                                                                  Feb 12 2015, 6:47 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Mark K. Leeman                                             Gregory F. Zoeller
Leeman Law Offices                                         Attorney General of Indiana
Logansport, Indiana
                                                           Brian Reitz
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Kevin Townsend,                                           February 12, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          09A02-1407-CR-464
        v.                                                Appeal from the Cass Superior Court
                                                          The Honorable Richard A.
State of Indiana,                                         Maughmer, Judge
                                                          Cause No. 09D02-0911-FA-12
Appellee-Plaintiff.




Brown, Judge.




Court of Appeals of Indiana | Opinion 09A02-1407-CR-464 | February 12, 2015              Page 1 of 20
[1]   Kevin Townsend appeals his convictions for vicarious sexual gratification as a

      class B felony and possession of child pornography as a class D felony.

      Townsend raises two issues, which we revise and restate as:


            I.     Whether the evidence is sufficient to sustain his conviction of

                   vicarious sexual gratification;1 and


           II.     Whether his right to compulsory process was violated when the trial

                   court excluded a witness from testifying.


      We affirm.


                                       Facts and Procedural History

[2]   The facts favorable to the conviction reveal that, in December 2008, thirteen-

      year-old S.W. lived with her grandmother in Tennessee. During her school

      Christmas break that year, S.W. traveled to Logansport, Indiana, to visit her

      mother. The boyfriend of S.W.’s mother had a sister named Amy Spampinato,

      who had two on-again-off-again boyfriends, Townsend and Lawrence Gill.

      Townsend worked as a truck driver and drove throughout the country, and he




      1
       Townsend does not challenge the sufficiency of the evidence for his possession of child pornography
      conviction.

      Court of Appeals of Indiana | Opinion 09A02-1407-CR-464 | February 12, 2015                    Page 2 of 20
      would stay with Spampinato on the weekends when he was in town. Gill also

      sometimes stayed with Spampinato.


[3]   S.W. met Townsend during her December visit and had seen him with

      Spampinato before. Earlier that spring, Spampinato threw a joint birthday

      party at Chuck E. Cheese’s for one of her daughters and S.W. and had separate

      birthday cakes for each girl, and S.W.’s cake had thirteen candles on it. S.W.

      told Townsend during her visit in December that she was thirteen. At that

      time, Townsend was twenty-six years old and Spampinato was twenty-eight

      years old.


[4]   During S.W.’s visit, Townsend became interested in S.W. and told Spampinato

      he wanted to have sexual contact with S.W., specifically stating that he

      “wanted to eat her pussy.” Transcript at 177. He “repeatedly” asked that

      Spampinato approach S.W. to see if S.W. would have sexual contact with him.

      Id. When asked, S.W. told Spampinato that “she didn’t want anything like

      that.” Id. Also, while Spampinato was in the shower, Townsend asked S.W. to

      let him perform oral sex on her and that she should “let [him] do it now while

      [Spampinato] is in the shower;” S.W. refused and turned away when Townsend

      tried to kiss her. Id. at 36.


[5]   On another day that December, Spampinato sent S.W. upstairs to wake

      Townsend, and when she did he looked up at her, reached out his arm, lifted

      S.W.’s shirt to expose her skin, and began rubbing her side. S.W. walked out of

      the room and was “scared” and “nervous,” and she “didn’t know what to


      Court of Appeals of Indiana | Opinion 09A02-1407-CR-464 | February 12, 2015   Page 3 of 20
      think.” Id. at 40-41. S.W. told Spampinato about Townsend’s advances, but

      “it didn’t matter” to Spampinato. Id. at 41.


