MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                 Jul 19 2019, 9:01 am

court except for the purpose of establishing                                    CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Zachary J. Stock                                          Curtis T. Hill, Jr.
Zachary J. Stock, Attorney at Law, P.C.                   Attorney General of Indiana
Indianapolis, Indiana
                                                          Henry A. Flores, Jr.
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles Dugger,                                           July 19, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1902
        v.                                                Appeal from the Hendricks
                                                          Superior Court
State of Indiana,                                         The Honorable Mark A. Smith,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          32D04-1503-FA-1



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1902 | July 19, 2019                     Page 1 of 15
[1]   Charles Dugger appeals his convictions of four counts of Class A felony child

      molesting, 1 two counts of Class B felony child molesting, 2 one count of Class C

      felony child molesting, 3 one count of Class A felony vicarious sexual

      gratification, 4 and one count of Class B felony vicarious sexual gratification. 5

      He presents two issues for our review, which we restate as:


                 1. Whether the trial court abused its discretion when it denied
                 Dugger’s motion to dismiss based on speedy trial grounds; and


                 2. Whether the trial court abused its discretion when it denied
                 Dugger’s motion for mistrial.


      We affirm.


                                Facts and Procedural History
[2]   In 1993, while on probation for multiple child molesting convictions, Dugger

      resided with his wife and five children. Two of the children were Dugger’s

      children and the other three were his stepchildren. Dugger would often be left

      alone with the children while his wife worked. During that time, Dugger

      committed sexual acts against two of his minor stepdaughters and one of their




      1
          Ind. Code § 35-42-4-3 (1986).
      2
          Ind. Code § 35-42-4-3 (1986).
      3
          Ind. Code § 35-42-4-3 (1986).
      4
          Ind. Code § 35-42-4-5 (1986).
      5
          Ind. Code § 35-42-4-5 (1986).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1902 | July 19, 2019   Page 2 of 15
      friends. The children eventually reported this behavior to Dugger’s wife, who

      contacted police.


[3]   On September 20, 1993, the State 6 charged Dugger with eighteen counts of

      child molesting. Police could not arrest Dugger because he had left Indiana and

      traveled to Arizona. On November 20, 1993, Dugger was arrested in Arizona

      and charged with sexual assault, sexual conduct with a minor, and child

      molesting based on an incident involving a ten-year-old girl in Arizona. Dugger

      was convicted in Arizona and sentenced to twenty years incarcerated.


[4]   In 1997, while incarcerated in Arizona, Dugger sought disposition of the 1993

      charges pursuant to the Interstate Agreement on Detainers. Indiana accepted

      temporary custody of Dugger and began his transport to Indiana. En route,

      Dugger escaped. Dugger was later arrested in Minnesota and charged with

      escape, auto theft, and assault. Dugger was convicted in Minnesota and

      sentenced to three years incarcerated. In 1998, Dugger was transported back to

      Arizona to complete his sentence there.


[5]   In 2002, the State filed a motion to dismiss the 1993 charges against Dugger

      without prejudice because he would be incarcerated in Arizona and Minnesota

      until 2015. The trial court granted the State’s motion and Dugger did not

      appeal. In 2013, Dugger completed his sentence in Arizona and was




      6
       The State also filed a petition for an order revoking probation in November 1993. The petition was
      amended in 2013 to address Dugger’s 1993 violations. Upon finding Dugger’s 1993 arrest violated his
      probation, he was ordered to serve 2912 days incarcerated following his sentence for the 1993 crimes.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1902 | July 19, 2019                   Page 3 of 15
      transported to Minnesota to complete his sentence there. In November 2014,

      Dugger completed his sentence in Minnesota and was transported to Indiana to

      answer for the probation violations from 1993.


[6]   In March 2015, the State charged Dugger with nine counts of Class A felony

      child molesting and two counts of Class A felony vicarious sexual gratification.

