                                                                                  FILED
                                                                            May 12 2016, 9:35 am

                                                                                  CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Marielena Duerring                                        Gregory F. Zoeller
South Bend, Indiana                                       Attorney General of Indiana
                                                          Ian Alexander Thomas McLean
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Philip D. Kyle,                                           May 12, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A03-1507-CR-969
        v.                                                Appeal from the Elkhart Superior
                                                          Court
State of Indiana,                                         The Honorable Teresa L. Cataldo,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          20D03-1107-FC-11



Pyle, Judge.




Court of Appeals of Indiana | Opinion 20A03-1507-CR-969| May 12, 2016                      Page 1 of 13
                                        Statement of the Case
[1]   Philip D. Kyle (“Kyle”) appeals his two convictions for Class C felony child

      molesting.1 On appeal, he argues that the trial court abused its discretion when

      it: (1) admitted an audiotape of phone conversations he had with the victim’s

      mother from jail; and (2) allowed the victim’s mother to testify that she was

      convicted of assisting a criminal as a result of trying to convince the victim to

      change his story. He asserts that the phone conversations were inadmissible

      under Indiana Evidence Rule 404(b) and that the testimony was inadmissible

      under Evidence Rule 704(b). However, we conclude that the trial court did not

      abuse its discretion because the phone calls and the victim’s mother’s testimony

      concerned conduct inseparable from Kyle’s offense, and their highly probative

      nature outweighed the risk of unfair prejudice to Kyle.


[2]   We affirm.


                                                       Issue
              Whether the trial court abused its discretion in admitting evidence.


                                                       Facts
[3]   Shellie Peyton (“Peyton”) started dating Kyle, whom she had known in high

      school thirty years previously, in August 2010. Peyton lived in Goshen,




      1
       IND. CODE § 35-42-4-3(b). Effective July 1, 2014 and 2015, the Indiana General Assembly amended the
      child molesting statute, and Kyle’s offenses would now be considered Level 4 felonies. However, we will
      apply the statute in effect at the time of Kyle’s offenses.

      Court of Appeals of Indiana | Opinion 20A03-1507-CR-969| May 12, 2016                          Page 2 of 13
      Indiana with her four children—seventeen-year-old So.P., sixteen-year-old P.P.,

      thirteen-year-old Su.P., and eight-year-old N.P—and two of So.P.’s friends.

      Eventually, Kyle began staying with the Peyton family four to five nights a

      week and would share a bedroom with Peyton and N.P.


[4]   On three or four occasions between the fall of 2010 and the spring of 2011, Kyle

      touched N.P. inappropriately when they were alone together in Peyton and

      N.P.’s room. Each time, Kyle reached under N.P.’s clothing and “rubbed”

      N.P.’s penis “[u]p and down.” (Tr. 315, 319). Kyle told N.P. not to tell

      anyone. Eventually, however, N.P. told his mother, who filed a report with the

      police.


[5]   On July 6, 2011, the State charged Kyle with two counts of Class C felony child

      molesting. After Kyle’s arrest, Peyton maintained contact with him while he

      was incarcerated. She visited him in jail and talked to him on the telephone at

      least twice. During Kyle’s conversations with Peyton, he denied molesting

      N.P. and told her that she needed to convince N.P. to change his story. Peyton

      then talked to N.P. about changing his story, and she called the Child and

      Family Advocacy Center, who had conducted a forensic interview of N.P., and

      requested that the center re-interview him. She also called the police and told

      them that N.P. wanted to come in and make another statement. As a result of

      these actions, Peyton was charged with, and convicted of, assisting a criminal,

      for which she was sentenced to forty-five days.




      Court of Appeals of Indiana | Opinion 20A03-1507-CR-969| May 12, 2016   Page 3 of 13
[6]   On March 16, 2015, the State filed a motion of its intent to offer Indiana

      Evidence Rule 404(b) evidence at Kyle’s trial. Specifically, it intended to offer

      audiotaped copies of Kyle’s telephone conversations with Peyton while he was

      in jail, as well as evidence of Peyton’s conviction for assisting a criminal—and

      the actions that had led to that conviction. Kyle filed an objection to the State’s

      motion, arguing that the notice was untimely and requesting that the trial court

      either deny the motion or continue the trial so that he could have time to

      prepare his defense. The trial court held a hearing on the motion. At the

      conclusion of the hearing, the court denied Kyle’s objection to the timeliness of

      the State’s motion but granted Kyle’s motion to continue the trial.


[7]   Subsequently, the trial court held a jury trial on June 1-3, 2015. At trial, the

      State admitted an audiotape with three excerpts of Kyle and Peyton’s jail phone

      calls and played the excerpts for the jury. Kyle objected to the admission of

      another of the audiotaped conversations but did not object to the admission of

      these three excerpts. In the first excerpt, he and Peyton had the following

      conversation:

              [Kyle:] Very, very much. You make me happy.