[6]   On either the 28th or 29th of December 2008, S.W. and her cousin C.S., who

      was also visiting Logansport and had turned fourteen years old several days

      before Christmas, went to spend the night at Spampinato’s house. Before they

      went, S.W. told C.S. about Townsend’s advances, they discussed whether to

      stay with Spampinato, and they decided to go to Spampinato’s because

      Townsend was not going to be there. After S.W. and C.S. arrived at

      Spampinato’s house, the three drove to Dollar General to purchase garbage

      bags, and Spampinato received a phone call from Townsend. While they were

      talking, C.S. stated that she was bi-sexual, which Townsend heard. He

      confirmed with Spampinato what C.S. stated, and told Spampinato to “work

      something out.” Id. at 180. Townsend told her specifically that he wanted her

      “to set up to have a threesome with the girls and to satisfy them until he got

      home,” and to “perform sex acts on them that would make them happy so that

      they would stay there until he got there.” Id. at 180-181. Townsend also told

      Spampinato that she “better make them happy until he got there or else” and

      she “better not mess this up like [she does] everything else.” Id. at 181, 190.

      Townsend planned to have sex with S.W. and C.S. when he returned. Id. at

      181.


[7]   Later that evening, Spampinato, S.W., and C.S. drove to a drugstore, where

      Spampinato purchased vodka, and then to a grocery store, where Spampinato

      purchased orange juice. They returned home, went upstairs to Spampinato’s

      Court of Appeals of Indiana | Opinion 09A02-1407-CR-464 | February 12, 2015   Page 4 of 20
      bedroom, and began mixing orange juice and vodka drinks. S.W. and C.S.

      both drank “[a] lot” of alcohol and became intoxicated. Id. at 55, 89.


[8]   At one point, Spampinato gave C.S. black lingerie to try on and began taking

      pictures of C.S. in the lingerie with the camera on her cell phone. S.W. also

      tried on the lingerie, and Spampinato took pictures of her. Townsend requested

      that Spampinato send the pictures to his cell phone, and Spampinato did so.

      “[R]ight after” the photographs were taken, Townsend, who had pulled his

      semitrailer truck into a parking lot in Kentucky for the night, began speaking on

      the phone with Spampinato, and he continued to speak on the phone with

      Spampinato, S.W., and C.S. during the remaining events that night. Id. at 109.

      Townsend told S.W. and C.S. that he wished he could be there with them, and

      he told C.S. that “he wanted to eat [her] out.” Id. at 90. While on the phone

      with Spampinato, Townsend told Spampinato “exactly what he wanted [her] to

      do” to the girls, including performing oral sex on the girls and to use a vibrator

      on them that Townsend had recently purchased for her. Id. at 190.


[9]   The girls began trying on more of Spampinato’s clothes, and they were

      “drinking and drinking, laughing, you know, just hanging out,” and then things

      “switched up” and S.W. “ended up lying on the bed and her pants were off . . .

      .” Id. at 57-58. At one point, a pornographic video started playing on

      Spampinato’s television. Spampinato began taking pictures of S.W.’s and

      C.S.’s vaginas and sent them to Townsend. Spampinato made a video on her

      cell phone and attempted to send it to Townsend, but he did not receive it.

      After the cell phone video failed to send, Townsend told Spampinato to use a

      Court of Appeals of Indiana | Opinion 09A02-1407-CR-464 | February 12, 2015   Page 5 of 20
       camcorder she had in her bedroom “to record what was going on so that he

       could see it when he got home.” Id. at 185.


[10]   Spampinato touched S.W.’s vagina and inserted her fingers into S.W.’s vagina.

       She also put her fingers inside C.S.’s vagina. Spampinato then retrieved a

       vibrator Townsend had given her days earlier and used it on C.S. by placing it

       in C.S.’s vagina. At one point while C.S. was speaking to Townsend on the

       phone, S.W. asked C.S. to hang up with Townsend and Spampinato stated:

       “no, he’ll like that.” Exhibit 2b at 4:10. Soon after, S.W. inserted the vibrator

       into C.S.’s vagina, and while this was occurring Spampinato was speaking to

       Townsend and stated: “Right now she’s playing. Yea she’s using my toy on

       [C.S.].” Id. at 7:05-7:15. Afterward, S.W. was speaking to Townsend on the

       phone and laughed and told him “I’m friggin’ scared,” and she told C.S. not to

       “record it and send it to [Townsend] because I’m talking to him right now.” Id.

