      3
       Y-STR analysis “is the DNA analysis from the ‘Y’ chromosome which is found only in males. It’s passed
      on directly from a father to his son.” (Tr. at 483.)

      Court of Appeals of Indiana | Opinion 47A01-1411-CR-487 | September 15, 2015                Page 4 of 11
       A jury found Strunk guilty as charged, and the trial court entered judgments of

       conviction.


                                       Discussion and Decision
[10]   We typically review admission of evidence for an abuse of discretion. King v.

       State, 985 N.E.2d 755, 757 (Ind. Ct. App. 2013), trans. denied. Thus, we reverse

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

       and circumstances before it. Id. We will not reweigh the evidence, and we will

       consider conflicting evidence in favor of the trial court’s ruling. Id. However,

       we must also consider uncontested evidence favorable to the defendant. Id. A

       trial court ruling will be upheld if it is sustainable on any legal theory supported

       by the record, even if the trial court did not use that theory. Rush v. State, 881

       N.E.2d 46, 50 (Ind. Ct. App. 2008). Error in the admission or exclusion of

       evidence is to be disregarded as harmless unless it affects the substantial rights

       of a party. Id.


                                     Limitation of Cross-Examination

[11]   The right to cross-examine witnesses is guaranteed by the Sixth Amendment of

       the United States Constitution and Article I section 13 of the Indiana

       Constitution. “The conduct of cross-examination is within the discretion of the

       trial court, and only a total denial will result in an error of constitutional

       proportion.” Stonebraker v. State, 505 N.E.2d 55, 58 (Ind. 1987), reh’g denied.

       “Anything less than a total denial is viewed as a regulation of the scope of




       Court of Appeals of Indiana | Opinion 47A01-1411-CR-487 | September 15, 2015   Page 5 of 11
       cross-examination by the trial court, and will be reviewed for an abuse of

       discretion.” Id. at 59.


[12]   Strunk argues the trial court should have allowed him to cross-examine J.B.

       about her marijuana usage the night of the molestation. “Evidence of a victim’s

       drug use is generally irrelevant except in relation to the victim’s mental capacity

       to recall the crime and testify about it.” Pannell v. State, 686 N.E.2d 824, 826

       (Ind. 1997). “The credibility of a witness may be attacked by showing a defect

       of capacity in the witness to observe, remember or recount the matters testified

       about.” Lusher v. State, 390 N.E.2d 702, 704 (Ind. Ct. App. 1979), reh’g denied.


[13]   Outside the presence of the jury, Strunk examined J.B. as part of his offer of

       proof. J.B. testified that, after the molestation occurred, she went with her

       mother to a gas station where a friend gave her a single marijuana cigarette.

       J.B. recalled that she did not smoke it until after the police were called, which

       was six to seven hours after the molestation. J.B. testified her account of the

       molestation was accurate and smoking a single marijuana cigarette in no way

       affected her ability to remember the molestation.


[14]   There is no evidence J.B.’s smoking of a single marijuana cigarette six to seven

       hours after the molestation impaired her perception, ability to remember, or

       ability to testify about the molestation. See id. (drug use may not be used to

       attack the credibility of a witness unless evidence tends to show witness was

       under the influence of drugs either at the time of trial or at the time of the events




       Court of Appeals of Indiana | Opinion 47A01-1411-CR-487 | September 15, 2015   Page 6 of 11
       testified to). The trial court did not abuse its discretion by limiting Strunk’s

       cross-examination of J.B.


                                               Facebook Message

[15]   Strunk argues the trial court abused its discretion when it admitted a message

       he sent to J.B. via Facebook because the State did not properly authenticate the

       message. “To satisfy the requirement of authenticating or identifying an item of

       evidence, the proponent must produce evidence sufficient to support a finding

       that the item is what the proponent claims it is.” Ind. Evid. R. 901.

       Authentication of an exhibit can be established by either “direct or

       circumstantial evidence.” Newman v. State, 675 N.E.2d 1109, 1111 (Ind. Ct.

       App. 1996). Testimony that an item is what it is claimed to be, by a witness

       with knowledge, is sufficient to authenticate an item. Evid. R. 901. Distinctive

       characteristics like “the appearance, contents, substance, [and] internal

       patterns” taken together with all the circumstances is another way to

       authenticate an item of evidence. Id. “Any inconclusiveness regarding the

       exhibit’s connection with the events at issue goes to the exhibit’s weight, not its

       admissibility.” Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans.

       denied.


[16]   During J.B.’s testimony, the trial court admitted screen shots of Strunk’s

       Facebook profile and his message to J.B. J.B. testified that she had

       communicated with Strunk through the same profile page on previous

       occasions. She knew it was Strunk’s page because Strunk’s profile picture was a

       wolf and the screen shot in Exhibit 18 contained the same picture. J.B. knew
       Court of Appeals of Indiana | Opinion 47A01-1411-CR-487 | September 15, 2015   Page 7 of 11
       the screen shot was Strunk’s Facebook profile because they had two mutual

       friends listed on Strunk’s page, one of which was her mother. J.B.’s mother

       also identified Exhibit 18 as a screen shot of Strunk’s Facebook profile and

       verified that she was one of Strunk’s mutual friends.


[17]   J.B. testified Strunk left her house around midnight and that after Strunk left,

       J.B. received his message through the same Facebook page she had used to

       communicate with Strunk earlier that day. The trial court properly admitted

       the Facebook message. See id. at 977 (showing that the message originated with

       the alleged sender’s personal cell phone, under circumstances in which it is

       reasonable to believe that only the alleged sender would have had access,

       creates a reasonable probability the item is authentic), trans. denied.


