MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                 Nov 02 2018, 5:52 am
court except for the purpose of establishing
                                                                              CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jonathan D. Harwell                                     Curtis T. Hill, Jr.
Harwell Legal Counsel LLC                               Attorney General of Indiana
Indianapolis, Indiana
                                                        Matthew B. MacKenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

David Sanders,                                          November 2, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-684
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Kurt Eisgruber,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G01-1605-FA-19235



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-684 | November 2, 2018                   Page 1 of 10
                                          Case Summary
[1]   David Sanders molested his step-daughter B.D. approximately three times a

      week for a period of nearly ten years. He was subsequently charged with and

      found guilty of two counts of Class A felony child molesting, two counts of

      Class C felony child molesting, Class D felony child solicitation, and Class D

      felony child seduction. Sanders challenges his convictions on appeal, claiming

      that the State failed to disclose favorable evidence, the trial court abused its

      discretion in admitting certain evidence, and the evidence is insufficient to

      sustain his convictions. We affirm.



                            Facts and Procedural History
[2]   In 2003, when B.D. was six years old, her mother married Sanders. From that

      time forward, B.D. lived in a home with her mother, Sanders, and her siblings

      and step-siblings. At some point, Sanders began sexually molesting B.D. The

      abuse was frequent, occurring “probably at least three times a week” in either

      an office or the walk-in closet in the master bedroom. Tr. Vol. II p. 124. At

      first, the abuse consisted of “a lot of like touchy feely things.” Tr. Vol. II p.

      108. B.D. “would have to give [Sanders] hand jobs” before he would allow her

      certain privileges such as being allowed to go to a friend’s home. Tr. Vol. II p.

      108. Sanders made B.D. “jack him off,” remove her shirt, and “let him finish”

      on her chest. Tr. Vol. II p. 111.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-684 | November 2, 2018   Page 2 of 10
[3]   B.D. first reported the abuse while she was in second grade. One day, while she

      had a friend over, B.D. went downstairs to get a snack or a drink. As she was

      going back up the stairs, Sanders “flashed his penis at [her] and like shook it

      around and wanted [her] to come over.” Tr. Vol. II p. 113. B.D. continued up

      the stairs and reported Sanders’s behavior to her friend. B.D.’s friend told her

      parents who reported B.D.’s claims to B.D.’s parents. B.D. later recanted

      because she was “scared.” Tr. Vol. II p. 114.


[4]   While the abuse then stopped, it restarted approximately two years later. The

      abuse escalated to the point “where [Sanders] would put his hands in [B.D.’s]

      pants and put his fingers inside of [her vagina]” and “where he would give oral

      [sex] to [her].” Tr. Vol. II p. 116. Once B.D. reached middle school, Sanders

      “asked if [she] was ever going to have sex with him” and said “that other

      people in middle school are losing their virginities [sic] too already.” Tr. Vol. II

      pp. 120, 125. B.D. responded that she was “not losing [her] virginity to [her]

      step-dad.” Tr. Vol. II p. 120.


[5]   In April of 2013, when B.D. was a sophomore in high school, B.D.’s boyfriend

      joined the family on a vacation. When the family returned home, B.D.

      performed oral sex on Sanders in exchange for him allowing her boyfriend to

      accompany the family on their vacation. Although scared, B.D. tolerated the

      abuse because she did not want to ruin her mother’s or siblings’ lives. She also

      understood that subjecting herself to the abuse was the only way she could gain

      privileges from Sanders.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-684 | November 2, 2018   Page 3 of 10
[6]   In 2015, when B.D. was eighteen years old, Sanders asked B.D. to “flash” him

      in exchange for his help fixing a television. Tr. Vol. II p. 121. B.D. declined

      Sanders’s request. Later that day, B.D.’s boyfriend asked her why she was

      upset. B.D. “was just so upset that [Sanders] said that to [her] again,” and she

      was “old enough to finally realize that everything was wrong for so many years

      and that [the abuse] shouldn’t be happening.” Tr. Vol. II p. 122. At her

      boyfriend’s insistence, B.D. reported the abuse to her mother.