       at 9:00-9:15. Spampinato used the vibrator on S.W. and asked her “does it feel

       good,” but she stopped because she was afraid she would hurt S.W. Transcript

       at 66. S.W. then told Spampinato “this is done,” stood up, and went into the

       bathroom. Id. at 65. Spampinato then hung up the phone with Townsend and

       went to bed. S.W. became sick and threw up for the rest of the night, and she

       woke up on the floor “laying face down in some puke” the next morning. Id.


[11]   S.W. and C.S. left Spampinato’s house the next day, and Townsend returned

       after they had left. Townsend asked Spampinato for the camcorder and also

       why the girls were not there. When Spampinato told him the girls had gone

       back to stay with S.W.’s brother, Townsend became angry and told her that she

       Court of Appeals of Indiana | Opinion 09A02-1407-CR-464 | February 12, 2015   Page 6 of 20
       “didn’t do something right. That is was [her] fault they weren’t there.” Id. at

       191-192. Townsend then took the camcorder to the bathroom and began

       masturbating while he watched the video. After he finished watching the video,

       Townsend called Spampinato upstairs and began yelling at her for not doing

       “exactly what he told [her] to do” and told her that she “was a f--- up and

       couldn’t do nothing right and he should have put a bullet in [her] head a long

       time ago.” Id. at 193.


[12]   On March 6, 2009, Spampinato’s other boyfriend, Gill, found the video made

       with the camcorder and turned it over to Logansport Police Detective Brad

       Miller. Detective Miller obtained a search warrant for Spampinato’s residence

       on March 9, 2009, and during the search he located the vibrator used in the

       video, as well as the receipt showing its purchase on December 22, 2008, and he

       arrested Spampinato. About a week after Spampinato was arrested, Townsend

       called one of his friends, William Ryan, and told Ryan about the video and that

       he had “told the stupid b---- to get rid of the tape.” Id. at 152. Townsend also

       stated he was concerned because S.W. could identify him.


[13]   The State filed initial charges against Townsend on November 12, 2009, and on

       January 24, 2011, the State filed an amended information charging Townsend

       with Count I, conspiracy to commit child molestation as a class A felony;

       Count II, conspiracy to commit sexual misconduct with a minor as a class B

       felony; Count III, vicarious sexual gratification as a class B felony; Count IV,

       conspiracy to commit child exploitation as a class C felony; Count V,

       possession of child pornography as a class D felony; and Count VI, child

       Court of Appeals of Indiana | Opinion 09A02-1407-CR-464 | February 12, 2015   Page 7 of 20
       solicitation as a class D felony. On January 26, 2011, the court commenced a

       jury trial at which Townsend requested a separation of witnesses, and the court

       granted his request and informed all in the courtroom that anyone present as a

       possible witness was required to wait outside the courtroom until he or she was

       called to testify.


[14]   In its case in chief the State presented the testimony of S.W., C.S., Spampinato,

       Detective Miller, Gill, and Ryan, each of whom testified consistent with the

       foregoing. The court also admitted into evidence the video Spampinato made

       using the camcorder. After the State had finished calling its witnesses,

       Townsend requested that Ashley Jackson, who had been present in the

       courtroom for almost the entire trial and was sitting on “the side [of] the

       defendant,” be added to the witness list and be permitted to testify. Id. at 229.