                                           Strunk’s Statement to Police

[18]   The trial court did not abuse its discretion when it refused to admit the entire

       recording of a conversation between Strunk and Detective Wigley. 4 During

       trial, the State asked Detective Wigley about Strunk’s interview with the police

       on May 17, 2013. After the State’s direct examination, Strunk asked to make




       4
        In Strunk’s reply brief, Strunk said the State misapprehended his argument in his opening brief and that the
       “actual argument on appeal . . . is that the trial court erred when it refused to permit Strunk to cross-examine
       Wigley about the whole conversation he had with Strunk.” (Reply Br. of Appellant at 14) (emphasis on
       original). In his Brief of Appellant, Struck stated:
                The final issue before the Court is whether the trial court erred when it refused to admit
                the entire recording of a conversation between Strunk and lead investigator Phil Wigley
                after Wigley testified misleadingly about the whole conversation, omitting key aspects.
                This decision is erroneous under both Evidence Rule 106 and the common-law doctrine
                of completeness.
       (Br. of Appellant at 37.)

       Court of Appeals of Indiana | Opinion 47A01-1411-CR-487 | September 15, 2015                          Page 8 of 11
       an offer of proof because he wanted to cross-examine Detective Wigley about

       the interview, specifically about Strunk’s report during the interview that J.B.

       had a motive to lie because she allegedly was upset that Strunk threw out her

       bag of marijuana. The trial court reasoned that because Strunk’s interview was

       recorded or reduced to writing and because Strunk could admit that recording if

       he wished his assertion admitted, Strunk could not cross-examine Detective

       Wigley about the matter.


[19]   Strunk called Detective Wigley as a witness during his case-in-chief but did not

       try to admit the existing recording. Later, during the State’s rebuttal, the State

       called Detective Wigley to the stand again and he testified about another

       portion of his conversation with Strunk on May 17, 2013. The State submitted

       Exhibit 31, which was an excerpt from the videotaped interview between

       Detective Wigley and Strunk on May 17, 2013, wherein Strunk said he had

       accidentally left his phone in his residence on the day in question. In response

       to the State’s offer of this excerpt, Strunk affirmatively stated, “No objection,”

       and the excerpt was admitted. (Tr. at 605.)


[20]   Strunk waived any alleged error in the entire videotaped statement not being

       admitted when he affirmatively stated he had no objection to a portion of the

       videotaped statement that was admitted. See Hayworth v. State, 904 N.E.2d 684,

       693-694 (Ind. Ct. App. 2009) (“By stating ‘No objection,’ we find that

       Hayworth has waived her objection to that evidence.”) Strunk did not renew

       his objection, ask for a continuing objection, or maintain his position in any

       way.

       Court of Appeals of Indiana | Opinion 47A01-1411-CR-487 | September 15, 2015   Page 9 of 11
[21]   Notwithstanding the waiver, the admission of the excerpt was not error.

       Evidence Rule 106 states: “If a party introduces all or part of a writing or

       recorded statement, an adverse party may require the introduction, at that time,

       of any other part – or any other writing or recorded statement – that in fairness

       ought to be considered at the same time.” Ind. Evid. R. 106. “Evid. R. 106 is

       designed to avoid misleading impressions caused by taking a statement out of

       its proper context or otherwise conveying a distorted picture by the introduction

       of only selective parts.” Liebetenz v. State, 717 N.E.2d 1242, 1248 (Ind. Ct. App.

       1999), trans. denied. If portions do not explain or are irrelevant to the portions

       already introduced, a court is not required to admit the remainder of the

       statement. Id. The remainder of the statement or document is subject to the

       general rules of admissibility and portions found to be immaterial, irrelevant, or

       prejudicial should not be admitted. Brown v. State, 728 N.E.2d 876, 878 (Ind.

       2000), abrogated on other grounds by Fajardo v. State, 859 N.E. 2d 1201, 1206-1207

       (Ind. 2007).


[22]   Strunk has not argued that the admitted excerpt gave the jury a misleading

       impression that would have been corrected by the admission of the entire

       statement. 5 The only thing that Strunk talked about on the admitted excerpt

       was his leaving his phone at his residence on the day in question. As there was




       5
        Instead, Strunk asserts “the entire statement would have cast doubt on J.B.’s credibility, and it would have
       shown that J.B. had a motive to fabricate her allegations.” (Br. of Appellant at 42.) However, as the
       admitted excerpt did not involve discussion of J.B.’s motive, there was no misimpression to “correct” by
       admitting the remainder of the recording. Thus, Evidence Rule 106 did not require the remainder be
       admitted on that basis.

       Court of Appeals of Indiana | Opinion 47A01-1411-CR-487 | September 15, 2015                     Page 10 of 11
       no “misleading impression” created by the admission of the excerpt, the trial

       court was within its discretion to decline to admit the entire recording. See

       Liebetenz, 717 N.E.2d at 1248.


                                                  Conclusion
[23]   The trial court did not abuse its discretion when it limited Strunk’s cross-

       examination of J.B., admitted Strunk’s Facebook message to J.B., or admitted

       only an excerpt of Strunk’s statement to the police. We accordingly affirm.


[24]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 47A01-1411-CR-487 | September 15, 2015   Page 11 of 11