              [Peyton]: I love you, too.

              [Kyle:] But you love me. Go get that stuff done, see what you
              can do at your end about getting N.P. to talk to that [sic]
              people—

              [Peyton:] Okay. Okay.

              [Kyle:] Because it’s, it’s like that, it’s going to take that to get me
              out of here.
      Court of Appeals of Indiana | Opinion 20A03-1507-CR-969| May 12, 2016         Page 4 of 13
(Tr. 208). In the second excerpt, they had the following conversation:


        [Kyle:] You just get N.P. to tell the damn truth and get this
        straightened out through the Child Services and through this
        prosecutor, you know. Call that—

        [Peyton:] Yes.

        [Kyle:] Because Jolina has got a couple of letters back there, get
        her.

        [Peyton:] It’s Hinda?

        [Kyle:] Yes, it’s Hinda. She can help with the letters I sent her
        on this.

(Tr. 208-09). In the third excerpt, the two said:


        [Kyle:] Get yourself around tomorrow and get N.P. around get
        on the fall over there, get over there to tell sources or something,
        do what you got to do.

        [Peyton:] Yeah. A [] Child Advocate.

        [Kyle:] Okay. Child Advocate.

        [Peyton:] Service, yeah.

        [Kyle:] You know the boss will get this started, the sooner the
        better, you know what I mean?

        [Peyton:] Yeah. Okay.

        [Kyle:] They can get with the prosecutor. By the time I get—

        [Peyton:] --

        [Kyle:] Huh?

        [Peyton:] It’s, it’s supposed to rain and thunder and stuff
        tomorrow anyway, so maybe we have nothing else to do.
Court of Appeals of Indiana | Opinion 20A03-1507-CR-969| May 12, 2016          Page 5 of 13
              [Kyle:] Right. That way, you know, they can get with the
              prosecutor and let the prosecutor know that, that you’ve notified
              them and you’re letting—

              [Peyton:] Yeah.

              [Kyle:] N.P. told a lie.

              [Peyton:] Yes.

              [Kyle:] And this is a bull shit charge.

              [Peyton:] Yeah.

              [Kyle:] The prosecutor should know that this is a bull shit
              charge.

              [Peyton:] Yeah.

              [Kyle:] Yeah, okay.

              [Kyle:] Well, I’m going to quit talking to you again before this
              damn phone went did [sic]. You know what I mean?

              [Peyton:] (laughing) I know. I hate it when we’re talking on the
              screen around here, and it just fuckin dies out.

              [Kyle:] Yeah. It goes white. Well, (indiscernible) you got to tell
              me you love me this time.

              [Peyton:] Yeah.

              [Kyle:] Last time you didn’t so. I heard you told me you loved
              me. That really helped.

      (Tr. 210) (incorrect grammar and misspellings in original).


[8]   After the State played these audiotaped conversations for the jury, Peyton

      testified that she had called the Child and Family Advocacy Center after talking

      to Kyle and that she had asked the center to re-interview N.P. She also testified
      Court of Appeals of Indiana | Opinion 20A03-1507-CR-969| May 12, 2016        Page 6 of 13
       that, as a result of these actions, she had been charged with, and convicted of,

       assisting a criminal. Kyle did not object to this testimony.


[9]    At the conclusion of the trial, the jury found Kyle guilty as charged. The trial

       court later sentenced him to five (5) years for the first count, with one (1) year

       suspended to probation, and five (5) years for the second count, with all five (5)

       years suspended to probation. The court ordered the sentences to be served

       consecutively, for an aggregate sentence of ten (10) years with four (4) years

       executed in the Indiana Department of Correction and six (6) years suspended

       to probation. Kyle now appeals.


                                                    Decision
[10]   On appeal, Kyle argues that the trial court abused its discretion by admitting his

       audiotaped jail phone calls and Peyton’s testimony that she had been convicted

       of assisting a criminal. We will address each argument in turn.


[11]   The admission and exclusion of evidence falls within the sound discretion of

       the trial court. Guffey v. State, 42 N.E.3d 152, 159 (Ind. Ct. App. 2015), trans.

       denied. As a result, we review the admission of evidence only for an abuse of

       discretion. Id. 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. Id.


[12]   First, Kyle argues that the jail phone call excerpts that the State played for the

       jury were inadmissible under Indiana Evidence Rule 404(b) because they

       “encourage[d] the jury to make the forbidden inference . . . that Kyle was

       already a ‘criminal’ and [] had a propensity to commit this crime.” (Kyle’s Br.
       Court of Appeals of Indiana | Opinion 20A03-1507-CR-969| May 12, 2016      Page 7 of 13
       7). However, Kyle did not object to the excerpts that the trial court admitted

       and the State published to the jury.