       The trial court denied the request because Jackson had violated the separation

       of witnesses order and because she was not on a witness list, stating specifically

       that “[t]ypically what would happen is I think I would allow you to do that

       after a [sic] State an opportunity to continue its---to prepare for her, you know

       take a recess or whatever, but I can’t under this circumstance.” Id. The court

       then allowed Townsend to make an offer to prove what Jackson would state if

       allowed to testify. Jackson testified that she was in jail with Spampinato and

       that, between January 23 and March 18 of 2010, Spampinato told her on more

       than one occasion that “in order to have her plea reduced . . . she would have to

       bring [Townsend] down to make herself look better.” Id. at 231. Jackson

       indicated that this was the first time she had told anyone involved in the case


       Court of Appeals of Indiana | Opinion 09A02-1407-CR-464 | February 12, 2015   Page 8 of 20
       about this conversation. She also admitted she was attending the trial in

       support of Townsend. The court again denied Townsend’s request to permit

       Jackson to testify.


[15]   On January 27, 2011, the jury found Townsend guilty of Count III, vicarious

       sexual gratification as a Class B felony, and Count V, possession of child

       pornography as a class D felony, and not guilty of the remaining charges. On

       February 28, 2011, the court held a sentencing hearing and sentenced

       Townsend to concurrent sentences of ten years on Count III and eighteen

       months on Count V. On June 20, 2014, the court granted Townsend’s verified

       motion for permission to file a belated notice of appeal, and this appeal ensued.


                                                     Discussion

                                                           I.


[16]   The first issue is whether the evidence is sufficient to sustain Townsend’s

       conviction of vicarious sexual gratification. When reviewing claims of

       insufficiency of the evidence, we do not reweigh the evidence or judge the

       credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g

       denied. Rather, we look to the evidence and the reasonable inferences therefrom

       that support the verdict. Id. We will affirm the conviction if there exists

       evidence of probative value from which a reasonable trier of fact could find the

       defendant guilty beyond a reasonable doubt. Id.


[17]   Ind. Code § 35-42-4-5 governs the crime of vicarious sexual gratification and

       provided in part at the time of the offense as follows:

       Court of Appeals of Indiana | Opinion 09A02-1407-CR-464 | February 12, 2015   Page 9 of 20
        A person eighteen (18) years of age or older who knowingly or
        intentionally directs, aids, induces, or causes a child under the age of
        sixteen (16) to:


                                               *****


                 (3) engage in deviate sexual conduct with another person;


        with intent to arouse or satisfy the sexual desires of a child or the older
        person commits vicarious sexual gratification, a Class C felony.
        However, the offense is a Class B felony if any child involved in the
        offense is less than fourteen (14) years of age . . . .


Ind. Code § 35-42-4-5(b) (Supp. 2003) (subsequently amended by Pub. L. No.

158-2013, § 441 (eff. July 1, 2014)). The State alleged, under Count III, that

        between December 24, 2008 and December 31, 2008 . . . Townsend, a
        person of at least eighteen (18) years of age, did knowingly or
        intentionally direct, aid, induce or cause S.W. (DOB 3/05/1995) a
        child under the age of fourteen (14) to engage in deviate sexual
        conduct with Amy Spampinato and C.S[.], with the intent to arouse or
        satisfy the sexual desires of [] Townsend or the child . . . .


Appellant’s Appendix at 99. Ind. Code § 35-31.5-2-94 provides that “[d]eviate

sexual conduct means an act involving: (1) 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.” Thus, to convict Townsend of vicarious sexual

conduct as a class B felony, the State needed to prove that he knowingly or

intentionally directed, aided, induced, or caused S.W. to engage in deviate

sexual conduct with Spampinato or C.S. with the intent to arouse either his or

S.W.’s sexual desires.

Court of Appeals of Indiana | Opinion 09A02-1407-CR-464 | February 12, 2015        Page 10 of 20
[18]   Townsend argues that that State did not present evidence that S.W. engaged in

