MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                      Sep 28 2018, 10:30 am
regarded as precedent or cited before any
court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Daniel K. Whitehead                                      Curtis T. Hill
Yorktown, Indiana                                        Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana


                                              IN THE
       COURT OF APPEALS OF INDIANA

Glen A. Carnahan,                                        September 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-90
        v.                                               Appeal from the Madison Circuit Court
                                                         The Honorable Mark Dudley, Judge
State of Indiana,
                                                         Trial Court Cause No.
Appellee-Plaintiff                                       48C06-1605-F4-938




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-90 | September 28, 2018               Page 1 of 9
                                             Case Summary
[1]   Glen A. Carnahan appeals his convictions, following a jury trial, for one count

      of class C felony child molesting and one count of level 4 felony child

      molesting. The dispositive issue presented for our review is whether the trial

      court abused its discretion in excluding certain evidence. Concluding that the

      trial court indeed abused its discretion and impacted Carnahan’s substantial

      rights, we reverse and remand for a new trial.


                                 Facts and Procedural History
[2]   The facts most favorable to the jury’s verdict indicate that C.D. was born on

      July 22, 2007. Carnahan is C.D.’s mother’s former stepfather, and C.D.

      referred to him as his “papaw.” Tr. Vol. 1 at 209. At the age of two, C.D.

      began residing with Carnahan and Carnahan’s daughter, Daisha, because both

      of C.D.’s parents were incarcerated, and Daisha obtained legal custody of C.D.

      During that time, on more than one occasion, Carnahan touched C.D. on the

      belly, back, “butt,” and “pee-pee.” Id. at 210. Carnahan touched C.D. under

      his clothes with his hand. When touching C.D.’s “pee-pee,” Carnahan would

      “play[] with it and squeeze[] and stuff like that.” Id. at 214. Carnahan would

      also squeeze C.D.’s “butt.” Id. The touching occurred multiple times at

      Carnahan’s house, in his upstairs bedroom. The first touching occurred when

      C.D. was six years old, and the last touching occurred around April of 2015.


[3]   C.D. moved back in with his mother in December 2015. C.D. began

      inappropriately touching his mother’s girlfriend’s five-year-old son, and he also


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-90 | September 28, 2018   Page 2 of 9
      inappropriately touched his eight-year-old stepsister. C.D. eventually told his

      mother what Carnahan had done to him. C.D.’s mother immediately called the

      police.


[4]   On May 12, 2016, the State charged Carnahan with two counts of level 4 felony

      child molesting. The State later amended the information and charged

      Carnahan with one count of class C felony child molesting and one count of

      level 4 felony child molesting. Both amended counts involved victim C.D.; one

      count alleged that Carnahan committed child molesting between July 1, 2013,

      and June 30, 2014, and the other count alleged that he committed child

      molesting between July 1, 2014, and December 31, 2015. Thereafter, the State

      again amended the information. The State alleged that Carnahan committed

      class C felony child molesting against C.D. between July 22, 2013 and June 30,

      2014, and level 4 felony child molesting against C.D. between July 1, 2014 and

      December 25, 2015.


[5]   A jury trial was held on November 15 and 16, 2017. The jury found Carnahan

      guilty as charged. The court sentenced him to concurrent terms of six years on

      the class C felony and nine years on the level 4 felony. This appeal ensued.


                                     Discussion and Decision

      Section 1 – The trial court abused its discretion and committed
              reversible error in excluding certain evidence.
[6]   Carnahan asserts that the trial court abused its discretion and committed

      reversible error in excluding certain evidence. We review the trial court’s

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-90 | September 28, 2018   Page 3 of 9
      exclusion of evidence only for an abuse of discretion. Wilson v. State, 765

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

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

      circumstances presented. Hardiman v. State, 726 N.E.2d 1201, 1203 (Ind. 2000).

      Even if a trial court errs in its evidentiary ruling, we will not overturn the

      conviction if the error is harmless. Appleton v. State, 740 N.E.2d 122, 124 (Ind.

