MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                  Apr 24 2017, 9:23 am
this Memorandum Decision shall not be
                                                                            CLERK
regarded as precedent or cited before any                               Indiana Supreme Court
                                                                           Court of Appeals
court except for the purpose of establishing                                 and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bruce W. Graham                                          Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana

                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Mark D. Speer,                                           April 24, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A02-1606-CR-1342
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         79D02-1410-FA-15



Altice, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CR-1342 | April 24, 2017           Page 1 of 10
[1]   Following a jury trial, Mark D. Speer was convicted of attempted child

      molesting as a Class A felony and child molesting as a Class C felony. Speer

      was sentenced to an aggregate term of forty-two years imprisonment. Speer

      presents two issues for our review:


              1. Is the charging information alleging attempted child molesting
              legally insufficient?


              2. Is the evidence sufficient to sustain his conviction for
              attempted child molesting?


[2]   We affirm.


                                       Facts & Procedural History


[3]   On July 29, 2014, authorities obtained a warrant to search a residence in

      Lafayette, Indiana. At the time the warrant was served, Speer and his

      girlfriend, Rebecca Kaster, lived at that residence. During the search an officer

      obtained Speer’s cell phone, which was then given to the Indiana State Police

      where another officer extracted data from the phone. Among the data were six

      videos that had been recorded on September 13, 2013.


[4]   The first video was recorded in Speer’s living room and shows a naked three-

      year-old girl eating an ice cream bar. Speer is heard saying: “Oh, she’s

      beautiful”; “Look at that pretty little butt”; and “Oh my God, I’ve already got

      her naked.” State’s Exhibit 26, VIDEO0041:20-30. At points in the first video,

      the camera focuses on the girl’s vagina and buttocks. In the third video, which

      was recorded in an upstairs bedroom, Speer is heard telling the naked girl that
      Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CR-1342 | April 24, 2017   Page 2 of 10
      she is pretty before he places a blindfold over the girl’s face. The girl

      immediately protests and tells Speer to take it off, which he does. In the fourth

      video, Speer’s phone is propped up and the camera is focused on the girl, who

      is naked and playing a guitar. Speer asks the girl if she wants to play the guitar

      upside down and he then grabs her around the waist and turns her upside down

      such that his face is near her vagina. Despite the girl’s protests, Speer keeps

      turning her upside down as he did in the first instance until she screams to be

      put down.


[5]   Finally, in the sixth video, the girl remains naked and is jumping up and down

      on the bed in Speer’s bedroom. Speer lays his phone down such that the girl is

      still within view of the camera. He then leans over the child while she is laying

      on her back on the bed completely naked. In a seemingly playful manner,

      Speer covers the girl’s face with a pillow. Speer then leans over the exposed

      lower half of the girl’s body, but a pillow blocks Speer’s face from the camera.

      Seconds later, the girl’s muffled screams telling Speer to stop can be heard.

      Speer does not move his head or say anything for approximately six seconds.

      As Speer lifts his head, a sucking sound can be heard. The child again tells

      Speer to get off of her belly and he responds, saying “that isn’t your belly.”1




      1
        While the words are not completely clear from the audio, we find this to be a substantively accurate
      transcription of what Speer said. The State, during its opening statement, told the jury that Speer said, “That
      isn’t your belly!” Transcript Vol. 1 at 13. In closing, the State argued that he said, “That’s not your belly!”
      Transcript Vol. 2 at 143. Speer did not object to either characterization at trial, and he quotes the first of these
      in his brief.

      Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CR-1342 | April 24, 2017                  Page 3 of 10
      State’s Exhibit 26, VIDEO0046:45. He then asks her if it “tickle[d]” and acts

      surprised when she says it did not. Id. at VIDEO0046:59-1.01.


[6]   It took weeks for the police to determine the identity of the girl in the video.

      Eventually, Kaster, who initially denied that she knew the girl’s identity, told

      the police that the girl was a co-worker’s daughter that she had babysat at

      Speer’s home on September 13, the day the videos were created. Kaster

      explained that she left the girl in Speer’s care for approximately twenty-five

      minutes while she took a second child down to a creek.


[7]   On October 29, 2014, the State charged Speer with Count I, attempted child

      molesting as a Class A felony, Count II, child molesting as a Class C felony,

      and Count III, criminal confinement as a Class C felony. An initial hearing

      was held shortly after the charges were filed and an omnibus date for late

      August 2014 was assigned. The initial jury trial was scheduled for late October

      2015, but was continued on at least two occasions. A two-day jury trial

      commenced on April 26, 2016, at the conclusion of which the jury found Speer

      guilty as charged. The trial court held a sentencing hearing on May 17, 2016, at

      which the court sentenced Speer to forty-two years on Count I and a concurrent

      term of seven years on Count II. The trial court determined that Count III

      merged with Count I, and thus did not enter judgment thereon. Speer now

      appeals. Additional facts will be provided as necessary.