       deviate sexual conduct, asserting that “[t]here was no evidence of oral sex or

       actual penetration of S.W. by an object.” Appellant’s Brief at 12. He maintains

       that assuming S.W. did engage in deviate sexual conduct, “Townsend’s

       conduct was not the cause of S.W.’s deviate acts.” Id. He argues specifically

       that if his “conduct caused S.W. to engage in deviate sexual conduct, he

       committed the crime; if someone else’s conduct causes the sexual acts, he is not

       guilty,” and cites to Micinski v. State, 487 N.E.2d 150, 154 (Ind. 1986), which

       concerned a driver under the influence of alcohol who left the scene of an

       accident resulting in bodily injury. Id. He asserts that “Spampinato directed

       and caused the sexual activity on the evening of December 29, 2008 – not

       [him],” and that although he “may have listened to Spampinato, S.W., and

       C.S. engage in sexual acts by phone, [] listening to sexual acts with an

       unfulfilled desire to participate is not the same as ‘directing, aiding, inducing, or

       causing’ sexual acts.” Id. at 12-13. Townsend also argues that “there was no

       evidence that [he] actually knew that S.W. was personally engaging in deviate

       sexual acts rather than just observing the sex acts of C.S. and Spampinato.” Id.

       at 13. He further asserts that the rule of lenity compels this court to construe

       Ind. Code § 35-42-4-5(b)(3) against the State, and that Spampinato’s testimony

       is incredibly dubious.


[19]   The State argues that “[a] finger is within the meaning of ‘an object’ for the

       purposes of deviate sexual conduct.” Appellee’s Brief at 14 (citing Harwood v.

       State, 555 N.E.2d 513, 515 (Ind. Ct. App. 1990), aff’d, 582 N.E.2d 359 (Ind.


       Court of Appeals of Indiana | Opinion 09A02-1407-CR-464 | February 12, 2015   Page 11 of 20
       1991), reh’g denied). The State asserts that Spampinato’s testimony is not

       incredibly dubious, noting that it was corroborated by both S.W. and C.S., as

       well as the video which was admitted at trial. The State asserts that to the

       extent Townsend suggests “he was not the cause of S.W.’s deviate sexual

       conduct because he was not present when the conduct took place,” he “was

       convicted of vicarious sexual gratification” and “did not need to personally

       participate or even be present . . . to be guilty of directing, aiding, inducing, or

       causing it to happen.” Id. at 15. The State also argues that, as the video

       recording demonstrates, “Townsend talked with S.W. on the phone several

       times during the night” and that his suggestion on appeal that he did not know

       that S.W. engaged in deviate sexual conduct is an invitation for this court to

       reweigh the evidence. Id. at 16.


[20]   To the extent Townsend asserts that the incredible dubiosity rule requires

       reversal of his convictions, we note that the rule applies only in very narrow

       circumstances. See Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). The rule is

       expressed as follows:

               If a sole witness presents inherently improbable testimony and there is
               a complete lack of circumstantial evidence, a defendant’s conviction
               may be reversed. This is appropriate only where the court has
               confronted inherently improbable testimony or coerced, equivocal,
               wholly uncorroborated testimony of incredible dubiosity. Application
               of this rule is rare and the standard to be applied is whether the
               testimony is so incredibly dubious or inherently improbable that no
               reasonable person could believe it.


       Id.

       Court of Appeals of Indiana | Opinion 09A02-1407-CR-464 | February 12, 2015   Page 12 of 20
[21]   Townsend suggests that Spampinato “gave conflicting answers on whether

       Townsend knew the ages [sic] of S.W.” between her prior statement and her

       testimony at trial and that her testimony is incredibly dubious because her

       testimony was the result of a negotiated plea. Such arguments, however, are

       issues of witness credibility. The function of weighing witness credibility lies

       with the trier of fact, not this court. Whited v. State, 645 N.E.2d 1138, 1141

       (Ind. Ct. App. 1995). We cannot reweigh the evidence or judge the credibility

       of the witnesses. See Jordan, 656 N.E.2d at 817. We also observe that in

       addition to the testimony of Spampinato, the State presented the testimony of

       S.W. and C.S., as well as the testimony of Spampinato’s ex-boyfriend Lawrence

       Gill, Townsend’s friend William Ryan, and Detective Miller. Further, the State

       admitted into evidence a video depicting the sexual acts and testimony that

       Townsend was on the phone while such acts occurred. During his testimony,

       Townsend did not deny that he was on the phone during the filming of the

       video. We cannot say that the incredible dubiosity rule applies to his case.