      2001). An error is harmless when it results in no prejudice to the substantial

      rights of a party. Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018).


[7]   During trial, Carnahan sought to admit extrinsic evidence that C.D. had made

      a prior statement to his aunt Daisha that was inconsistent with his trial

      testimony. Carnahan sought to introduce this evidence during cross-

      examination of C.D. by first asking C.D. generally about a conversation he had

      with Daisha, and then about the specific prior statement in which C.D.

      allegedly recanted his molestation claims. The State objected to Carnahan’s

      attempt to question C.D. about the specific statement, and the trial court

      sustained the objection. After C.D. was done testifying, Carnahan informed the

      trial court that he wanted to introduce testimony from Daisha regarding C.D.’s

      alleged prior inconsistent statement. After a lengthy discussion outside the

      presence of the jury, the trial court conceded that it had erroneously sustained

      the State’s objection during Carnahan’s cross-examination of C.D., and that

      Carnahan should have been permitted to confront C.D. with the prior

      statement. Nevertheless, the court determined that Daisha was precluded from

      testifying regarding the statement, and further that Carnahan would not be


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-90 | September 28, 2018   Page 4 of 9
       permitted to recall C.D. to the stand for any reason. Carnahan then made an

       offer to prove during which Daisha testified that C.D. told her that Carnahan

       had never touched him inappropriately.


[8]    On appeal, Carnahan asserts that the trial court abused its discretion in

       excluding Daisha’s testimony. We agree.


[9]    Indiana Evidence Rule 613(b) states in relevant part:


               Extrinsic evidence of a witness’s prior inconsistent statement is
               admissible only if the witness is given an opportunity to explain
               or deny the statement and an adverse party is given an
               opportunity to examine the witness about it, or if justice so
               requires. This subdivision does not apply to an opposing party’s
               statement under 801(d)(2).


[10]   In Griffith v. State, 31 N.E.3d 965 (Ind. 2015), our supreme court looked to the

       approach taken by federal courts interpreting Federal Rule of Evidence 613(b)

       and determined that the requirement that a witness be given an opportunity to

       explain or deny a prior inconsistent statement may be afforded to that witness

       at any point during the proceedings. Id. at 972. The court explained, however,

       that “confronting a witness with his inconsistent statement prior to its

       introduction into evidence” is the “preferred method of proceeding.” Id.

       (citation omitted). The court reasoned that this approach “avoids the risk that a

       witness may become unavailable as the trial proceeds and consequently could

       not be recalled to explain or deny the prior statement.” Id. Additionally, the

       Griffith court recognized that “the preferred approach may make it easier for a


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-90 | September 28, 2018   Page 5 of 9
       jury to understand the context of the intended impeachment.” Id. The court

       went on to explain:


                Despite this preferred method, trial courts are still given broad
                discretion in excluding or admitting extrinsic evidence under
                Rule 613(b). We encourage trial courts to consider a variety of
                relevant factors in making the determination to admit or exclude
                extrinsic evidence, such as the availability of the witness, the
                potential prejudice that may arise from recalling a witness only
                for impeachment purposes, the significance afforded to the
                credibility of the witness who is being impeached, and any other
                factors that are relevant to the interests of justice.


       Id.


[11]   We conclude that the trial court here abused its discretion in excluding Daisha’s

       testimony regarding C.D.’s alleged prior inconsistent statement. First, the

       significance of C.D.’s credibility cannot be overstated. The State’s case against