                                          Discussion & Decision


                                           1. Charging Information

      Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CR-1342 | April 24, 2017   Page 4 of 10
[8]    Speer argues that the charging information alleging attempted child molesting is

       defective because it fails to allege the statutory enhancement raising the offense

       to a Class A felony. Specifically, Speer argues that the State failed to allege an

       essential element of the elevated offense, i.e., that he attempted to engage in

       deviate sexual conduct.


[9]    The charging information for Count I, attempted child molesting as a Class A

       felony, provides in pertinent part as follows:

               On or about September 13, 2013, in Tippecanoe County, State of
               Indiana, Mark D. Speer, did knowingly or intentionally attempt
               to commit the crime of Child Molesting, by engaging in conduct
               which constituted a substantial step towards the commission of
               said offense, to wit: on September 13, 2013, Mark D. Speer
               and/or [child] removed the clothing being worn by [child]; Speer
               positioned [child]’s body in such a way that her exposed genitals
               and anus were near his face; Speer appears to hold [child] down
               on a bed while his head appears to be over the lower half of
               [child]’s body; with Mark D. Speer, a person at least twenty-one
               (21) years of age, to wit: forty-three (43) years of age; and with
               [child], a child under fourteen (14) years of age, to wit: three (3)
               years of age.


               All of which is contrary to the statute in such cases made and
               provided, to wit: Indiana Code 35-42-4-3(a)(1) [2014] and 35-41-
               5-1, and against the peace and dignity of the State of Indiana.


       Appellant’s Appendix Vol. II at 18.


[10]   An information “shall be a plain, concise, and definite written statement of the

       essential facts constituting the offense charged.” Ind. Code § 35-34-1-2(d). The


       Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CR-1342 | April 24, 2017   Page 5 of 10
       purpose of a charging information is “‘to provide a defendant with notice of the

       crime of which he is charged so that he is able to prepare a defense.’” Gilliland

       v. State, 979 N.E.2d 1049, 1060 (Ind. Ct. App. 2012) (quoting State v. Laker,

       939 N.E.2d 1111, 1113 (Ind. Ct. App. 2010), trans. denied). The State is not

       required to include detailed factual allegations; rather, a charging information

       satisfies due process if the information “enables an accused, the court, and the

       jury to determine the crime for which conviction is sought.” Id. at 1061

       (quoting Dickenson v. State, 835 N.E.2d 542, 550 (Ind. Ct. App. 2005)).


[11]   Because Speer did not file a motion to dismiss the charging information on

       sufficiency grounds,2 the State argues that Speer has waived his claim. See

       Wilhoite v. State, 7 N.E.3d 350, 352 (Ind. Ct. App. 2014). To avoid waiver,

       Speer argues that the charging information was so lacking that it constitutes

       fundamental error. Fundamental error is error so prejudicial to the rights of a

       defendant that a fair trial is rendered impossible. Thomas v. State, 61 N.E.3d

       1198, 1201 (Ind. Ct. App. 2016), trans. denied. To be considered fundamental

       error, an error must “constitute a blatant violation of basic principles, the harm,

       or potential for harm is substantial, and the resulting error must deny the

       defendant fundamental due process.” Spears v. State, 811 N.E.2d 485, 488 (Ind.

       Ct. App. 2004).




       2
           Over eighteen months elapsed between the filing of the charging information and the start of his jury trial.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CR-1342 | April 24, 2017                Page 6 of 10
[12]   Here, the State included some detailed factual allegations that it would seek to

       prove to the trier of fact as being the substantial step toward commission of the

       crime. In doing so, the State provided Speer with sufficient information to

       apprise him of the charge he would have to defend. Additionally, the State

       cited to the specific statutory provision that defined of Class A felony child

       molesting.


[13]   Even assuming that the charging information was erroneous, any claim of error

       does not rise to the level of fundamental error. Speer cannot establish that a fair

       trial was impossible based on the alleged defective information. In addition to

       providing the jury with a verbatim account of the charging information for

       attempted child molesting, the court also gave Final Instruction 2.01, which

       defined the crime of attempted child molesting as a Class A felony, including

       the requirement that the defendant “knowingly performed sexual intercourse or

       deviate sexual conduct.” Appellant’s Appendix Vol. II at 105. Another final

       instruction given to the jury defined the term deviate sexual conduct as used in

       Final Instruction 2.01. The jury was well aware of the crime for which the

       conviction was sought.