[22]   Moreover, the State presented evidence that Townsend, after overhearing on

       the phone that C.S. was bi-sexual, told Spampinato to “work something out,”

       specifically directing her “to set up to have a threesome with the girls and to

       satisfy them until he got home,” and to “perform sex acts on them that would

       make them happy so that they would stay there until he got there.” Transcript

       at 180-181. He specifically ordered Spampinato to do what she could to keep

       the girls at her house “or else,” and he spoke with both S.W. and C.S. while the

       sexual acts were occurring. Id. at 181. Townsend told S.W. that he wished he


       Court of Appeals of Indiana | Opinion 09A02-1407-CR-464 | February 12, 2015   Page 13 of 20
       could be there with them, and he told Spampinato “exactly what he wanted

       [her] to do” to the girls, including performing oral sex on the girls and to use the

       vibrator he had recently purchased for her on them. Id. at 190.


[23]   Also, the video admitted into evidence demonstrates that while S.W. was

       engaging in deviate sexual conduct by placing the vibrator in C.S.’s vagina,

       Townsend was speaking with Spampinato and heard what was transpiring in

       the bedroom. Afterward, S.W. was speaking to Townsend on the phone and

       laughed and told him “I’m friggin’ scared.” Exhibit 2b at 9:00-9:05. The next

       day, Townsend returned to Spampinato’s house, retrieved the camcorder, and

       took it into the bathroom to view the video while masturbating. Based upon

       the record, we conclude that the inferences made by the jury that Townsend

       knowingly or intentionally directed, aided, induced, or caused S.W. to engage

       in deviate sexual conduct with Spampinato or C.S. with the intent to arouse

       either his or S.W.’s sexual desires were not unreasonable and that evidence of

       probative value exists from which the jury could have found beyond a

       reasonable doubt that Townsend committed vicarious sexual gratification.


                                                           II.


[24]   The next issue is whether Townsend’s right to compulsory process was violated

       when the trial court excluded a witness from testifying. The Sixth Amendment

       to the United States Constitution “guarantees a defendant the right to present

       witnesses on his behalf.” Farris v. State, 818 N.E.2d 63, 69 (Ind. Ct. App. 2004),

       trans. denied. However, “while the right to present witnesses is of the utmost


       Court of Appeals of Indiana | Opinion 09A02-1407-CR-464 | February 12, 2015   Page 14 of 20
       importance, it is not absolute.” Id. (quoting Roach v. State, 695 N.E.2d 934, 939

       (Ind. 1998), aff’d on reh’g, 711 N.E.2d 1237 (Ind. 1999)). Trial courts “have the

       discretion to exclude a belatedly disclosed witness when there is evidence of bad

       faith on the part of counsel or a showing of substantial prejudice to the State.”

       Id. (quoting Williams v. State, 714 N.E.2d 644, 651 (Ind. 1999), cert. denied, 528

       U.S. 1170, 120 S. Ct. 1195 (2000)). In light “of a defendant’s right to

       compulsory process under the federal and state constitutions, there is a strong

       presumption to allow the testimony of even late-disclosed witnesses.” Id.


[25]   Townsend argues that “Jackson’s testimony was exculpatory, unique, and

       critical to the case.” Appellant’s Brief at 15. The State asserts that the issue is

       “more aptly considered as the trial court ruling on its separation-of-witnesses

       order” and that such determinations are “wholly within the discretion of the

       trial court.” Appellee’s Brief at 17 (citing Myers v. State, 887 N.E.2d 170, 190

       (Ind. Ct. App. 2008), reh’g denied, trans. denied). The State argues that

       “[b]ecause there is no meaningful way to measure the harmfulness of the

       education[al] value to a witness who sits through the other witnesses’ testimony

       before taking the stand, prejudice is presumed when a violation of a separation-

       of-witnesses order occurs . . . .” Id. at 17-18 (quoting Myers, 887 N.E.2d at 190).