       Carnahan rested entirely upon C.D.’s uncorroborated testimony.1 In other

       words, it was essentially C.D.’s word against Carnahan’s. Therefore, Daisha’s

       impeachment testimony was critical to Carnahan’s defense. Second, the trial

       court was responsible, due to its erroneous ruling sustaining the State’s

       objection, for Carnahan’s failure to follow the “preferred method” of

       confronting C.D. with the statement when he was originally on the witness

       stand. Id. There is nothing in the record to indicate that C.D. was




       1
        Indeed, during closing argument, the State made this telling statement to the jury: “If you believe C.D., the
       defendant is guilty.” Tr. Vol. 3 at 27.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-90 | September 28, 2018                    Page 6 of 9
       subsequently unavailable to testify, and the State failed to establish any

       potential prejudice that would have arisen from recalling C.D. as a witness to

       give him an opportunity to explain or deny the statement.2 Based upon the

       circumstances and the sequence of events at trial, and in the interests of justice,

       the trial court should have rectified this situation by permitting Daisha to testify

       regarding the alleged statement made to her by C.D., and then giving the State

       the opportunity to recall C.D. to the stand to explain or deny the statement. See

       id. at 971. The trial court’s failure to do so was an abuse of discretion.


[12]   Moreover, the trial court’s error in this regard was not harmless. The erroneous

       exclusion of evidence does not require a reversal if “its probable impact on the

       jury, in light of all of the evidence in the case, is sufficiently minor so as not to

       affect the defendant’s substantial rights.” Vasquez v. State, 868 N.E.2d 473, 477

       (Ind. 2007). As stated above, C.D.’s credibility was central to this case. Thus,

       the exclusion of Daisha’s testimony impeaching that credibility significantly

       affected Carnahan’s substantial rights. Accordingly, we reverse Carnahan’s

       convictions.


           Section 2 – The evidence is sufficient to support Carnahan’s
                            class C felony conviction.
[13]   We briefly address Carnahan’s sufficiency of the evidence argument simply to

       dispel any question as to the State’s ability to retry him on both charges.



       2
        The trial court denied C.D. the opportunity to explain or deny the prior statement by ruling that neither
       party could recall him as a witness.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-90 | September 28, 2018                   Page 7 of 9
       Carnahan concedes that the State presented sufficient evidence to support his

       level 4 felony child molesting conviction but asserts that the State presented

       insufficient evidence to support his class C felony child molesting conviction.

       The entirety of his argument is that the specific commission date of the offense

       covered by the class C felony charge is not clear from C.D.’s testimony.

       However, given that time is not of the essence in child molesting cases except in

       limited circumstances not applicable here, we do not find the evidence to be

       insufficient due to any failure by the State to prove the specific date of the

       offense alleged in the information. Barger v. State, 587 N.E.2d 1304, 1307 (Ind.

       1992) (exact date becomes important only where victim’s age at time of offense

       falls at or near dividing line between classes of felonies).3


[14]   The general rule is that retrial of a defendant is permissible when the

       convictions are reversed on grounds other than sufficiency of the evidence.

       Calvert v. State, 14 N.E.3d 818, 823 (Ind. Ct. App. 2014). Because we reverse

       Carnahan’s convictions on the basis that the trial court erred when it excluded

       evidence, the State may retry Carnahan.




       3
         Carnahan’s argument is that the State failed to prove that he committed child molesting during the time
       frame alleged in the information for the class C felony. See Appellant’s App. Vol. 2 at 50 (alleging that “[o]n
       or between July 22, 2013, and June 30, 2014,” Carnahan, “with a child under fourteen years of age,
       specifically, C.D., performed or submitted to any fondling or touching, of either the child or himself, with
       intent to arouse or to satisfy the sexual desires of either the child or himself”). Contrary to Carnahan’s
       assertion, C.D. unequivocally testified that Carnahan molested him multiple times, and that he was six years
       old when the molestations began, and around nine years old when they ended. C.D. would have been six
       years old between July 22, 2013, and June 30, 2014. The only reason the specific time frame has any
       relevance here, in turn causing the State to charge Carnahan differently for each molestation offense, was due
       to amendments to Indiana criminal statutes as of July 1, 2014. See Ind. Code § 35-42-4-3(b) (changing the
       crime of child molesting from a class C to a level 4 felony).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-90 | September 28, 2018                   Page 8 of 9
[15]   Reversed and remanded for a new trial.


       Najam, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-90 | September 28, 2018   Page 9 of 9