[7]   On May 19, 2016, the State charged Sanders with two counts of Class A felony

      child molesting, two counts of Class C felony child molesting, Class D felony

      child solicitation, and Class D felony child seduction. Sanders was found guilty

      as charged following a jury trial.1



                                   Discussion and Decision
[8]   In challenging his convictions, Sanders raises the following contentions: (1) the

      State failed to disclose favorable evidence in violation of the United States

      Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83, 87 (1963); (2) the

      trial court abused its discretion in admitting certain evidence; and (3) the

      evidence is insufficient to sustain his convictions.




      1
        There is some confusion as to the length of Sanders’s sentence. The trial court’s sentencing order indicates
      that Sanders was sentenced to an aggregate, forty-year term while the parties indicate that he was sentenced
      to an aggregate, thirty-year term.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-684 | November 2, 2018                   Page 4 of 10
                                  I. Alleged Brady Violation
[9]    Sanders contends that the State violated Brady by allegedly failing to disclose

       potentially contradicting audio statements made by its witnesses until the week

       prior to trial. In Brady, the Supreme Court held “the suppression by the

       prosecution of evidence favorable to an accused upon request violates due

       process where the evidence is material either to guilt or to punishment,

       irrespective of the good faith of the prosecution.” 373 U.S. at 87. Brady is not

       implicated, however, if the evidence “becomes known to the defendant before

       or during the course of a trial.” Williams v. State, 714 N.E.2d 644, 649 (Ind.

       1999). It is undisputed that the evidence at issue was both made known and

       provided to Sanders prior to trial. As such, Brady is not implicated. See id.


                                  II. Admission of Evidence
[10]           The admission or exclusion of evidence is entrusted to the
               discretion of the trial court. We will reverse a trial court’s
               decision only for an abuse of discretion. We will consider the
               conflicting evidence most favorable to the trial court’s ruling and
               any uncontested evidence favorable to the defendant. An abuse
               of discretion occurs when the trial court’s decision is clearly
               against the logic and effect of the facts and circumstances before
               the court or it misinterprets the law.


       Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012) (internal citations

       omitted). The trial court’s ruling will be upheld “if it is sustainable on any legal

       theory supported by the record, even if the trial court did not use that theory.”

       Rush v. State, 881 N.E.2d 46, 50 (Ind. Ct. App. 2008).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-684 | November 2, 2018   Page 5 of 10
                                           A. Text Messages
[11]   Sanders challenges the admission of State’s Exhibit 1 (“Ex. 1”), which provides

       a record of certain text messages sent between Sanders and his cousin Christina

       Cox, claiming that it was not properly authenticated.


               Indiana Rules of Evidence Rule 901(a) provides that “To satisfy
               the requirement of authenticating or identifying an item of
               evidence, the proponent must produce evidence sufficient to
               support a finding that the item is what the proponent claims it
               is.” Absolute proof of authenticity is not required. Rather, the
               proponent of the evidence must establish only a reasonable
               probability that the evidence is what it is claimed to be, and may
               use direct or circumstantial evidence to do so. Once this
               reasonable probability is shown, any inconclusiveness of the
               evidence’s connection with the events at issue goes to evidential
               weight, not admissibility.


       M.T.V. v. State, 66 N.E.3d 960, 963 (Ind. Ct. App. 2016) (internal citations

       omitted), trans. denied. “Letters and words set down by electronic recording and

       other forms of data compilation are included within Rule 901(a).” Id.

       “Testimony that an item is what it is claimed to be, by a witness with

       knowledge” is evidence that satisfies the authentication requirement. Ind. Evid.