       The State contends that Townsend cannot overcome the presumption here

       where Jackson “only decided to approach the defense to say she was willing to

       testify after being present for nearly the entire trial.” Id. at 18. The State also

       argues that, “even if analyzed as an issue of compulsory process, the trial court

       did not arbitrarily deny Townsend’s request,” and notes that the court took

       Court of Appeals of Indiana | Opinion 09A02-1407-CR-464 | February 12, 2015   Page 15 of 20
       reasonable steps to decide whether to allow Jackson to testify by allowing

       Townsend to make an offer to prove. Id. The State further argues that

       Jackson’s testimony was not material to Townsend’s defense and would not

       have created reasonable doubt, noting specifically that the jury knew that

       Spampinato had received a plea deal in return for her testimony at Townsend’s

       trial and that Jackson was not a credible witness. The State finally suggests that

       any error by the court in excluding Jackson’s testimony was harmless, noting

       that the State presented multiple witnesses and a video of the events.


[26]   In Farris, on the last day of trial defendant Farris sought to have Floyd Meeks,

       who had not been listed on either party’s witness list, testify. 818 N.E.2d at 68.

       Meeks had been listed in the charging information as a material witness. Id.

       He also had been present in the courtroom throughout the trial to that point.

       Id. “The State objected to Meeks testifying, arguing that his testimony was

       irrelevant and that it would violate the separation of witnesses order that had

       been in place since the beginning of the trial.” Id. Farris made an offer to prove

       in which Farris’s counsel stated that she had learned that individuals in the

       courtroom had overheard Meeks making previously-unknown statements

       which were material to Farris’s defense. Id. The court refused to allow Meeks

       to testify both because he had not been on Farris’s witness list and he had been

       present during the trial while a separation of witnesses order was in effect. Id.

       at 68-69.


[27]   This court concluded that the trial court abused its discretion on both grounds.

       First, regarding the court’s ruling to exclude Meeks’s testimony for failure to list

       Court of Appeals of Indiana | Opinion 09A02-1407-CR-464 | February 12, 2015   Page 16 of 20
       him as a witness, this court noted that “[t]here was no evidence presented at

       trial that Farris’ counsel had acted in bad faith” and that counsel “indicated that

       she had called Meeks but had been unable to find him.” Id. at 69. The court

       also observed that Meeks’s testimony would not have substantially prejudiced

       the State and that indeed the State had named Meeks as a material witness in its

       charging information. Id. We noted: “Even if Meeks’ testimony had

       prejudiced the State in some way, a continuance, rather than exclusion, would

       have been the appropriate remedy.” Id. Regarding the separation of witnesses

       order, the court noted long-standing Indiana Supreme Court precedent that it is

       “an abuse of discretion to refuse to permit the testimony of a witness due to a

       violation of a separation of witnesses order if the party seeking to call the

       witness is without fault in the violation.” Id. (quoting Jiosa v. State, 755 N.E.2d

       605, 607 (Ind. 2001)). The court held that the violation was not Farris’s fault

       because Meeks was not listed as a witness and that Farris’s counsel had been

       unable to locate Meeks and did not know what he looked like, and that

       accordingly the trial court abused its discretion. Id. The State also argued that

       Meeks’s testimony was irrelevant, but this court disagreed and concluded that

       relevancy would not have been a proper ground for excluding Meeks from

       testifying. Id.