[13]   A trial counsel’s failure to object to the admission of evidence waives an error

       for appellate review. Johnson v. State, 725 N.E.2d 864, 867 (Ind. 2000). Here,

       Kyle not only failed to object but affirmatively denied that he had an objection.

       Before Peyton testified, the trial court held a conference outside of the jury’s

       presence on the issue of the phone calls. The State told the court that there

       were two jail phone calls comprising a total of thirty minutes but that it only

       intended to play a portion of the first phone call and short excerpts from the

       second call. Kyle objected to the State admitting the excerpt of the first phone

       call in which Peyton, while talking to Kyle, said: “Well, N.P. said, ‘Even

       though [Kyle] did do it, can you go tell them that he didn’t do it?’” (Tr. 180).

       Kyle argued that this was a prior consistent statement that bolstered N.P.’s

       credibility before N.P. testified. In response, the State agreed to introduce only

       the three excerpts from the second jail phone call. The court asked Kyle

       whether he had any objection to “playing the second part of that tape?” and

       Kyle responded “No, your Honor.” (Tr. 186).


[14]   Later during Peyton’s testimony, before the State played the three excerpts from

       the second phone call to the jury, the court held a bench conference. During

       this conference, the State reaffirmed: “Yeah. I’m only planning on playing the

       second jail phone call, the parts that—those three things that I have previously

       stated.” (Tr. 204). Kyle responded, “That would be fine[.]” (Tr. 205).

       Subsequently, the trial court questioned Kyle again, asking: “You are saying

       Court of Appeals of Indiana | Opinion 20A03-1507-CR-969| May 12, 2016     Page 8 of 13
       you have no objection to admitting the three snippets from this call?” (Tr. 205).

       Kyle responded: “I have no objection to the three snippets. The other I still

       maintain my objection to.” (Tr. 205).


[15]   In light of these exchanges, it is clear that Kyle did not object to the admission

       of the three excerpts of the second jail phone call that the State published to the

       jury. He maintained his objection to the first jail phone call, which the court

       did not admit, but not to the excerpts from the second phone call. Accordingly,

       we conclude that Kyle has waived his challenge to the audio excerpts by failing

       to object to their admission at trial. See Johnson, 725 N.E.2d at 867 (Ind. 2000)

       (stating that a trial counsel’s failure to object to the admission of evidence

       waives an error for appellate review).


[16]   Waiver notwithstanding, we are not persuaded by Kyle’s Evidence Rule 404(b)

       argument. As stated above, Kyle asserts that the jail phone calls were

       inadmissible because they were offered to show his criminal propensity, which

       Rule 404(b) prohibits. While Rule 404(b) provides that prior actions may be

       admissible for purposes other than to show criminal propensity, such as motive

       or intent, Kyle notes that the State never articulated a Rule 404(b) exception

       that applied to the phone calls. However, we conclude that the phone calls

       were admissible under Rule 404(b) because the conversations were not “prior”

       acts; they were intrinsic to Kyle’s charged offenses.


[17]   Indiana Evidence Rule 404(b) provides that:




       Court of Appeals of Indiana | Opinion 20A03-1507-CR-969| May 12, 2016      Page 9 of 13
        Evidence of other crimes, wrongs, or acts, is not admissible to
        prove the character of a person in order to show action in
        conformity therewith. It may, however, be admissible for other
        purposes, such as proof of motive, intent, preparation, plan,
        knowledge, identity, or absence of mistake or accident, provided
        that upon request by the accused, the prosecution in a criminal
        case shall provide reasonable notice in advance of trial . . . of the
        general nature of any such evidence it intends to introduce at
        trial.

The rationale behind Rule 404(b) is that the jury is precluded from making the

forbidden inference that the defendant had a criminal propensity and therefore

engaged in the charged conduct. Cowan v. State, 783 N.E.2d 1270, 1275 (Ind.

Ct. App. 2003). However, our supreme court has determined that Rule 404(b)

does not bar the admission of evidence of uncharged criminal acts that are

“intrinsic” to the charged offense. Lee v. State, 689 N.E.2d 435, 439 (Ind. 1997).

“Intrinsic,” in this context, refers to those offenses occurring at the same time

and under the same circumstances as the crimes charged. Cowan, 783 N.E.2d at

1275; cf. United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995) (“When the

other crimes or wrongs occurred at different times and under different

circumstances from the offense charged, the deeds are termed ‘extrinsic.’”)