[14]   Further, Speer makes no claim that he was misled by the charging information.

       He also makes no claim that his defense at trial was prejudiced by the charging

       information’s alleged deficiency. In fact, Speer provided a vigorous defense to

       the charge at trial. Speer has not established fundamental error.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CR-1342 | April 24, 2017   Page 7 of 10
[15]   Speer’s claim that there was a material variance between the charging

       information and the proof at trial likewise fails. This claim requires either a

       showing that the defendant was misled and prejudiced thereby or that there is a

       risk of future double jeopardy problems. See Daniels v. State, 957 N.E.2d 1025,

       1030 (Ind. Ct. App. 2011). Speer has made no argument about being misled in

       his defense or future double jeopardy issues.


                                                         Sufficiency


[16]   Speer argues that the evidence is insufficient to support his conviction for

       attempted child molesting as a Class A felony.3 Specifically, he contends that

       the jury was asked to engage in pure speculation in determining whether he

       took a substantial step toward engaging in deviate sexual conduct.


[17]   In reviewing a challenge to the sufficiency of the evidence, we neither reweigh

       the evidence nor judge the credibility of witnesses. Atteberry v. State, 911 N.E.2d

       601, 609 (Ind. Ct. App. 2009). Instead, we consider only the evidence

       supporting the conviction and the reasonable inferences flowing therefrom. Id.

       If there is substantial evidence of probative value from which a reasonable trier

       of fact could have drawn the conclusion that the defendant was guilty of the

       crime charged beyond a reasonable doubt, the judgment will not be disturbed.

       Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008). It is not

       necessary that the evidence overcome every reasonable hypothesis of



       3
           Speer does not challenge his conviction for child molesting as a Class C felony.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CR-1342 | April 24, 2017   Page 8 of 10
       innocence; rather, the evidence is sufficient if an inference may reasonably be

       drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144, 147

       (Ind. 2007). To sustain Speer’s conviction for attempted child molesting as a

       Class A felony, the State was required to prove, in part, that Speer knowingly or

       intentionally took a substantial step toward engaging in deviate sexual conduct

       with the child. I.C. § 35-42-4-3(a)(1) (2014) (child molesting);4 Ind. Code § 35-

       41-5-1 (attempt). Deviate sexual conduct is an act involving “a sex organ of

       one (1) person and the mouth or anus of another person[] or (2) the penetration

       of the sex organ or anus of a person by an object.” 5 Ind. Code § 35-31.5-2-94

       (2014).


[18]   Here, the conduct at issue is depicted in the sixth video that was extracted from

       Speer’s phone. In that video Speer is recording the naked three-year-old girl

       jumping around on a bed. After the girl falls to the bed and is lying exposed in

       a horizontal position behind a pillow, Speer covers her face with another pillow

       and then leans over the lower-half of the girl’s body, his face obscured by a

       pillow. Speer’s head does not move for approximately six seconds, all the while

       muffled screams from the girl for Speer to stop can be heard. As Speer stands

       upright, a sucking sound can be heard. The girl again tells Speer to get off of




       4
         Child molesting is now a Level 1 felony if committed by a person at least 21 years old against a child less
       than 14 years old and the act is “sexual intercourse or other sexual conduct.” I.C. § 35-42-4-3(a).
       5
        Speer committed his crimes in September 2013—before the repeal of the deviate sexual conduct definition
       and replacement with the term “other sexual conduct.” “Other sexual conduct” has an identical definition as
       deviate sexual conduct previously had. See Ind. Code § 35-31.5-2-221.5.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CR-1342 | April 24, 2017              Page 9 of 10
       her belly and he responds, saying “that isn’t your belly.” State’s Exhibit 26,

       VIDEO0046:45. He then asks the girl if it “tickle[d]” and acts surprised when

       she says it did not. Id. at VIDEO0046:59-1.01. In addition to this video, the

       State presented five other videos made during the same timeframe that were

       extracted from Speer’s phone. In the videos Speer recorded the naked girl,

       focusing particularly on her buttocks and vaginal areas. Speer is heard making

       crude comments and expressing excitement over the girl in her state of undress.


[19]   The State presented sufficient evidence from which the jury could have

       concluded that Speer knowingly took a substantial step toward engaging in

       deviate sexual conduct with the naked three-year-old child. Speer’s conviction

       for attempted child molesting as a Class A felony is affirmed.


[20]   Judgment affirmed.


       Riley, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1606-CR-1342 | April 24, 2017   Page 10 of 10