[28]   Here, similarly, we find that the court abused its discretion when it excluded

       Jackson’s testimony. After Townsend asked that Jackson be allowed to testify,

       the court denied his request, ruling that “[t]ypically what would happen is I

       think I would allow you to do that after a [sic] State an opportunity to continue


       Court of Appeals of Indiana | Opinion 09A02-1407-CR-464 | February 12, 2015   Page 17 of 20
       its---to prepare for her, you know take a recess or whatever, but I can’t under

       this circumstance.” Transcript at 229. Just as in Farris, Jackson was not listed

       as a witness. Also, the level of fault on the part of Townsend’s counsel is even

       less here where Townsend’s counsel was not aware of the testimony Jackson

       could provide until that day. The record reveals that the separation of witnesses

       violation was the reason the court did not allow Jackson to testify and offered

       the State a continuance beforehand, and it did not make a finding of bad faith

       or substantial prejudice to the State. To the extent the State argues that

       Jackson’s testimony would not have been “material to the defense,” Appellee’s

       Brief at 19, we note that her testimony would have challenged the credibility of

       Spampinato and was thus relevant. Although Jackson’s testimony may have

       been of questionable credibility, it does not appear that the court excluded her

       testimony because its prejudicial impact outweighed its probative value. We

       therefore conclude it was an abuse of the court’s discretion to exclude Jackson’s

       testimony.


[29]   This does not end our analysis, however. “[W]e will find an error in the

       exclusion of evidence harmless 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.” Farris, 818 N.E.2d at 70 (quoting Williams, 714

       N.E.2d at 652). We find that the trial court’s exclusion of Jackson was

       harmless. Even assuming that the jury would have considered Jackson a

       credible witness, which is questionable in light of her impeachable criminal

       history and the fact that she was hardly an objective witness, at the trial


       Court of Appeals of Indiana | Opinion 09A02-1407-CR-464 | February 12, 2015   Page 18 of 20
       Spampinato testified that she had taken a plea agreement and was being housed

       in the Department of Correction. She indicated that as part of the plea

       agreement she had “to come in here and testify in this case” and that she was

       telling the truth at the trial. Transcript at 215. Also, as noted, the video

       admitted into evidence depicted S.W. engaging in deviate sexual conduct by

       inserting the vibrator in C.S.’s vagina, and while S.W. was doing so

       Spampinato was speaking with Townsend and stated: “Right now she’s

       playing. Yea she’s using my toy on [C.S.].” Exhibit 2b at 7:05-7:15. The

       prosecutor in her closing argument specifically pointed to this conduct when

       she argued that the jury should convict Townsend for vicarious sexual

       gratification, stating:

               [W]hen you are watching and you listen very carefully you can see
               how not only is the phone being passed around but people are talking.
               . . . [T]hey are talking back and forth not only to each other but to
               [Townsend] on the phone. . . . [T]here is a portion of the tape where
               [Spampinato] is on the phone. [S.W.] is using the vibrator on [C.S.]
               and [Spampinato] is describing to [Townsend] on the phone that [C.S.]
               and [S.W.] are playing with her toy. She called it a toy at that point
               and that there are a number of comments at that point that are being
               made to [Townsend] about the fact that [S.W.] is using---what [S.W.]
               and [C.S.] are doing at this time and you can also hear in the tape and
               in the video people are directing other people what to do. The whole
               time [Townsend] is on the phone and I believe based on the evidence
               that you’ve seen you can infer that he was a big part of this directing,
               aiding, inducing, or causing these events to happen.


       Transcript at 320-321.


[30]   While the trial court abused its discretion by excluding Jackson from testifying,

       this error was harmless. See Farris, 818 N.E.2d at 70 (holding that although the
       Court of Appeals of Indiana | Opinion 09A02-1407-CR-464 | February 12, 2015   Page 19 of 20
       trial court abused its discretion in excluding Meeks from testifying, such error

       was harmless because the evidence presented against the defendant was strong,

       and the accounts were supported by a surveillance video).


                                                     Conclusion

[31]   For the foregoing reasons, we affirm Townsend’s convictions for vicarious

       sexual gratification as a class B felony and possession of child pornography as a

       class D felony.


[32]   Affirmed.


       Bailey, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 09A02-1407-CR-464 | February 12, 2015   Page 20 of 20