      On July 7, 2015, Dugger filed a motion to dismiss the charges against him

      because they violated his right to a speedy trial. The trial court denied Dugger’s

      motion to dismiss. Dugger filed a request for certification of the issue for

      interlocutory appeal, which the trial court also denied. After multiple

      continuances, Dugger’s first trial began on November 6, 2017. According to

      the Chronological Case Summary, Dugger filed a motion for mistrial the same

      day, after some of the evidence was presented, and the trial court granted his

      motion for mistrial. 7


[7]   Dugger’s second trial began on May 14, 2018. On the second day of trial, one

      of Dugger’s victims made an unsolicited comment regarding Dugger’s

      incarceration. Dugger moved for a mistrial, and the trial court denied the

      motion. The trial court indicated it would make an admonishment, but Dugger

      refused. At the end of the jury trial, the trial court entered convictions of four

      counts of Class A felony child molesting, two counts of Class B felony child

      molesting, one count of Class C felony child molesting, one count of Class A




      7
          The record does not indicate the reason Dugger’s motion for mistrial was granted in his first jury trial.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1902 | July 19, 2019                         Page 4 of 15
      felony vicarious sexual gratification, and one count of Class B felony vicarious

      sexual gratification. The trial court sentenced Dugger to an aggregate term of

      seventy years incarcerated.



                                 Discussion and Decision
                                               Speedy Trial
[8]   Our standard of review in cases involving a criminal defendant’s motion to

      dismiss is well-settled:


              A defendant has the burden of proving, by a preponderance of
              the evidence, all facts necessary to support a motion to dismiss.
              Townsend v. State, 793 N.E.2d 1092, 1093 (Ind. Ct. App. 2003),
              trans. denied. When a party appeals from a negative judgment,
              we will reverse the trial court’s ruling only if the evidence is
              without conflict and leads inescapably to the conclusion that the
              party was entitled to dismissal. Id.


      Johnson v. State, 810 N.E.2d 772, 775 (Ind. Ct. App. 2004), trans. denied. When,

      as here, the motion to dismiss is premised on a question of law, our review is de

      novo and we owe no deference to the trial court’s legal conclusions.

      Montgomery v. State, 14 N.E.3d 76, 78 (Ind. Ct. App. 2014).


[9]   The Sixth Amendment to the United States Constitution provides, in relevant

      part, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a

      speedy and public trial.” Similarly, Article 1, Section 12 of the Indiana

      Constitution provides, in relevant part, that “[j]ustice shall be administered

      freely, and without purchase; completely, and without denial; speedily, and

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1902 | July 19, 2019   Page 5 of 15
       without delay.” Our analysis of an alleged speedy trial violation is the same

       whether the violation is claimed under the federal or state constitution. Logan v.

       State, 16 N.E.3d 953, 961 (Ind. 2014). To determine if a defendant has been

       deprived of his right to a speedy trial, we consider four factors set forth in Barker

       v. Wingo, 407 U.S. 514, 530 (1972): (1) the length of the delay; (2) the reason(s)

       for the delay; (3) whether the defendant asserted his right to a speedy trial; and

       (4) the prejudice to the defendant. See Crawford v. State, 669 N.E.2d 141, 145

       (Ind. 1996) (applying Barker factors). We consider each of these factors as

       applied to the facts before us.


                                                Length of Delay

[10]   Dugger argues that the delay for purposes of his speedy trial analysis should

       date back to 1993, when the charges were originally filed prior to his

       abscondence to Arizona and subsequent criminal activity resulting in

       incarceration there. However, in 2002, after Dugger escaped custody en route

       to Indiana from Arizona and committed additional crimes in Minnesota, the

       State was granted a motion to dismiss the 1993 charges against Dugger because

       Dugger was scheduled to be incarcerated in Arizona until 2015. Dugger did

       not appeal the grant of that motion to dismiss.


[11]   The facts here parallel those in U.S. v. MacDonald, 456 U.S. 1 (1982). In that

       case, MacDonald was charged with the murder of his wife and two children by

       a military court in 1970. Id. at 4. Later that year, the charges against

       MacDonald were dismissed by the commanding general and MacDonald was

       honorably discharged from the Army. Id. at 5. Five years later, in 1975, a
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1902 | July 19, 2019   Page 6 of 15
       civilian court charged MacDonald with the murders of his wife and two

       children. Id. MacDonald filed a motion to dismiss based on the delay in

       prosecution, which was denied. Id. MacDonald was ultimately convicted of

       the murders and sentenced to three consecutive terms of life imprisonment. Id.