Evidence of such conduct is admissible because it does not concern “other”

crimes, wrongs, or acts, and it is not offered for the purpose of creating an

inference as to the accused’s character or propensity. See Evid. R. 404(b); Lee,

689 N.E.2d at 439; Weyls v. State, 598 N.E.2d 610, 613-14 (Ind. Ct. App. 1992),

trans. denied. Notably, acts by persons other than the defendant may be relevant

and admissible as intrinsic acts. Blankenship v. State, 462 N.E.2d 1311, 1313


Court of Appeals of Indiana | Opinion 20A03-1507-CR-969| May 12, 2016       Page 10 of 13
       (Ind. 1984). Also, admissibility of all intrinsic evidence depends solely on the

       balance between the probative value of the evidence and the risk of unfair

       prejudice. See Ware v. State, 816 N.E.2d 1167, 1175 (Ind. Ct. App. 2004).


[18]   Here, the audiotaped jail phone conversations admitted at trial were evidence of

       conduct that was intrinsic to Kyle’s offense—his attempts to get Peyton to

       convince N.P. to change his story. These actions were inseparable from Kyle’s

       charged offense as he was attempting to cover up N.P.’s disclosure of

       molestation, which was the primary evidence that he had committed the

       offense. The evidence did not concern any of Kyle’s “other” wrongdoings and

       was not offered as evidence of his character or propensity. Thus, the evidence

       was admissible under Rule 404(b).


[19]   Nevertheless, we must balance whether the probative value of the evidence

       outweighed the risk that its admission would cause unfair prejudice to Kyle.

       See id. Simply put, evidence is “probative” if it is “relevant.” Shane v. State, 716

       N.E.2d 391, 398 (Ind. 1999). In turn, evidence is considered “relevant” under

       Evidence Rule 401 if: “(a) it has any tendency to make a fact more or less

       probable than it would be without the evidence; and (b) the fact is of

       consequence in determining the action.” (emphasis added). The determination

       of whether there is a risk of unfair prejudice depends on “‘the capacity of the

       evidence to persuade by illegitimate means, or the tendency of the evidence to

       suggest decision on an improper basis.’” Camm v. State, 908 N.E.2d 215, 224

       (Ind. 2009) (quoting Ingram v. State, 715 N.E.2d 405, 407 (Ind. 1999)).



       Court of Appeals of Indiana | Opinion 20A03-1507-CR-969| May 12, 2016     Page 11 of 13
[20]   We have previously noted that evidence of a defendant’s attempts to “cover up”

       his offense are probative of guilt. See Scifres-Martin v. State, 635 N.E.2d 218, 220

       (Ind. Ct. App. 1994) (“The manufacture, destruction, or suppression of

       evidence may be properly considered by the jury as an admission of the

       defendant’s guilt or his guilty knowledge.”) Here, that evidence was highly

       probative as the conversations directly linked Kyle to his attempted cover up.

       The jury was entitled to hear this highly probative evidence of his attempts to

       tamper with a child witness’s testimony. Accordingly, we conclude that the

       probative nature of the evidence outweighed its risk of unfair prejudice.


[21]   Next, Kyle argues that the trial court abused its discretion by admitting

       Peyton’s testimony that she was convicted of assisting a criminal. He asserts

       that this testimony amounted to improper, indirect vouching for N.P.’s

       credibility that was prohibited by Indiana Evidence Rule 704(b) because it

       implied that Kyle had already been adjudicated a “criminal.” (Kyle’s Br. 8).


[22]   First, we must note that, as above, Kyle did not object to this testimony at trial

       and therefore waived his claim. See Allen v. State, 686 N.E.2d 760, 775 (Ind.

       1997) (holding that failure to object to testimony at trial waives any claim of

       error and allows otherwise inadmissible hearsay evidence to be considered for

       substantive purposes and to establish a material fact at issue), reh’g denied, cert.

       denied. Waiver notwithstanding, we also noted above that acts by persons other

       than the defendant may be relevant and admissible as intrinsic acts.

       Blankenship, 462 N.E.2d at 1313. For the same reasons that we concluded the

       jail phone conversations were admissible, we conclude that Peyton’s conviction

       Court of Appeals of Indiana | Opinion 20A03-1507-CR-969| May 12, 2016      Page 12 of 13
       for her attempts to tamper with N.P.’s story was admissible. The jail phone call

       excerpts that the State introduced demonstrated that Kyle had directed the

       actions that led to Peyton’s conviction, and the jury was entitled to hear this

       probative evidence that Peyton had followed through with Kyle’s instructions

       to cover up his crime. Her actions were inseparable from Kyle’s offense.

       Accordingly, we conclude that the trial court did not abuse its discretion in

       admitting either the jail phone calls or Peyton’s testimony that she was

       convicted of assisting a criminal.


[23]   Affirmed.


       Kirsch, J., and Riley, J., concur.




       Court of Appeals of Indiana | Opinion 20A03-1507-CR-969| May 12, 2016    Page 13 of 13