       R. 901(b).


[12]   During trial, Cox identified the text messages as those sent between her and

       Sanders. She indicated that Ex. 1 appeared to be a full and complete copy of

       the text messages. Cox’s testimony established a reasonable probability that

       Ex. 1 was what the State claimed it to be. As such, we conclude that the trial

       court did not abuse its discretion in admitting Ex. 1 into evidence.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-684 | November 2, 2018   Page 6 of 10
                                B. Alleged Vouching Evidence
[13]   Sanders also challenges the admission of alleged vouching evidence in violation

       of Indiana Evidence Rule 704(b), which provides that witnesses “may not

       testify to opinions concerning … whether a witness has testified truthfully.” In

       Baumholser v. State, 62 N.E.3d 411, 415–16 (Ind. Ct. App. 2016), we concluded

       that testimony that victims of child molestation often delay disclosure was not

       improper vouching under Evidence Rule 704(b) because it did not include any

       opinion as to whether the alleged victim was telling the truth. In this case,

       Indianapolis Metropolitan Police Detective Justin Hickman, who investigated

       B.D.’s claims, testified that he had extensive experience interviewing potential

       child victims in molestation cases, having completed various training programs

       and investigated approximately 500 such cases. Detective Hickman further

       testified that approximately seventy-five percent of those 500 cases involved

       delayed disclosures. Like the testimony at issue in Baumholser, Detective

       Hickman’s testimony did not relate to the truth or falsity of B.D.’s allegations

       but, rather, related to his experience with the general behavior of alleged child

       molestation victims. The trial court did not err in admitting Detective

       Hickman’s testimony as it was not improper vouching. See id. at 416.


                              III. Sufficiency of the Evidence
[14]           When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. It is
               the fact-finder’s role, not that of appellate courts, to assess
               witness credibility and weigh the evidence to determine whether

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-684 | November 2, 2018   Page 7 of 10
               it is sufficient to support a conviction. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder could find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (citations, emphasis, and

       quotations omitted).


[15]   In this case, the record contains ample evidence from which one could

       reasonably find that Sanders committed the charged offenses. B.D. testified at

       length about the abuse that Sanders subjected her to. Specifically, she testified

       that she “would have to give [Sanders] hand jobs” before he would extend

       certain privileges. Tr. Vol. II p. 108. Sanders would make B.D. “jack him off,”

       remove her shirt, and “let him finish” on her chest. Tr. Vol. II p. 111.

       Eventually, the abuse escalated to the point “where [Sanders] would put his

       hands in [B.D.’s] pants and put his fingers inside of [her vagina]” and “where

       he would give oral [sex] to [her].” Tr. Vol. II p. 116. Once B.D. reached

       middle school, Sanders made repeated requests for sex. Also, at Sanders’s

       insistence, B.D. performed oral sex on him during her sophomore year in high

       school in exchange for him allowing her boyfriend to accompany the family on

       a vacation. The abuse was frequent, occurring “probably at least three times a

       week.” Tr. Vol. II p. 124.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-684 | November 2, 2018   Page 8 of 10
[16]   B.D.’s testimony was bolstered by evidence of Sanders’s admissions and

       expressions of remorse. B.D.’s mother testified that when confronted, Sanders

       did not deny the allegations, but rather merely indicated that he was sorry and

       that he did not know why he had repeatedly abused B.D. Likewise, Sanders

       told Cox during a phone conversation “that there was just touching here and

       there” and he did not “know why he does the things he does.” Tr. Vol. II p. 61.

       Sanders also expressed remorse during a series of text messages that he sent to

       Cox. These messages indicated that he was ashamed and regretted hurting his

       family, he “screwed up,” and he hated himself for what he had done to B.D.

       State’s Ex. 1.


[17]   In arguing that the evidence is insufficient to sustain his convictions, Sanders

       does not contest the sufficiency of the evidence to prove any particular count,

       but rather challenges B.D.’s credibility. Specifically, Sanders claims that B.D.’s

       testimony that “at no time did anyone almost walk-in or ever catch them in the

       act even though people would be home during the alleged instances” was “so

       inherently unbelievable.” Appellant’s Br. p. 14. Review of the record,

       however, reveals B.D.’s testimony to be consistent and credible. Sanders’s

       claim amounts to an invitation to both reweigh the evidence and reassess B.D.’s

       credibility, which we will not do. See Stewart v. State, 768 N.E.2d 433, 435 (Ind.

       2002) (providing that upon review, appellate courts do not reweigh the evidence

       or assess the credibility of the witnesses).


[18]   The judgment of the trial court is affirmed.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-684 | November 2, 2018   Page 9 of 10
Bailey, J., and Mathias, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-684 | November 2, 2018   Page 10 of 10