[12]   On appeal, MacDonald argued the delay in prosecution violated the Speedy

       Trial Clause of the Sixth Amendment. The United States Supreme Court

       disagreed, holding the Speedy Trial Clause of the Sixth Amendment “does not

       apply to the period before a defendant is indicted, arrested or otherwise

       officially accused[.]” Id. at 6. Additionally, “the Speedy Trial Clause has no

       application after the Government, acting in good faith, formally drops charges.”

       Id. at 7. The Court noted the Speedy Trial Clause


               is designed to minimize the possibility of lengthy incarceration
               prior to trial, to reduce the lesser, but nevertheless substantial
               impairment of liberty imposed on an accused while released on
               bail, and to shorten the disruption of life caused by arrest and the
               presence of unresolved criminal charges.


               Once charges are dismissed, the speedy trial guarantee is no
               longer applicable. At that point, the formerly accused is, at most,
               in the same position as any other subject of a criminal
               investigation. Certainly the knowledge of an ongoing criminal
               investigation will cause stress, discomfort, and perhaps a certain
               disruption in normal life. This is true whether or not charges
               have been filed and then dismissed. This was true in Marion,
               where the defendants had been subjected to a lengthy
               investigation which received considerable press attention. But
               with no charges outstanding, personal liberty is certainly not
               impaired to the same degree as it is after arrest while charges are
               pending. After the charges against him have been dismissed, “a
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1902 | July 19, 2019   Page 7 of 15
                citizen suffers no restraints on his liberty and is [no longer] the
                subject of public accusation: his situation does not compare with
                that of a defendant who has been arrested and held to answer.”
                United States v. Marion, 404 U.S. [307,] 321, 92 S.Ct. [455,] 463
                [(1971)].


                Following dismissal of charges, any restraint on liberty,
                disruption of employment, strain on financial resources, and
                exposure to public obloquy, stress and anxiety is no greater than
                it is upon anyone openly subject to a criminal investigation.


       Id. at 8 - 9 (footnote omitted). Applying the holding in MacDonald, 8 we

       conclude the relevant timeframe for our analysis is from March 2015, when the

       charges were refiled, to November 2017, when Dugger was tried.


                                                Reason(s) for Delay

[13]   After charges were refiled in March 2015, Dugger requested and was granted

       three continuances. In addition, two weeks before the first trial date in January

       2017, Dugger requested and was granted the appointment of a special

       investigator at State’s expense. One time, the court continued the trial on its

       own motion. Finally, immediately prior to the second trial date in June 2017,

       the court ordered a continuance of the trial and indicated, “State is charged

       with continuance.” (App. Vol. II at 15.) Based on the fact that the majority of

       the continuances were attributable to Dugger, we conclude he was primarily




       8
         While Dugger’s liberty remained constrained after the dismissal of the 1993 charges, we conclude
       MacDonald is applicable because the dismissal put him in the same position as any other person in his specific
       situation under criminal investigation. That he was incarcerated on other charges is of no relevance.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1902 | July 19, 2019                     Page 8 of 15
       responsible for the delay between his arrest and trial date. See State v. Lindauer,

       105 N.E.3d 211, 215-6 (Ind. Ct. App. 2018) (delay in trial attributable to

       defendant after defendant requested and was granted five continuances), trans.

       denied.


                             Defendant’s Assertion of Speedy Trial Right

[14]   In his motion to dismiss, Dugger indicated he was entitled to dismissal of the

       charges against him because the State violated his right to a speedy trial. On

       appeal, Dugger has not made an argument regarding this Barker factor. We

       conclude, therefore, that this factor weighs neutrally.


                                            Prejudice to Defendant

[15]   Prejudice to the defendant based on a delay of trial is evaluated based on: (1)

       prevention of oppressive pretrial incarceration; (2) minimization of anxiety and

       concern of the accused; and (3) limitation of impairment of accused’s defense.

       Barker, 504 U.S. at 532. Dugger’s argument regarding this factor focuses on the

       third interest - the limitation of his defense. He argues, “the delay prejudiced

       his defense because various sources of information had been cut off by the

       passage of time, including alibi evidence provided by long-lost records and now

       deceased witnesses, and there was ample opportunity for the distortion of

       memory.” (Br. of Appellant at 15.)


[16]   Again, Dugger’s argument focuses on the time prior to his 2015 arrest, which

       we have determined not to be relevant to our analysis. He has not indicated

       how the two-year delay between his arrest and trial prejudiced him. However,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1902 | July 19, 2019   Page 9 of 15
       “[a] delay of more than one year is presumed prejudicial.” Bowman v. State, 884

       N.E.2d 917, 921 (Ind. Ct. App. 2008), reh’g denied, trans. denied. Nevertheless,

       as the State notes, any passage in time, generally, actually favored Dugger’s

       defense because many witnesses could not remember exact details of Dugger’s

       crimes against them.


[17]   Considering the balance of all four Barker factors, we conclude the trial court

       did not abuse its discretion when it denied Dugger’s motion to dismiss based on

       a violation of his right to a speedy trial because the relevant time frame did not

       begin until his arrest in 2015, he was primarily responsible for the delay in trial

       dates thereafter, and he suffered no prejudice from the delay. See id. (right to

       speedy trial not violated when trial delayed for over four years at fault of

       defendant and defendant did not demonstrate prejudice).


                                                    Mistrial
[18]   Dugger also asserts the court abused its discretion when it denied his motion for

       mistrial based on testimony he alleged violated a motion in limine. A mistrial

       is an “extreme remedy warranted only when no other curative measure will

       rectify the situation.” Kirby v. State, 774 N.E.2d 523, 533 (Ind. Ct. App. 2002),

       reh’g denied, trans. denied.


               Because the trial court evaluates first-hand the relevant facts and
               circumstances at issue and their impact on the jury, it is in the
               best position to evaluate whether a mistrial is warranted. We
               accordingly review the trial court’s denial of a motion for mistrial
               for an abuse of discretion.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1902 | July 19, 2019   Page 10 of 15
       Weisheit v. State, 26 N.E.3d 3, 15 (Ind. 2015) (internal citations omitted), reh’g

       denied, cert. denied 136 S. Ct. 901 (2016). The court abuses its discretion when

       its decision is “clearly against the logic and effect of the facts and circumstances

       before the court.” Vaughn v. State, 971 N.E.2d 63, 68 (Ind. 2012). “[R]eversal is

       required only if the defendant demonstrates that he was so prejudiced that he

       was placed in a position of grave peril.” Oliver v. State, 755 N.E.2d 582, 584

       (Ind. 2001).


[19]   During Dugger’s trial, when asked what she remembered about incidents

       involving Dugger when she was five years old, A.W. testified:


               I remember him making me and my brother take a shower with
               him. And I do remember him telling uh, me I don’t know about
               my other siblings, uh, not to tell my mom because I remember
               for the longest time I didn’t - we didn’t say anything to my mom
               and it wasn’t until - I remember we lived in Plainfield when I did
               finally tell my mom but then I also remember we moved to
               Bloomington and he moved with us and it wasn’t not [sic] long
               after that when he went to prison.


       (Tr. Vol. III at 118.) 9 Dugger did not object. The State then stated, “Now let’s

       stay focused on what transpired in this case. Uh, do you - I just want to come

       back to that question. Did he ever threaten to hurt you in any way to get you to

       not tell anyone about what he was doing to you?” (Id.) A.W. answered “I




       9
         Dugger also claims A.W. called him a “monster” earlier in her testimony, but he does not cite that portion
       of the record. As we have long held that our court “will not search the record to find a basis for a party’s
       argument,” Young v. Butts, 685 N.E.2d 147, 151 (Ind. Ct. App. 1997), we will not address Dugger’s argument
       regarding that comment.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1902 | July 19, 2019                  Page 11 of 15
       don’t remember.” (Id.) The State indicated it was ready to pass the witness for

       cross-examination and Dugger requested a brief recess.


[20]   After the jury was excused, Dugger asked the court to declare a mistrial based

       on A.W.’s comment that Dugger went to prison, which was a violation of the

       motion in limine prohibiting any testimony regarding Dugger’s criminal

       history. The Court decided to take the matter under advisement, asked the

       parties to file briefs on the motion for mistrial, and Dugger cross-examined

       A.W. The next day, after the State rested its case, the trial court addressed

       Dugger’s motion for mistrial:


               Uh, the first thing we want to deal with is the Defense’s motion
               for mis-trial from yesterday. I did have a chance to review both
               briefs that were filed as well as all the case law and I’m going to
               deny the motion at this time after considering the evidence and
               the testimony and reviewing transcript of the - of the witness
               testimony yesterday and the cases and briefs that were filed. The
               testimony was isolated and not repeated. I didn’t find any
               deliberate action by the State to try and elicit that testimony. Uh,
               you know obviously there’s testimony through other - through
               other witnesses, uh, with regard to the charges. There’s other
               evidence of guilt from which the jury can find guilt through other
               witness testimony besides the witness who made the disclosure. I
               recognize the Defense’s concern but weighing all those factors
               I’ve decided to - to deny the motion for mis-trial at this time.


       (Id. at 176.) The court and parties discussed other matters, and then the

       conversation returned to the trial court’s decision regarding Dugger’s motion

       for mistrial:



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1902 | July 19, 2019   Page 12 of 15
               [Defense Counsel]: . . . I had not - I had not, uh, excluded the
               possibility of an admonition at any point in our conversations
               yesterday. However, having said that I - I do not wish -


               [Court]:         Okay.


               [Defense Counsel]: - to have an admonition and I -


               [Court]:      I guess I should make it clear on the record. I - I
               didn’t find that there was a waiver. I mean I know that that was
               a discussion that we had yesterday but I forgot to ask her just a
               few minutes ago if you wanted an admonition or not. I was
               going to give you one if you wanted it but obviously you’ve made
               it clear you didn’t but I wanted to be clear that that was not the
               basis of my denial. I didn’t find that there was a waiver of that
               issue.


               [Defense Counsel]: I’m afraid that would simply highlight and
               emphasize the evidence.


       (Id. at 181-2.)


[21]   The facts here are almost identical to those in Frentz v. State, 875 N.E.2d 453

       (Ind. Ct. App. 2007), trans. denied. In that case, Frentz requested a mistrial after

       a witness, Turner, testified: “I got a hold of [an officer] to begin with because

       [Frentz] was talkin’ about havin’ Chuck [Woolsey, a person alleged to be dating

       Frentz’s girlfriend] killed.” Id. at 467. Based on a motion in limine wherein the

       court granted Frentz’s motion that his request to kill Chuck not be mentioned,

       Frentz requested a mistrial. Id. at 468. The trial court denied Frentz’s motion

       and “said it would issue an admonishment, if requested.” Id. Like here,


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1902 | July 19, 2019   Page 13 of 15
       Frentz’s counsel did not request an admonishment, and the trial court did not

       give one. Id.


[22]   Our court determined Frentz had waived the issue for our review because he

       had rejected the court’s offer of an admonishment. Id. However, waiver

       notwithstanding, our court held the trial court did not abuse its discretion when

       it denied Frentz’s motion for mistrial because “[t]here is no indication that the

       State deliberately elicited Turner’s nonresponsive answer, and Frentz’s plan to

       kill Woolsey was never mentioned again during the lengthy trial.” Id. The

       same is true here.


[23]   Dugger has waived our review of the denial of his motion for mistrial because

       he rejected the trial court’s offer of an admonishment. See Boyd v. State, 430

       N.E.2d 1146, 1149 (Ind. 1982) (Boyd’s refusal of the trial court’s offer of an

       admonishment following his motion for mistrial based on his belief that “doing

       so would cause greater emphasis to be given to the statement” waived his

       argument of error in the denial of his motion for mistrial). Waiver

       notwithstanding, like in Frentz, the State did not elicit A.W.’s comment about

       Dugger’s incarceration and Dugger’s time in prison was not mentioned again

       during trial. We therefore conclude the trial court did not abuse its discretion

       when it denied Dugger’s motion for mistrial.



                                               Conclusion


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1902 | July 19, 2019   Page 14 of 15
[24]   Dugger’s right to a speedy trial was not violated based on the Barker factors, and

       the trial court did not abuse its discretion when it denied Dugger’s motion for

       mistrial. Accordingly, we affirm his convictions.


[25]   Affirmed.


       Mathias, J,. and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1902 | July 19, 2019   Page 15 of 15
